Law of Torts

UNIT I
 • Tort is a civil wrong
• Which is not exclusively the breach of a contract or the breach of a
trust
• Unliquidated damages
• Tort and Crime (Private and Public wrong)
• Tort and Contract:
a. Donoghue V. Stevenson
b. Winterbottom V. Wright (Privity of Contract)
c. Klaus Mittelbachert V. East India Hotels Ltd.
• Tort and Breach of Trust
• Tort and Quasi Contract
• Law of Tort- every wrongful act for which there is no justification or
excuse- Winfield

• Law of Torts- Containing only a number of specific wrongs beyond which

the liability under this branch cannot arise- Pigeon-hole theory- Salmond

• Ashby V. White
 Essentials of a Tort
• Act or Omission
I. Glasgow corp v. Taylor
II. Municipal Corp of Delhi v. Subhagwanti
• Legal Damages:
a. Injuria Sine Damno- Violation of legal right without damages
I. Ashby V. White
II. Bhim Singh V. State of J & K
b. Damnum Sine Injuria- Damages without violation of legal right
I. Gloucester Grammer School Case
II. Seetharamayya v. Mahalakshmamma
III. Bradford Corp v. Pickles
 Mental Element in Tortious Liability
Mens Rea- Guilty Mind- required for crimes
Voluntary act and Involuntary act
• Fault when relevant- State of mind relevant
• Liability without Fault- mental element is irrelevant
Consolidated Co. V. Curtis
• Malice in Law – Legal Sense- a wilful act done without just cause or excuse.
• Malice in Fact – Popular sense- evil motive.
Bradford Corp v. Pickles
Town Area Committee v. Prabhu Dayal
• Motive is irrelevant in torts
Exceptions to the rule where malice/ evil motive becomes relevant in
determining liability under law of torts:
• When the act is unlawful and wrongful intention can be gathered from the
circumstances of the case.
• Malice or evil motive may result in aggravation of damages.
Balak Glass Emporium v. United India Insurance Co. Ltd.
• Tort of deceit, Conspiracy, malicious prosecution, wilful and malicious
damages to property, defamation & Injurious falsehood- Malice on the part
of defendant must be proved.
• Causing of personal discomfort by an unlawful motive may turn an
otherwise lawful act into nuisance.
Christie v. Davey
UNIT II
 General Defences
1. Volenti Non Fit Injuria:
• Defence of consent.
• A person consents to the infliction of some harm upon himself, he has
no remedy for that in tort.
• Voluntarily agrees to suffer harm by plaintiff.
a. Hall V. Brooklands Auto Racing Club
b. Wooldrige v. Sumner
c. Padmavati v. Dugganaika
d. Thomas v. Quartermaine
 • Consent must be free
• Consent should not be obtained by fraud
R v. Williams
• Consent Obtained under compulsion is not valid consent
Bowater v. Rowley Regis Corporation
• Mere Knowledge does not imply assent
Smith v. Baker
Imperial Chemical Industries v. Shatwell
Dann v. Hamilton
• Negligence of the defendant
Slater v. Clay Cross Co. Ltd.
Lakshmi Rajan v. Malar Hospital Ltd.
 Limitation on the Scope of the doctrine of Volenti non fit injuria:
I. Rescue cases
a. Haynes v. Harwood
b. Wagner v. International Railway
c. Baker v. T.E. Hopkins & Son
II. Unfair Contract Terms Act
• Limits the right of a person to restrict or exclude his liability resulting from negligence by a contract term or
by notice.
• Sec 2 of the act deals with negligence liability.
i. A person cannot by reference to any contract term or to a notice given to persons generally or to
particular persons exclude or restrict his liability for death or personal injury resulting from negligence.
ii. In the case of other loss or damage, a person cannot so exclude or restrict his liability for negligence
except in so far as the term or notice satisfies the requirement of reasonableness.
iii. Where a contract term or notice purports to exclude or restrict liability for negligence a person’s
agreement to or awareness of it is not of itself to be taken as indicating his voluntary acceptance of any
risk.
 2. Plaintiff the Wrongdoer
• No court will aid a person who found his cause of action upon an immoral or
an illegal act.
• Ex turpi causa non oritur actio- from an immoral cause no action arises.
• But under law of torts, the mere fact that the plaintiff was a wrongdoer does
not disentitle him from recovering from the defendant for the latter’s
wrongful act.
Bird v. Holbrook
• But if the unlawful or wrongful act on the plaintiff’s part is connected with
the harm suffered by him as part of the same transaction, then he has no
cause of action.
 3. Inevitable Accident
• Accident means an unexpected injury and if the same could not have been foreseen and
avoided, in spite of reasonable care on the part of the defendant, it is known as inevitable
accident.
• Not avoidable by any precautions as a reasonable man doing such act then and there
could be expected to take.
• Event Unforeseeable and consequences unavoidable in spite of reasonable precautions.
• Defence can be taken by defendant if he shows:
He neither intended to injure the plaintiff nor could he avoid the injury by taking
reasonable care.
I. Stanley v. Powell
II. Shridhar Tiwari v. U.P.S.R.T.C
III. Holmes v. Mather
IV. Brown v. Kendall
V. Padmavati v. Dugganaika
VI. S. Vedantacharya v. Highways Department of South Arcot
 4. Act of God
• Vis Major is a Latin term that means "superior force" and describes an
irresistible natural occurrence that causes damage or disruption.
• Working of natural forces without human intervention.
• Earth quack, heavy rainfall, storms etc.
• Not foreseen, cannot be guarded against
• Two important details:
I. Working of natural forces
II. Occurrence must be extraordinary and not one which could have been
anticipated and reasonably guarded against
Nichols v. Marsland
 5. Private Defence

• Law permits use of reasonable force to protect one’s person or property.

• Force - reasonable and necessary for self-defence

1. Bird v. Holbrook

2. Ramanuja Mudali v. M Gangan

 6. Mistake
• Mistake of fact or of law is no defence under torts

• Consolidated Co. v. Curtis

7. Necessity
• An act causing damage, if done under necessity to prevent a greater evil is not actionable even
though harm was caused intentionally.
1. Cope v. Sharpe
2. Carter v. Thomas
3. Kirk v. Gregory
 8. Statutory Authority
• The damages resulting from an act, which the legislature authorizes or directs to be done, is not
actionable even though it would otherwise be a tort.

• Immunity under statutory authority is not only for the harm which is obvious but also for that harm
which is incidental to the exercise of such authority.

1.Vaughan v. Taff Valde Rail Co.

2.Hammer Smith Rail Co. v. Brand

3.Smith v. London & South Western Railways Co.

• The statute may give- Absolute or Conditional authority

Metropolitan Asylum District v. Hill

 Discharge of Tort/ Tortious Liability
1. Death of the parties-
• ‘Actio personalis moritur cum persona’ which means if the person dies his personal right of action
dies with him.
• There can be two situations in case of death of parties:
a) Death of wronged person against whom the tort is committed.
b) Death of wrongdoer who has committed tort.
• Prusti v. Mohanty
• Exceptions to the maxim of ‘Actio personalis moritor cum persona’:
i. The Legal Representative Suits Act
ii. Fatal Accident Act
iii. Indian Succession Act
iv. Workmen Compensation Act
2. By Waiver:
The main two principles lying in the doctrine of Waiver are:
i. The person has to choose any one remedy.
ii. If the person fails to get the remedy he chooses, the court of law does not allow him to
go back to an alternative remedy.
3. Accord and Satisfaction:
• Concept of accord means when the parties of the tort i.e. the person who commits the
tort and the person against whom the tort has been committed, come to an agreement
and settle the dispute.
• Satisfaction means the actual payment of consideration agreed by both, the person who
commits a tort and the one against whom the tort committed.
4. Release:
A Release means giving up the right to the action. It means when a person by his own choice
discharged the tort. This right is only provided to the person against whom the wrong has
been done.
5. Judgement:
• The discharge of tort happens by the judgement given by the court. If once the court gives judgement on
the matter, the tort gets discharged, no appeal for the same act of tort can be claimed for the same remedy
in the court of law.
• Res-Judicata- it means, if any cause of action decided previously by the court, the same cause of action
should not be entertained by the court twice.
• Nemo Debet Bis Vexari Pro Una Et Endem Causa- No one shall be tried/ punished twice in regard to the
same event.
• Fitter v. Veal
Exceptions
• If the petition was between the same party but is for different remedy or the action taken in respect to the
violation of another right. Then the petition can be allowed.
Brunsden v. Humphrey
• If the person who is liable for the act previously does the same act another time.
6. Acquiescence:
• In this method, the tort gets discharged because of the incapacity of the plaintiff
himself i.e. if he has no time to go to court, no money to pay the court fees, or any
other incapacity. When any person is entitled to enforce his right, and he doesn’t
enforce his right for a long time, this makes other party waived from his liability.
7. Law of limitation:
• Under this method the tort gets dismissed due to the limitation i.e. when the
prescribed time limit to file the case gets over, in this situation the tort gets dismissed
and no person is entitled to enforce his right.
• The main objective of the Limitation Act,1963 is to provide a specific time frame
within which a person can file a suit in a court.
• Delay defeats Equity
 Remoteness of Damages
• Remoteness of damage is an interesting principle.
• Once the damage is caused by a wrong, there have to be liabilities.
The question is how much liability can be fixed, and what factor
determines it.
• The principle of Remoteness of Damages is relevant to such cases.
• An event constituting a wrong can constitute of single consequence
or may constitute of consequences i.e. series of acts/wrongs. The
damage may be proximate or might be remote, or too remote.
• In law, the damage must be direct and the natural result of the consequence of
the act of the defendant. Otherwise, the plaintiff will not succeed. This is In jure
non remota causased proxima spectatur (In law the immediate, not the remote
cause of any event that is to be considered). The reason for this is that the
defendant is presumed to have intended the natural consequences, but not the
remote damage. It means then that the defendant's act must be the Causa
Causans or the proximate (near) cause.
• Novus actus interveniens: (new act intervening)- The act and the consequences
are to be connected directly and the defendant will not be liable for Novus actus
interveniens and the consequences thereof.
 It is not necessary that the event which is immediately connected with the consequences
is proximate and that further from it is too remote.
a. Scott v. Shepherd (Squib case)
b. Haynes v. Harwood
c. Lynch v. Nurdin
Two tests to find out direct damage.
I. The test of reasonable foresight.
Wagon Mound Case ( Overseas Tankship Ltd v. The Miller Steamship Co.)
II. The test of directness.
Re Polemis & Furness, Wilthy & Co.
 Remedies
Judicial Remedies:
1. Damages:
a) Nominal Damages
i. Constantine v. Imperial London Hotels Ltd.
ii. Ashby v. White
b) Contemptuous Damages
c) Compensatory Damages
d) Exemplary/ Punitive Damages
i. Bhim Singh v. State of J & K
ii. Rudal Sah v. State of Bihar
e) Prospective Damages
Subhash Chander v. Ram Singh
 Measures of Damages for Personal Injury
• Personal Pain and suffering and loss of enjoyment of life
• Actual Pecuniary loss resulting in any expenses reasonably incurred by the
plaintiff and
• The probable future loss of income by reason of incapacity or diminished
capacity of work.
i. Laxminarayan v. Sumitra Bai
ii. Rehana v. Ahmedabad Municipal Transport Service
iii. Union of India v. Savita Sharma
iv. KSRTC V. Krishna
v. Klaus Mittelbachert v. East India Hotels Ltd.
 • Attendant’s expenses- Damages for personal injury also include payment to
procure the attendance of somebody whose service becomes reasonably
necessary as a consequence of the accident.
i. Veeran v. Krishnamoorthy
ii. Schneider v. Eisovitch
iii. Donnelly v. Joyce
• Interest on damages
• Damages in case of shortening of life:
i. Yorkshire Electricity Board v. Naylor
ii. Gobald Motor Service Ltd. v. Veluswami
iii. Dhangauriben v. M.Mulchandbhai
2. Injunctions:
• Injunction is an equitable remedy available in torts, granted at the
discretion of the court.
• An equitable remedy is one in which the court, instead of compensating
the aggrieved party, asks the other party to perform something or not to
do something.
• So, when a court asks a person not to continue doing something, or to do
something positive so as to recover the damage of the aggrieved party,
the court is granting an injunction.
a. Temporary/ Interlocutory Injunction
b. Perpetual Injunction
c. Prohibitory Injunction
d. Mandatory Injunction
3. Specific Restitution of Property:

The third judicial remedy available in the Law of Torts is that of Specific
Restitution of Property. Restitution means restoration of goods back to
the owner of the goods. When a person is wrongfully dispossessed of
his property or goods, he is entitled to the restoration of his property.
 Extra Judicial Remedies
• Recourse to remedies outside the court of law- Extra Judicial Remedies
• Remedies by using his own strength- self help.
a. Re-entry to Land
b. Recaption of Chattels
c. Distress Damage Feasant
d. Abatement to Nuisance
e. Expulsion of Trespasser
f. Private Defence
 Parental and Quasi- Parental Authority
• Parents have certain rights/ authority over their child and some responsibilities
towards the child like right to give education, right to determine the religion, right
to custody, right to supervision etc.
• Quasi – parental come from the Latin word “loco parentis” means ‘in the place of
parents’. Quasi parental authority have less rights then the parental authority.
 Judicial and Quasi-Judicial Acts
• The acts that are done by a particular competent authority, by looking upon the facts and the
circumstances of the situation are judicial acts. They are done in the manner of court proceedings
and impose the liabilities on the guilty and try to save the rights of the other person. They follow a
strict procedure to go on. These acts are done by the judges of the court when they give decisions on
any case using the particular laws or the judges may even create laws while passing judgements. The
judges are bound by the law to give decisions by following the complete court procedure.
• The word ‘quasi’ holds a Latin origin and means ‘similar to but not exactly’. The quasi-judicial acts are
not exactly court proceedings. They may seem to derive the powers and functions of some laws, but
they are still not considered as courts. Quasi-judicial is also known as a non-judicial body which has
the ability to interpret law. It is an entity or an agency, which has powers and procedures that
resemble a court of law or judge, and which is obliged to determine facts and draw conclusions from
them so as to provide the basis of an official action.
UNIT III
 Capacity
1. Act of State:
• An act done in exercise of sovereign power in relation to another state and it cannot be questioned by municipal
courts.
i. Buron v. Denman
ii. Secretary of State in Council of India v. Kamachee Boye Saheba
iii. Hardial Singh v. State of Pepsu
▪ Nabha- gift to Singh- ‘Malwa House’. Subsequenctly state of Nabha merged in PEPSU.
▪ PEPSU formed on 20-08-1948. Repudiated the gift in 1952.
i. State of Saurashtra v. Memon Haji Ismail
▪ 17-11-1941: Nawab gifted property
▪ After Independence, Nawab of Junagarh became a sovereign but did not accede to India
▪ 9-11-1947 & 14-11-1947: Govt, of India appointed administrator
▪ Feb 1948: People in Junagarh voted in favour of accession
▪ 21-1-1949- Junagarh state merged with India
▪ 18-11-1947- Indian Administrator passed an order declaring the gift invalid and cancel the grant.
2. Corporations:
• Artificial person distinct from its members.
• Separate legal entity- can sue and be sued.
i. Poulton v. L. & S.W. Ry.
ii. Campbell v. Paddington Corpt.
3. Minor:
• A minor has a right to sue like an adult with the only procedural difference that
he cannot himself sue but has to bring an action through his next friend.
i. Walker v. G.N. Ry. Co. of Ireland
ii. Montreal Tramways v. Leveille
• The same act of minor may result in two wrongs- tort and breach of contract.
• There may be certain cases of torts which may originate in a contract but the
wrongful act may be considered to be totally outside the contract.
i. Jennings v. Rudall
ii. Bunard v. Haggis
• Liability of parents for Children’s torts
i. Bebee v. Sales
4. Independent and Joint Tortfeasors:
• When 2 or more person commit some tort against the same plaintiff, they
may be either independent or joint tortfeasors.
• The Koursk Case
• The courts in India- when two or more person are responsible for a
common damage (Whether acting independently or jointly), they have
been termed as composite tortfeasors.
• Release of a Joint Tortfeasor:
i. Cutler v. Mcphail
ii. Shiv Sagar Lal v. Mata Din
iii. Ram Kumar v. Ali Hussain
iv. Khusro v. N.A.Guzder
 • Rights of Tortfeasors:
a. Contribution
Merryweather v. Nixon
Khushalrao v. Bapurao Ganput Rao
b. Indemnity
Adamson v. Jarvis