General Conditions of Tortious Liability.
The term ‘tort’ is a French equivalent of the English word ‘wrong’. Simply
stated ‘tort’ means wrong. But every wrong or wrongful act is not a tort.
Tort is really a kind of civil wrong as opposed to criminal wrong. Wrongs,
in law, are either public or private. Section 2(m) of the Limitation Act,
1963, states: “Tort means a civil wrong which is not exclusively a breach
of contract or breach of trust.” Thus, two important elements can be
derived from above definitions, are: (i) that a tort is a species of civil
injury of wrong as opposed to a criminal wrong, and (ii) that every civil
wrong is not a tort.
Tort consists of an act or omission by the defendant which causes damage
to the claimant. The damage must be caused by the fault of the defendant
and must be a kind of harm recognised as attracting legal liability.
Tortious liability refers to the legal obligation to compensate for harm or
injury caused to another person due to a civil wrong, such as negligence,
intentional harm, or strict liability. In general, a tort consists of some act
done by the defendant whereby he has without just cause or excuse caused
some form of harm to the plaintiff. The fundamental principle of this
branch of the law is alterum non laedere- to hurt nobody by word or deed.
An action of tort, therefore, is usually a claim for pecuniary compensation
in respect of damage suffered as the result of the invasion of a legally
protected interest. However, the law of tort fails to provide adequately for
the injury other than physical, done maliciously or carelessly.
Illustration:
a. A drives his vehicle irresponsibly, causing it to ascend the pavement and
collide with B, a pedestrian, injuring B. A is driving the automobile in the
act. This action has caused B harm. The harm was caused by A's
negligence, hence it was his fault. Personal harm, as sustained by B, is
recognized by law as attracting responsibility. In the tort of negligence, A
will be accountable to B, and B will be entitled to seek damages.
b. Samantha, a restaurant owner, is responsible for maintaining the safety
of her establishment. One evening, she neglects to repair a broken step
leading to the restroom, despite being aware of the hazard. John, a
customer, unknowingly uses the restroom, and on his way back, he
stumbles on the broken step, injuring himself. Samantha's negligence in
failing to fix the step has caused John harm. In a negligence lawsuit, John
could hold Samantha accountable for his injuries and seek compensation
for the damages he suffered. This is a typical scenario in tort law where
negligence leads to personal injury, and the responsible party is held liable
for the harm caused.
General Conditions of Liability in Tort:
1.wrongful act or omission: A wrongful act or omission in tort law refers
to an action (act) or failure to act (omission) that violates a legal duty owed
to another person, resulting in harm or injury. These actions or omissions
may give rise to a legal cause of action, allowing the injured party to seek
compensation for the damages they have suffered. In essence, it involves
conduct that falls below the standard of care expected in a given situation,
leading to harm to another individual.
Example:
a. A lifeguard, who has a duty to monitor and ensure the safety of
swimmers, is distracted by their phone and fails to notice a
swimmer in distress. The swimmer, unable to receive timely
assistance, drowns. The lifeguard's wrongful omission in
neglecting their duty to monitor the pool and rescue swimmers in
need of help constitutes a wrongful omission in tort, which led to
the swimmer's death.
b. A security guard is responsible for monitoring surveillance
cameras in a large shopping mall to ensure the safety of shoppers
and prevent theft. One day, the security guard becomes engrossed
in a personal conversation with a colleague, neglecting their duty
to watch the cameras. During this time, a thief discreetly shoplifts
valuable items from multiple stores within the mall. The security
guard's failure to monitor the cameras and prevent theft constitutes
a wrongful omission in neglecting their duty, which results in
financial losses for the stores and potential harm to shoppers due to
increased theft.
Exceptions:
A. No Duty: In some cases, there may be no legal duty owed to the injured
party, and therefore, no wrongful act or omission. For instance, if a
passerby does not intervene to help a person in a car accident, they
typically do not have a legal duty to do so, unless they have a special
relationship or obligation.
If someone witnesses a stranger walking on a public sidewalk and
suddenly fainting due to a medical condition, there is generally no legal
duty for the passerby to render assistance, unless they have a specific legal
obligation or a pre-existing duty, such as being a healthcare professional or
lifeguard on duty.
B. Legally Justified Actions: Actions or omissions may be legally
justified.
For example, a police officer may use reasonable force when necessary to
apprehend a suspect, and such actions are not considered wrongful. A
doctor may administer medication to a patient when necessary to treat a
medical condition, and such actions are not considered wrongful
C. Statutory Immunity: In some situations, government officials or
entities may have statutory immunity, protecting them from liability for
certain actions or omissions in the course of their duties.
Case References:
a.Donoghue v Stevenson (1932): This landmark case established the
modern concept of duty of care in negligence. In this case, a woman
consumed a bottle of ginger beer and found a decomposed snail inside,
causing her to fall ill. The manufacturer was held liable for negligence in
producing the beverage.
b.Palsgraf v Long Island Railroad Co. (1928): This case is a notable
example of the "proximate cause" element in negligence. A fireworks
explosion at a train station injured a passenger, and the court had to
determine if the railway company's actions were the proximate cause of
the injury.
c.Blyth v Birmingham Waterworks Co. (1856): This case emphasizes the
principle of negligence and standard of care. The Birmingham Waterworks
Company was held liable for negligence because they did not maintain the
water mains properly, leading to damages caused by a burst pipe.
A tort requires proving the defendant's act or omission, and damage
caused. It may also require proving a specific state of mind, such as
intention, negligence, or malice.
2.Malice: In tort law, malice refers to a deliberate intention or reckless
disregard for the well-being and rights of others, resulting in wrongful
actions. This intentional act, often based on intentional tort claims, is often
willful and without lawful justification, causing harm to another person.
Malice plays a significant role in determining the basis for intentional tort
claims. So, malice is “a wrongful act, done intentionally, without just
cause or excuse".
Example:
a. Alice, out of jealousy, spreads false rumors about Bob, claiming
that he is involved in criminal activities. She knows these rumors
are untrue, but she intentionally spreads them to damage Bob's
reputation and cause him emotional distress. In this scenario,
Alice's actions can be considered malicious, as she deliberately
aimed to harm Bob without legal justification.
b. Sarah, out of spite, creates a fake social media account in John's
name and starts posting offensive and defamatory comments about
him. She knows that John has done nothing to deserve this, but she
intentionally does it to tarnish his reputation and create emotional
distress in his life. Sarah's actions in this scenario are malicious, as
she is deliberately seeking to harm John without any legitimate
reason or justification
Exceptions: While malice is generally associated with intentional torts,
there are exceptions or variations in different jurisdictions. Some
exceptions include:
a.Conditional Privilege: In certain situations, individuals may have a
conditional privilege to make statements or take actions that would
otherwise be considered malicious.
For example, statements made by witnesses in court or employees giving
honest, negative references about a former coworker may be conditionally
privileged.
b.Qualified Privilege: Some statements are protected by qualified
privilege when made in good faith and with a legitimate interest, such as
providing information to protect the public interest.
c. Self-Defense and Defense of Others: Actions taken in self-defense or
to defend others from harm are generally not considered malicious, as they
are justified by the need to protect oneself or others from imminent harm.
d.Strict Liability: In some cases, a defendant can be held liable for harm
caused without showing malice or intent. Strict liability applies in
situations where inherently dangerous activities, such as storing and
transporting hazardous materials, can lead to harm regardless of the
defendant's intent.
e.Public Figures in Defamation: When it comes to defamation, public
figures must typically prove actual malice (knowingly false statements or
reckless disregard for the truth) to succeed in a lawsuit. However, private
individuals may not need to demonstrate malice to prevail in a defamation
claim.
f.Consent: In certain cases, consent may provide a legal defense against
an intentional tort claim, even if malice would otherwise be present.
For instance, a consensual contact sport may not result in liability for
injuries.
Case References:
a.Gertz v. Robert Welch, Inc. (1974): This case is a notable reference in
defamation law, where the court discussed the concept of actual malice in
the context of defamation of a public figure. The court ruled that public
figures must prove that defamatory statements were made with actual
malice to succeed in a defamation lawsuit.
b.Garratt v. Dailey (1955): This case is an example of the concept of
malice in the context of the intentional tort of battery. It highlights the
importance of intent and malice in determining liability for battery.
c.Vosburg v. Putney (1891): This case is often cited in the context of
trespass to the person, particularly assault. It provides insights into the
concept of intent and malice in determining liability for intentional torts.
3. Motive: Motive refers to a person's reason or intention behind their
actions, but it is distinct from intent. Motive is the underlying thought or
feeling that drives a person to commit a tortious act. Unlike intent, motive
does not necessarily determine liability in tort cases, but it can be relevant
in some situations. To clarify:
Intent: Intent refers to the desire to bring about a specific result or the
knowledge that a particular result is likely to occur as a result of one's
actions. Intent plays a crucial role in many intentional torts.
Motive: Motive, on the other hand, relates to the underlying reason or
purpose for the action, which may or may not align with the intent to cause
harm.
Examples:
a. Alice owns a small business, and she decides to fire an employee,
Bob, because she wants to replace him with her cousin, Carol, even
though Bob has been a loyal and hardworking employee. Alice's
motive for firing Bob is to give the job to her cousin. In this case,
Alice's motive may not directly affect her liability in a wrongful
termination lawsuit. What matters is whether Alice's action was
illegal, such as if Bob was fired due to discrimination, in violation
of a contract, or in retaliation for whistleblowing.
b. Sarah is a restaurant manager, and she decides to promote her
friend, John, to a supervisor position even though there are more
qualified employees on her staff. Sarah's motive for promoting
John is to help him out, as he's been going through a tough time. In
this case, Sarah's motive may not directly affect her liability in a
workplace discrimination lawsuit. What matters is whether Sarah's
decision to promote John was based on discriminatory factors
(such as gender, race, or age) or if it violated any workplace
policies, like favoritism without valid reasons.
Exceptions: While motive is generally not a critical element in tort law,
there are some exceptions where it might be relevant:
A. Malicious Intent: In certain torts, such as intentional torts, a specific
motive or intent to harm may be essential. For instance, in a case of
assault or battery, the defendant's motive to cause fear or physical harm
can be a critical element in proving the claim.
B. Defamation: In a defamation case, the plaintiff may need to prove
that the defendant made false statements with actual malice or a
knowing disregard for the truth. In this context, the defendant's motive
or awareness of the falsity of the statement can be relevant.
C. Discrimination: In cases of discrimination, particularly under civil
rights laws, the motive behind the discriminatory act can be crucial.
Plaintiffs may need to demonstrate that they were discriminated against
due to specific motives such as race, gender, or religion.
D.Negligence Tort: In cases of negligence, the defendant's motive is
typically not relevant. What matters is whether the defendant breached a
duty of care and caused harm to the plaintiff due to their actions. For
example, if a store owner leaves a slippery floor unmarked and a
customer slips and falls, the customer can sue for negligence based on
the unsafe condition, regardless of the store owner's motive.
E. Strict Liability Tort: In strict liability cases, such as product liability,
motive is generally not a consideration. If a defective product causes
harm to a consumer, the manufacturer may be held strictly liable for the
injury, regardless of their motive in producing the product.
F. Respondeat Superior: Under the doctrine of respondeat superior,
employers can be held liable for the actions of their employees if those
actions occur within the scope of employment. In such cases, the motive
of the individual employee is not typically relevant. For example, if an
employee of a delivery company injures someone while making a
delivery, the company can be held liable for the employee's actions,
regardless of the employee's motive.
In these exceptions, the plaintiff might need to provide evidence of the
defendant's motive or intent to establish liability or to claim punitive
damages. However, in most negligence cases and many other tort claims,
the focus is primarily on the actions and their consequences rather than
the motive behind those actions.
Case References:
1.Molien v. Kaiser Foundation Hospitals (1980): This case involved a
medical malpractice claim where the plaintiff, Molien, alleged that a
doctor falsely diagnosed him with syphilis, causing emotional distress.
The issue of the doctor's motive and intent played a role in determining
liability for intentional infliction of emotional distress.
2.New York Times Co. v. Sullivan (1964): This landmark case involves
defamation. The Supreme Court ruled that to establish liability for
defamation against a public figure, the plaintiff must prove that the
defendant acted with "actual malice," which includes knowledge of
falsity or reckless disregard for the truth. The defendant's motive and
state of mind are central in cases like this.
3.Palsgraf v. Long Island Railroad Co. (1928): While this case is
primarily known for its discussion of proximate cause, it indirectly
touches on motive. The case involved a person injured by falling scales
at a train station. Here, the court focused on the defendant's actions and
whether they could have foreseen the harm to the plaintiff. The
defendant's motive was not a key element in determining liability.
4. Legal Damage: Legal damage in tort refers to the actual harm or
injury suffered by a plaintiff that is recognized by law as the basis for a
valid tort claim.It is not every damage that is a damage in the eye of the
law. It must be a damage which the law recognizes as such. In other
words, there should be legal injury or invasion of the legal right. In the
absence of an infringement of a legal right, an action does not lie. Also,
where there is infringement of a legal right, an action lies even though
no damage may have been caused. In order to succeed in a tort case, a
plaintiff must demonstrate that they have suffered a legally recognized
harm as a result of the defendant's wrongful conduct. Legal damage is a
fundamental element in establishing liability and seeking compensation
in tort cases.
Examples of Legal Damage in Tort:
1.Personal Injury: In a case of personal injury, such as a car accident
caused by the negligence of one driver, the physical harm suffered by the
other driver or passengers, like broken bones or whiplash, constitutes
legal damage. The injured party can file a tort claim seeking
compensation for medical expenses, pain, and suffering.
2.Property Damage: If someone intentionally damages another person's
property, like breaking their windows or vandalizing their car, the cost of
repairing or replacing the damaged property is considered legal damage.
The property owner can file a tort claim to recover these damages.
There are two maxim of legal damage in tort.
1. Damnum sine injuria.
2. Injuria sine damnum.
Damnum Sine Injuria: Damnum means harm, loss or damage in
respect of money, comfort, health, etc. Injuria means infringement of a
right conferred by law on the plaintiff. The maxim means that in a given
case, a man may have suffered damage and yet have no action in tort,
because the damage is not to an interest protected by the law of torts.
Therefore, causing damage, however substantial to another person is not
actionable in law unless there is also a violation of a legal right of the
plaintiff. Thus, if I own a shop and you open a shop in the neighborhood,
as a result of which I lose some customers and my profits fall off, I
cannot sue you for the loss in profits, because you are exercising your
legal right.
For example, A, a shop owner sells stationery items to primary school
students for three years and next to A's shop, B opens another stationary
shop and sells his items at a lower price compared to A's. Now, A cannot
sue B as he did not violate any of the legal rights of A because by
opening a shop just next to A is no illegal act. Therefore, in this case,
although A suffered sufficient monetary loss in his business , he cannot
sue B for opening another stationary shop. So, we can say A was a
victim of Damnum Sine Injuria
A person committing Damnum Sine Injuria cannot be sued in the court
of law.
In Gloucester Grammar School's case, the defendant was a teacher
who was teaching in Gloucester Grammar school and due to some
disputes he left the school and opened his own school and even reduced
the fees from 40 pence, which was charged in Gloucester Grammar
School to 12 pence. As a result, the students started leaving the
Gloucester Grammar school and joined the defendants school due to the
lower fees. This resulted in a loss for the Gloucester school.
The plaintiff sued the defendant for trespassing their franchise and
demanded damages caused by for the monetary loss caused by the
defendant. The court held that the defendant who opened the rival school
would not be liable for the monetary loss that occurred to the plaintiff.
Though there has been loss suffered to the plaintiff by the act of the
defendant, still he would not be getting any damages for the monetary
loss by the defendant.The court also held that this case covers the
essentials of the maxim Damnum Sine Injuria and therefore the
defendant did not violate any legal right of the plaintiff even though the
plaintiff suffered monetary loss. Therefore, the plaintiff was not given
any damages for his monetary loss as the essentials of Damnum Sine
Injuria were met.
Injuria Sine Damnum: It means injury without damage, i.e., where
there is no damage resulted yet it is an injury or wrong in tort, i.e. where
there is infringement of a legal right not resulting in harm but plaintiff
can still sue in tort. Some rights or interests are so important that their
violation is an actionable tort without proof of damage. Thus when there
is an invasion of an “absolute” private right of an individual, there is an
injuria and the plaintiff’s action will succeed even if there is no Damnum
or damages. Where a person was wrongfully not allowed to vote and
even though it has not caused him any damage, since his legal right to
vote was denied, he was entitled to compensation. An absolute right is
one, the violation of which is actionable per se, i.e., without the proof of
any damage.
For example, A, a person was on his way to give his vote to favorite
leader but he was not allowed by B to give the vote as he did not have
necessary documents to show that he was an eligible voter. A, kept on
saying that he was an eligible voter and was backed by necessary
documents to prove his eligibility. B, still did not allow him to vote.
However, the candidate whom A wanted to vote won and as a result no
such damage was caused to him. But B was held guilty of Injuria Sine
Damnum as not allowing a person to give vote is a violation of legal
right of A, no matter what was the outcome of the result.
In the case of Ashby vs White, the plaintiff was a qualified voter at the
parliamentary elections which were held at that point of time. The
defendant , a returning officer wrongfully refused to take the plaintiff's
vote. The plaintiff, however suffered no damage since the candidate
whom he wished to vote had already won the election, but still the
defendant was held guilty by the court.
The court held that damage is not merely pecuniary but injury imports a
damage, so when a man is hindered of his legal rights, he is entitled to
remedies. Hence , according to the meaning of the maxim Injuria Sine
Damnum , the defendant was held guilty and was liable to pay damages
to the plaintiff, although no damage was caused to him but by the act of
the defendant , the plaintiff suffered a violation of his legal right to vote.
Hence, the court said that the plaintiff was entitled to damages by the
defendant.
Exceptions
There are certain exceptions and limitations to what is recognized as
legal damage in tort cases. Here are two common exceptions:
a.Pure Economic Loss: In some cases, purely economic losses without
any physical harm or property damage may not be considered legal
damage. For example, if a contractor's negligent work on a construction
project causes financial losses to the project owner, it may not be
recognized as legal damage unless there was physical damage or
personal injury as a result of the negligence.
b.Nervous Shock and Psychiatric Injury: While emotional distress
may be recoverable in some tort cases, there are limits. In many
jurisdictions, a person may not be able to claim legal damage solely
based on nervous shock or psychiatric injury without physical harm or
some other recognized trigger. For instance, witnessing a loved one's
gruesome accident may lead to emotional distress, but it may not always
be considered legal damage in the absence of physical injury.
Case References:
a.Donoghue v Stevenson (1932) - This landmark case in the United
Kingdom established the principle of duty of care in negligence, which
is a fundamental aspect of tort law. In this case, legal damage was
established when a woman consumed a bottle of ginger beer containing
a decomposed snail, causing her to become ill.
b.Spartan Steel & Alloys Ltd. v Martin & Co. Ltd. (1973) - This case is
an example of the economic loss exception in tort law. The House of
Lords held that a defective product that caused purely economic losses
(financial loss due to a machinery breakdown) was not a valid basis for a
negligence claim in the absence of personal injury or property damage.
c.Alcock v Chief Constable of South Yorkshire Police (1992) - This
case illustrates the limits on claims for emotional distress and nervous
shock in tort law. The House of Lords ruled that the families of
Hillsborough disaster victims who suffered psychiatric injury as a result
of witnessing the tragedy were not entitled to recover damages in the
absence of physical injury or some recognized trigger.
5.Legal remedy: A legal remedy in tort refers to the relief or
compensation provided by the legal system to a party who has suffered
harm or loss due to the wrongful act or negligence of another party. It is
a means by which the injured party seeks redress and is often in the form
of monetary compensation. Legal remedies in tort aim to compensate the
victim for the harm they have suffered and, in some cases, deter future
wrongful conduct. This means that to constitute a tort, the wrongful act
must come under the law. The main remedy for a tort is an action for
unliquidated damages. Some other remedies i.e. Injunction, Damages or
Specific Restitution may also be claimed. The maxim ubi jus ibi
remedium means that ‘where there is a right there is a remedy’.
Example:
a. Alice is driving her car negligently and rear-ends Bob's vehicle,
causing significant damage to Bob's car and resulting in injuries. In
this case, Bob may seek a legal remedy in tort by filing a lawsuit
against Alice to claim compensation for the damage to his vehicle,
medical expenses, and pain and suffering.
b. Samantha is walking her dog in a public park, and her dog, who is
not on a leash, suddenly attacks and bites Michael, who is also in
the park. Michael sustains serious injuries as a result of the dog
bite. In this case, Michael may seek a legal remedy in tort by filing
a lawsuit against Samantha to claim compensation for his medical
expenses, pain and suffering, and any other damages resulting from
the dog attack.
In Ashby v White, it was observed that “if the plaintiff has a right, he
must of necessity have a means to vindicate and maintain it, and a
remedy if he is injured in the exercise or enjoyment of it for every man
who is injured ought to have recompense.”
Exceptions to Legal Remedies in Tort:
a.Sovereign Immunity: In some cases, government entities may be
immune from certain tort claims. This means that individuals may not be
able to sue the government for tortious actions in some situations. For
example, if a person is injured due to a road defect, they may not be able
to sue the government if it's protected by sovereign immunity.
b.Statute of Limitations: A statute of limitations sets a time limit
within which a tort claim must be filed. If the time limit expires, the
injured party may lose the right to seek legal remedies. For example, in
some jurisdictions, the statute of limitations for a personal injury claim
might be two years from the date of the injury.
c.Contributory or Comparative Negligence: In cases where the
injured party contributed to their own harm, the legal remedy may be
limited or reduced. In contributory negligence states, if the injured party
is found even slightly at fault, they may be barred from any recovery. In
comparative negligence states, the remedy may be reduced based on the
degree of the injured party's fault. For example, if Sue is injured in a car
accident but was partially at fault, her compensation might be reduced in
a comparative negligence system.
Case References:
a.Sovereign Immunity Exception Case: Barr v. Matteo, 360 U.S. 564
(1959) - This case discussed the extent of immunity government officials
have from being sued for torts committed during the course of their
official duties.
b.Statute of Limitations Exception Case: Perez v. Miami-Dade
County, 478 So. 2d 5 (Fla. Dist. Ct. App. 1985) - This case addressed the
application of the statute of limitations in a tort claim against a
government entity for injuries caused by a defective sidewalk.
c.Comparative Negligence Exception Case: Li v. Yellow Cab Co., 13
Cal. 3d 804 (1975) - This case is an example of how the legal remedy
can be affected in a jurisdiction that follows the principle of comparative
negligence, where the injured party's recovery is reduced based on their
degree of fault in a personal injury case.
