Introduction

The word tort has been derived from the Latin

term ‘tortum’ which means ‘to twist’. It includes that
conduct which is not straight or lawful but on the other
hand, twisted, crooked or unlawful.

 It is equivalent to the English word “wrong” and

Romanian law’s term “delict”. A tort arises when a
person’s duty towards others is affected, an
individual who commits a tort is called a tortfeasor,
or a wrongdoer. And where there are multiple
individuals involved, then they are called joint
tortfeasors. Their wrongdoing is called as a tortious
act and they can be sued jointly or individually.

Section 2(m) of the Limitation Act,1963, Addresses tort as

being a civil wrong which is not just exclusively a breach of
contract or a breach of trust.
The main aim of the Law of Torts is the compensation of
victims.

Three primary categories of torts

Example: Violation of a duty to injure someone else's
reputation results in the tort of defamation, violation of a
duty not to interfere with the possession of the land of
another person result in the tort of trespass etc.

Some Important Definitions of Tort

While no specific definition of tort has been possible which
could be unanimously agreed by all the thinkers, certain
attempts to define tort have been made, and will be listed
below:

 Winfield says “Tortious liability arises from the

breach of a duty primarily fixed by law; this duty is
towards persons generally and its breach is
redressible by an action or unliquidated damages.”
 Salmond says “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
contract or the breach of a trust or other merely
equitable obligation.”
 Black’s Law Dictionary defines a tort as a civil
wrong for which a remedy may be obtained, usually
in the form of damages.
 Fraser’s Definition: Tort is an infringement of a
right in rem (right in general) of a private individual
giving a right of compensation at the suit of the
injured party.
 Pollock says “A tort is an act or omission (not
merely the breach of a duty arising out of personal
relations, or undertaken by a contract which is
related to harm suffered by a determinate person,
giving rise to a civil remedy which is not an action of
contract.”

Objective of Torts
 To determine rights between the parties to a dispute.
 To prevent the continuation or repetition of harm i.e.
by giving orders of the injunction.
  To protect certain rights of every individual recognized
by law i.e. a person’s reputation.
 To restore one’s property to its rightful owner i.e.
where the property is wrongfully taken away from its
rightful owner.

Nature of Torts
A tort is a civil wrong: Tort belongs to the category
of civil wrong. The basic nature of civil wrong is that
in such cases the main remedy is damaged. The
plaintiff is compensated by the defendant for the
injury caused to him by the defendant.
 Tort and breach of contract: The liability under the
law of tort arises from breach of duty fixed by law;
while in the case of a contract, the duty is fixed by
the parties themselves.
 In tort, the duty is fixed by law and as such a person
may have to pay the penalty or damages for he may
not intend to cause any loss, or he may himself have
not committed any wrong but is liable for the actions
of his servant.
 A tort is redressible by an action for unliquidated
damages: Damages is the most important remedy
for a tort. This is because, after the commission of
the wrong, it is generally not possible to under the
arm which has already been caused.
Damages in the case of a tort are unliquidated.
Unliquidated damages are those where the
compensation has not been previously determined,
but the determination of the same is left to the
discretion of the court.

Essentials of a Tort
 There must be some act or omission on the part
of the defendant: In order to make a person liable
 for a tort, he must have done some act which he was
not expected to do or must have omitted to do
something which he was supposed to do. Similarly,
when there is a legal duty to do some act and a
person fails to perform that duty, he can be made
liable for such omission.
 The act or omission should result in legal damage.
Legal damage or injury means infringement or
violation of some legal right of the plaintiff.
 It must give rise to a right.

Following two conditions should be satisfied to

constitute a tort:

A “wrongful act”
 Such wrongful act should result in “legal damage”
As per the Law of Torts, in order to make a person
liable for a tort, he must have done some act which
he was not expected to do or he must have omitted
to do something which he was supposed to do. This
implies that the person must have engaged in doing
either a positive wrongful act or made an omission
which he shouldn’t have, which would have made
him liable.
Table 1: Distinction between Tort and Crime.

Table 2: Distinction between Tort and Breach of Contract.

The distinction between Tort and Breach of
Trust
 In case of breach of trust by trustee, the beneficiary
can claim such compensation which depends upon
the loss that the trust property has suffered. Thus,
damages in case of breach of trust are liquidated. On
the other hand, damages in a tort are unliquidated.
 In case of breach of trust, there exists a relationship of
trustee and beneficiary between the two, but it is not
such tort. Trust is a breach of the law of property,
while tort is not.

Two important maxims explain this concept and

liability in torts. They are:
 Damnum Sine Injuria
 Injuria Sine Damnum

(i) Damnum Sine Injuria (Damage without injury)

 Damnum means substantial harm, loss or damage in

respect of money, comfort, health or the like. Injuria
means an infringement of a right conferred by law on
the plaintiff or unauthorized interference with the
plaintiff’s right.
 Damnum Sine Injuria means damage that is not
coupled with an unauthorized interference with the
plaintiff’s lawful right. The mere fact that a man
suffers a loss by an act of a person gives in itself no
cause of action.
 The leading case on the point is: A number of
steamship companies combined together and drove
the plaintiff company out of the tea carrying trade by
offering reduced fright. The house of lords held that
the plaintiff had no cause of action as the defendants
 had by lawful means acted to protect and extend
their trade and increase their profits.

In the case of Mayor & Bradford Corporation Vs.

Pickles (1895), Pickles was annoyed by the refusal of
Bradford Corporation to purchase his land for their water
undertaking. Out of spite, he sank a shaft on his land, which
had the effect of discolouring and diminishing the water of
the Corporation, which percolated through his land.
The House of Lords held that the action of Pickles
was lawful and no matter how ill his motive might
be, he had a right to act on his land in any manner
that so pleases him.

(ii) Injuria Sine Damnum (Injury without damage)

 It means a violation of a legal right without causing

any harm, loss or damage to the plaintiff. In this,
there is no need to prove that as a consequence of
an act the plaintiff has suffered any harm the only
thing which has to be proved is that the plaintiff’s
legal right has been violated, i.e. there is injuria.
Ashby vs White(1703) is a leading case explaining the
maxim, injuria sine damnum.

 Inthis case: A was wrongfully prevented by the

returning officer from exercising his vote at a
parliamentary election. No loss was suffered by A
because the candidate for whom he wanted to vote
got elected by a huge margin.
 A would have recovered damages on the ground
that his legal right to vote was violated by the
returning officer.

Vicarious Liability
 Vicarious liability is a form of strict, secondary
liability that arises under the common law doctrine of
agency – respondeat superior – the responsibility of the
superior for the acts of their subordinate, or, in a broader
sense, the responsibility of any third party that had
the "right, ability or duty to control" the activities of a
violator. The liability is placed, not on the tortfeasor, but
rather on someone who is supposed to have control over
the tortfeasor.

 The most common form of vicarious liability that we come

across is the liability arising out of a ‘Master – Servant’
relationship. This is sometimes referred to as the doctrine
of "RESPONDEAT SUPERIOR" (in which the MASTER - the
archaic term for an employer - must respond to the torts of
its SERVANTS - the archaic term for employees)1. The
 principle says that a master is jointly and severally liable for
any tort committed by his servant while acting in the course
of his employment. As Lord Brougham said: “The reason
that I am liable is this, that by employing him I set a
whole thing in motion; and what he does, is done for my
benefit and under my direction, I am responsible for the
consequences of doing it. This implies that the liability for the
injured party’s loss is properly shifted to the person or entity
whose enterprise was benefited by the relationship and
created the occasion for the wrongdoer’s act or omission.

 When a servant commits a tort in the course of his

employment, the master is very often guilty of what German
lawyers call “Culpa in eligendo” or “Culpa in
inspiciendo” In order that the doctrine of vicarious liability
may apply, the conditions that need to be fulfilled are that
firstly, the relationship of master and servant must exist
between the defendant and the person committing the wrong
complained of. Secondly, the servant must in committing the
wrong have been acting in the course of his employment.

State Liability

Under the English Common Law, the maxim was “The King
can do no wrong” and therefore, the King was not liable for
the wrongs of his servants. But, in England, the position of
the old Common law maxim has been changed by the
Crown Proceedings Act, 1947. Earlier, the King could not be
sued in tort either for wrong actually authorized by it or
committed by its servants, in the course of their
employment. With the increasing functions of the State, the
Crown Proceedings Act had been passed, now the Crown is
liable for a tort committed by its servants just like a private
individual. Similarly, in America, the Federal Torts Claims
Act, 1946 provides the principles, which substantially
decide the question of liability of the State.

In ancient India, under the Hindu jurisprudence, it was an

undisputed principle that no one is exempted from the
operation of law. This liability to equal punishment
extended even to the king, a relative of the king, a judge,
or an ordinary citizen. The rule of law was considered
supreme and binding on everyone alike. The important
functions of the king were concerned with the protection of
people, punishment of crimes, and maintenance of dharma
or social order.

In medieval Indian history, the personal liability of officers

for their wrongs was more vogues with pieces of evidence
showing equality between the ruler and the ruled subject.
Only when the king considered it proper to undertake the
burden of a public officer, it was then the state treasury
used to pay the compensation. Dharma was considered the
administrative law binding the king as well as the subjects.
Both in Hindu law and Muslim law, the rulers themselves
administered justice as far as possible and the rest was
done by the exceptionally learned and honest judges. The
most significant recent trend has been an assertion on the
part of the court that it has the power to grant
compensation. The principle of personal liability of public
servants for wrongs done to citizens is already a part of
Indian law based on English case laws.

Presently State liability in India is defined by Article 300(1)

of the Constitution which originated from Section 176 of the
Government of India Act, 1935. This could be traced back
to Section 32 of the Government of India Act, 1915, the
genesis of which can be found in Section 65 of the
Government of India Act, 1858. It will thus be seen that by
the chain of enactment beginning with the Act of 1858, the
Government of India and the Government of each State are
in the line of succession of the East India Company. In other
words, the liability of the Government is the same as that
of the East India Company before, 1858.

Negligence

Negligence is the breach of a duty caused by the omission

to do something which a reasonable man would do or doing
something which a prudent and reasonable man would not
do.

In another sense negligence is a legal duty to exercise due

care on the part of the party complained of towards the
party complaining about the former’s conduct within the
scope of the duty, breach of the said duty, and
consequential damage. In tort, it is the number of damages
incurred that is determinative of the extent of liability in
tort but in criminal law, it is not the number of damages but
the amount and degree of the negligence that is
determinative of liability.

Negligence has two meanings in the law of torts

Negligence is a mode of committing certain torts, e.g.

negligently or carelessly committing a trespass, nuisance,
or defamation

In another sense, it means conduct that creates a risk of

causing damage rather than a state of mind.

Essentials of Negligence

DUTY

THE DEFENDANT OWED A DUTY TO THE PLAINTIFF

BREACH

THE DEFENDANT BREACHED THE DUTY

INJURY

PLAINTIFF SUFFERED ACTUAL INJURY OR LOSS

CAUSATION

DEFENDANT’S BREACH WAS THE PROXIMATE CAUSE OF

PLAINTIFF’S INJURY

Elements of negligence

That the defendant owed a duty of care to the plaintiff

The defendant made a breach of that duty

The plaintiff suffered damage as a consequence thereof.

Whether the defendant owes a duty to the plaintiff or not
depends on the reasonable foreseeability of the injury to
the plaintiff.

If at the time of the act or 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.
The duty of care means a legal duty rather than a mere
mortal, religious or social duty.
For example in a leading case: A purchased a bottle of
ginger beer from a retailer for his lady friend. Some of the
contents were poured into a tumbler and she consumed the
same. When the remaining contents of the bottle were
poured into her Tumblr, the decomposed body of a snail
floated out with her ginger beer. An action against the
manufacturer for damage was brought by the lady. It was
held 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 for the breach of the duty.

Example: The defendants were the committee and

members of a cricket club. A batsman hit a ball and the ball
went over a fence seven feet high and seventeen feet
above the cricket pitch & injured the plaintiff on the
adjoining highway. The cricket from which the ball was hit
was about 78 yards from the fence and 100 yards away
from the plaintiff. The ground had been used for about 90
yrs & during the last 30 years, the ball had been hit on the
highway on about six occasions but no one had been
injured. It was held that the defendants were not liable
because the chance of a person ever being struck even in a
long period of years was very small.

Rules of strict and absolute liability

There are situations when a person may be liable for some

harm even though he is not negligent in causing the same
or there is no intention to cause her harm or sometimes he
may even have made some positive efforts to avert the
same. In other words, sometimes her law recognizes no-
fault liability or rules of strict liability, or her rule of
absolute liability.

According to the rule, if a person brings on his land and

keeps here any dangerous thing i.e. a thing which is likely
to do mischief if it escapes even though he had not been
negligent in keeping it here. (held in the Rylands is Fletcher
care)

Trespass to Land

Trespass to land means interference with the possession of

land without lawful justification.

Trespass could be committed either by a person himself

entering the land of another person or doing the same
through the same material object

Example: Throwing stones on another person’s land, driving

nails into the wall.

Allowing cattle to stray on another person’s land is also

trespass.

If a person, who is allowed to sit in a drawing-room enters

the bedroom without any justification, the entry into the
bedroom is a trespass.

When the occupiers of land acquiesce to infrequent acts of

trespass. The visitors there may no longer remain
trespasses.

Trespass is a wrong against possession rather than

ownership therefore a person in actual possession can
bring an action even though, against the true owner, his
possession was wrongful.

Liability for Dangerous Premises

An occupier of premises or of other structures like cars,
ships, airplanes or lifts Covers an obligation to the persons
who enter those premises or structures in respect of their
personal safety and the safety of their property hereof.

The occupier’s obligation will be considered under the

following three heads:

Obligation towards lawful visitors

Obligation towards trespassers

Obligation towards children

1. Obligation towards lawful visitors

Common law classified the lawful visitors into two

categories – invitees and licensees and laid separate rules
for obligations towards each one of them.

When the occupier of the premises and the visitors had a

common interest or the occupier had an interest in the visit
the visitor was known as an invitee.

When the occupier had no such interest the visitor was

known as a license.

In other words, a license is a person who enters the

premises with the express or implied in case of invitee the
occupiers is supposed to take reasonable care to prevent
any damage to the invitee from an unusual danger to his
premises which he knew or ought to have known.
For example: A, who was a gas filter, entered B’s premises
for testing certain gas fittings there. While doing so he fell
from an unfenced opening on the upper floor and was
injured. A, being an invitee on those premises B was held
liable for the inquiry caused to him.

In the case of a licensee, She owes a duty to give due

warning of any latent defect or canceled danger in her
premises of which he was aware. He would have no liability
for her caused by dangers not known to him.

2. Obligation towards trespasses

An occupier is not supposed to make his premises quite
safe for the trespasses. At the same time the occupier
cannot be permitted to deliberately cause harm to him, nor
can he be permitted to engage in some dangerous activity
in reckless disregard for the presence of the trespasses on
his premises.
For example: If a burglar gets injured by falling from my
unrepaired stairs. I would not be liable towards him.
However, if I throw stones at him or if a recklessly
disregarded the presence of a beggar on my premises and
shoot and injure the beggar, I would be liable. I can take
reasonable steps to guard my premises against burglars,
such as by the use of spikes or broken pieces of glass on
the top of the wall but the use of a trap or spring guns
would be actionable.
In a leading case

 The defendant laid some live electric wire on his land without
any visible warning. The plaintiff was passing through that
land at 10 p.m. to reach the land under his own cultivation.
Could not observe the wire, as there was no light in the area.
He came in contact with the nine and was injured.
 It was held that it is the duty of the landowner to make it
known if he has to lay a live wire on a short offense and as
 he failed to do so, he was liable for the damage caused
thereby.

3. Obligation toward children

An occupier must be prepared for the children to be less
careful than their adults and hence he must guard the child
visitors even against such dangers from which the adults
don't need any protection.
For example in a leading case: The defendants controlled a
public park. A child of 7 years picked up and ate some
attractive-looking perries on a shrub in the park and died
because the perries were poisonous. The perries were
obviously an allurement for the children but the defendants
had not given sufficient warning intelligible to the children
of the deadly character of the perries. Here, in an action by
the father of the deceased child, the defendants were held
liable.
Nuisance
Nuisance means an unlawful interference with a person's
use or enjoyment of land. It includes interference with the
comfort, health, and safety of the other.
Nuisance is of two types

 Public Nuisance
 Private Nuisance

1. Public nuisance is interference with the right of the public

in general and is punishable as an offense.
For example: Obstructing a public way by digging a trench
or constructing a structure on it are examples of public
nuisance.
A public nuisance also becomes a private nuisance so far as
the person suffering special damage is concerned. Special
damage in this context means damage caused to a party in
contradiction to the public at large.
For example, The defendant created a brick grinding
machine adjoining the premises of the plaintiff, who was a
medical practitioner. The brick grinding machine-generated
dust which polluted the atmosphere. The dust entered the
consulting chamber of the plaintiff and caused physical
inconvenience to him. It was held that special damages to
the plaintiff had been proved and a permanent injunction
was issued against the defendant restraining him from
running his brick grinding machine there.
2. Private nuisance is a civil wrong or tort.
The essentials of a tort of nuisance are:

 unreasonable interference
 interference with the use or enjoyment of land or personal
discomfort
 Damage

Example: Gur Prasad and another filed a suit against

Radhey Shyam and others for a permanent injunction to
restrain them from installing and running a flour mill on
their premises. It was alleged that the said mill would
cause a nuisance to the plaintiffs, who were occupying the
first-floor portion of the same premises inasmuch as the
plaintiffs would base their peace an account of ratting
noise of the flour mill and hereby their health would also be
adversely affected. It was held that substantial addition to
the noise in a noisy locality by the running of the impugned
machines, serious interference with the physical comfort of
the plaintiffs, and as such it amounted to a nuisance.
It some noises which don't disturb or among an ordinary
person but disturb only the plaintiff in his work or sleep
due to his over sensitiveness, it is no nuisance against the
plaintiff.
Nuisance is generally a confirming wrong. A constant noise,
smell, or vibration is a nuisance.
Defamation
 Defamation means an attack on a person's reputation.
 It tends to lower the image of a person in society.
  Defamation consists of both libel and slander. Libel is a
defamatory statement in a permanent form, for example, by
written words, pictures, cinema film, etc. Slander is the
publication of a defamatory statement in a transient form
such as spoken words or gestures. In Indian law,
defamations are both a root as well as a crime.

To constitute a tort of defamation following are the essential

elements:

 The words spoken or written must be defamatory i.e. which

tends to lower a person in the estimation of right-thinking
members of the society.
 The defamatory words or statements should directly or
indirectly refer to the person defamed.
 The statement must be published by a medium. Publication
means making the defamatory matter known to some person
other than the plaintiffs.

Therefore if a person abuses another person in private it may

not be defamation but if a third person is standing by, the
same words will constitute to be defamatory words.
Further, a defamatory statement may be a direct
statement prima facie defamatory or it may be an
innuendo. Innuendo is those words that appear innocent
but contain some secondary or latent or hidden meaning
which is defamatory. The essence of defamation is an
injury to a person's character or repudiation.
For example: In a leading case - There was a publication of
a statement in a local daily in Jodhpur on 18.12.77 that
Manjulata went out of her house and the earlier night at 11
p.m. on the pretext of attending night classes and ran
away with a boy named Kamlesh. She belonged to a well-
educated family and was herself also a student in B.A. class.
She was 17 years of age. The news item was untrue and
had been published with utter irresponsibility and without
any justification. Such publication had resulted in her being
ridiculed and affected her marriage prospects. The
statement is defamatory. The defendants were held liable.
Defamation of a class of persons
When the words refer to a group of individuals or a class of
persons, no member of that group or class can sue under
he can prove that the words could reasonably be
considered to be referring to him. Thus, if a man wrote that
all lawyers were thieves, no particular lawyer could sue
him under there was something to point to her particular
individual.
For example in a leading case: The appellant was a member
of a party, the membership of which was about two
thousand, out of which twenty-four members including the
plaintiff were in England, The respondents published a
statement of the party as a whole. Some of the appellant's
friends considered the article to be referring to him. It was,
however, held that since the article referred to such a big
class, most of the members of which were resident abroad,
it could not reasonably be considered to be referring to the
appellant and the respondents were not liable.
Defenses to defamation
The defenses to an action for defamation are

 Justificationor truth
 Fair comment
 Privilege, which may be either absolute or qualified

In a civil action for defamation, the truth of the defamatory

matter is a complete defense. The defense is available
even though the publication is made maliciously. If the
statement is substantially true but incorrect in respect of
certain minor particulars, the defense will still be available.
Example: In a leading English case - the plaintiff had been
sentenced to a fine of pond 1 or 14 days imprisonment in
the alternative, for traveling on a train without an
appropriate ticket. The defendants published a notice
stating that the plaintiff had been sentenced to a fine of
pond 1 or three weeks imprisonment in the alternative.
Held, the defendants were not liable, the statement being
substantially accurate.
Fair comment
Making a fair comment on matters of public interest is a
defense to an action for
defamation. Whether a statement is a fact or a comment,
depends on the language used or the context in which that
is stated.
Example: A says of a book published by Z - 'Z's book is
foolish, Z's book is indecent, Z must be a man of
impure mind.' There are only comments based on Z's
book and A will be protected if he has said that in good
faith. But if A says - " I am not surprised that Z's book
is foolish and indecent, he is a weak man & libertine."
It is not a comment on Z's book but is rather a statement
of fact and the defense of fair comment cannot be pleaded
in such a case.
Privilege
 There are certain occasions when the law recognizes that the
right of free speech outweighs the plaintiff's right to
reputation: the law treats such occasions to be privileged
and a defamatory statement made on such occasions is not
actionable.
 Privilege is of two kinds: absolute privilege and qualified
privilege.
 Parliamentary proceedings, Judicial proceedings, and
state communications, (where a statement made by one
officer of the state to another in the course of official duty is
absolutely privileged) are examples of absolute privilege
whereas in case of qualified privilege, it is available either
when the statement is made in discharge of a duty or
protection of interest or the publication is in the form of the
report of parliamentary, judicial or other public proceedings.
 General Defences
 There are certain defences against the tortuous
liability which a defendant can plead to avoid his
liability under tort. General defences are in favour of
the defendant. Let’s discuss some of the general
defences :-
 1. Volenti Non Fit Injuria
 When a person consents to the infliction of some harm
upon himself he has no remedy for that in tort. In case,
the plaintiff voluntarily agrees to suffer some harm, he
is not allowed to complain for that and his consent
serves as a good defence against him. No man can
enforce a right which he has voluntarily waived or
abandoned.
 Example
 (i) When you invite somebody to your house, you
cannot sue him for trespass.
 (ii) A player in a game of hockey has no right of action
if he is hit while the game is being lawfully played.
 For the maxim volenti non fit injuria to apply, two
points have to be proved :-
 (i) The plaintiff knew that the risk is there
 (ii) Knowing the same, consents to suffer the harm but
the consent must be free.
 Exception
 Rescue cases form an exception to the application of
the doctrine of volenti non fit injuria. When a person
voluntarily undertakes a risk out of a sense of legal or
moral duty, to rescue somebody from imminent danger
and sustains an injury, he can recover damages in tort
from the person due to whom the situation arose.
 In a leading English case A railway passenger fell down
of a running railway car due to the negligence of the
railway company. When the car stopped, his
companion got down and walked back to search for his
friend. There was darkness, the rescuer missed his
footsteps and fell down from the bridge resulting in
injuries to him. He brought an action against the
 railway company. Held, it being a case of rescue, the
railway company was liable.
 2. 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
inevitable accident. It is, therefore, a good defence if
the defendant can show that he neither intended to
injure the plaintiff nor could he avoid the injury by
taking reasonable care.
 In a leading case – the plaintiff and the defendant, who
were members of a shooting party, went for pheasant
shooting. The defendant fired at a pheasant but the
shot from his gun glanced off an oak tree and injured
the plaintiff. It was held that the injury was an accident
and the defendant was not liable.
 3. Act Of God
 Act of god is a good defence to any action in tort.
Thus, when the damage, loss or injury is caused on
account of operation of natural forces or phenomena,
such as heavy downpour, storms, floods, earthquakes
droughts etc, the defendant can escape liability. The
two essential ingredients of the defence of act of god
are:-
 a) The act must result on account of working of natural
forces
 b) The occurrence must be extraordinary.
 4. Plantiff The Wrongdoer
 Under the law of contract, one of the principles is that
no court will aid a person who forward his cause of
action upon an immoral or an illegal act. The maxim is
“Ex turpi causa non oritur actio” which means, from an
immoral cause no action arises. It means that if the
basis of the action of the plaintiff is an unlawful
contract, he will not in general, succeed to his action.
 Example:- A bridge under the control of the defendant
gives way when an overload truck, belonging to the
plaintiff, passes through it. If the truck was overloaded
contrary to the warning notice already given and the
bridge would not have given way if the truck was
properly loaded, the plaintiff action will fail. On the
other hand, if the wrongful act of the defendant and
not of the plaintiff is the determining cause of the
accident, the defendant will be liable.
 5. Necessity
 An act causing damage if done under necessity to
prevent a greater evil is not actionable even though
harm was caused intentionally.
 For example :- Forcible feeding of a hunger striking
prisoner to save her is a good defence as the act will
be considered to be reasonably necessary to save the
prisoner’s life. If, however, the interference is not
reasonably necessary, the defendant will be liable.
 For example :- The defendant who entered the
plaintiff’s premises in good faith to extinguish fire at
which the fireman had already been working will be
held liable for trespass.
 6. Statutory Authority
 The damage resulting from an act, which the
legislature authorizes or directs to be done is not
actionable even though it would otherwise be a tort.
 For example :- In a leading case sparks from an engine
of the respondent’s railway company, which had been
authorized to run the railway, set fire to the appellant’s
woods on the adjoining land. It was held that since the
respondents had taken proper care to prevent the
emission of sparks and they were doing nothing more
than what the statute had authorized them to do. They
were not liable.
 Vicarious Liability
 Vicarious liability is the liability of one person for the
act done by another person. It is necessary that there
should be a certain kind of relationship and the
wrongful act should be in a certain way connected with
that relationship. The common example of such a
liability are :- the maxim “Qui facit per alium facit per
se'' provides the general principle of vicarious liability.
 - Employer and employee or master and servant
 - Principal and agent
 - Partners interse.

Vicarious Liability Master And Servant

 If a servant does a wrongful act in the course of his
employment the master is liable for it:- A servant is a
person who acts under the direct control and
supervision of his master or employer. Master is not
liable for any act done by a servant which is not in the
course of the employer.
 For example:- My car driver is my servant. If he
negligently knocks down X, I will be liable for that, but
if I hire a taxi for going to the railway station and the
taxi driver negligently hits X, I will not be liable
towards X because the driver is not my servant but
only an independent contractor.
 Principal And Agent
 Where one person authorized another to commit a tort,
the liability for that will be not only of that person who
has committed it but also of that who authorized it.
The authority to do the act may be expressed or
implied. The principal generally does not expressly ask
his agent to do wrongful acts, but when the agent acts
in the ordinary course of the performance of his duties
as an agent, the principal becomes liable for the same.
 For example:- In a leading case the plaintiff’s husband
gave some amount and cheques to his friend, who was
an employee in the defendant bank for being
deposited in the plaintiff’s account. No proper receipt
for the deposits was obtained. The bank employee
misappropriated the amount. It was held that the
employee when he committed the fraud was not acting
in the scope of the bank's employment therefore the
defendant bank could not be made liable for the same.
 Partners
 The relationship as between partners is that of
principal and agent. The rules of the law of agency
apply in case of their liability also. For the tort
committed by any partner in the ordinary course of the
business of the firm, all the other partners are liable
therefore to the same extent as the guilty partner.
 For example:- One of the two partner’s of the
defendant’s firm acting within the general scope of his
authority as a partner, braided the plaintiff’s clerk and
induced him to make a breach of contract with his
employer by divulging secrets relating to his
employer’s business. It was held that both the partners
of the firm were liable for this wrongful act committed
by only one of them.