LAW OF TORT

• Introduction to Law of Torts

Concepts and Essentials of Torts

Introduction
A tort can be defined as a wrong independent of contract, giving rise to a civil remedy, for
which compensation can be recovered.

The etymological meaning of the word tort is twisted. It originated from the Latin
term tortum.

According to Salmond, “A tort 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
breach of trust or other merely equitable obligation.”

Winfield on the other hand opined, “Tortuous liability arises from the breach of duty
primarily fixed by law, this duty is towards persons generally and its breach is redressable
by an action for unliquidated damages”

Essential Elements of Torts

The essential elements of torts are as follows:

• Wrongful Act- When a person is under some legal duty, and he fails to perform it
causing some loss to the victim, the person has committed a wrongful act. A
wrongful act invades the following private rights of the victim- Good Reputation,
Bodily safety and Legal rights.
• Legal Damage- There is a difference between legal damage and actual damage. In
torts, injuria sine damno is actionable but damnum sine injuria isn’t. Injuria sine
damno means an infringement of a legal right even if there is no actual
damage. Damnum sine injuria means damage without injury. In Ashby v. White[3],
the plaintiff was prevented from exercising her right to vote. It was held that the
plaintiff was entitled to damages. In the Gloucester Grammar School Case, a rival
school was set up near that of the plaintiff. It was held that the plaintiff could not
get compensation as there was no legal injury.
• Legal Remedy- The damage in tort should be actionable. There cannot be a tort if
there is no legal remedy.
Law of Tort or Law of Torts
According to Winfield, tort law is a growing subject and many new torts add up. Hence it
is law of tort. Salmond however was of the view that it is law of torts.
Some General Elements of Torts
• Act or Omission- There should be a wrongful act in order to constitute tort. It can
be an act of omission or that of commission. They should not be beyond human
control.
• Voluntary or Involuntary- The wrongful act can be voluntary or involuntary.
• Intention, Motive, Negligence and Recklessness- The act may have an intention
or motive or may arise due to negligence or recklessness.
• Malice– Malice isn’t essential in all kinds of torts. It is essential in the following-
defamation, malicious prosecution, malicious damage to property, slander,etc.
• Malfeasance, Misfeasance, Nonfeasance- Malfeasance means commission of an
unlawful act. Misfeasance means performing a lawful act in a wrong manner.
Nonfeasance means failure to perform an act where there was an obligation to
perform it.
• Fault- A fault which violates the right of a person gives rise to tort.
Difference Between Tort and Contract
A tort is distinguished from a contract in the following manner-

• Free consent is necessary to give rise to a contract. A tort is inflicted without consent.
• There is no doctrine of privity in tort. It is essential in a contract, and no third party
can make decisions regarding a contract.
• Tort is a violation of right in rem ( right against the world at large) and breach of
contract is an infringement of right in personam (right against a person or a body).
• Motive is often taken into consideration in Tort but not in a contract.
• The measure of damages in tort is not strictly limited. For a breach of contract, the
measure of damages is generally more or less determined by stipulations of the
contracting parties.
Difference Between Tort and Crime
A tort is distinguished from a crime in the following manner-

• A tort affects the private rights of a person. A crime on the other hand affects the
whole society.
• In tort, compensation is recovered from the wrongdoer. A person committing a crime
is punished by the State.
• In tort, action is brought in by the injured party. In crime, proceedings are conducted
by the State.
Conclusion
In conclusion, it is clear that a tort is a civil wrong and gives rise to civil proceedings. It
involves infringement of the right of a person and the person is compensated by the
wrongdoer.
Nature of Torts
Unlike criminal law, which focuses on punishing offenders for offences against the state, tort
law centres around compensating victims for the harm they have suffered due to the actions or
omissions of others.

Nature and Characteristics of Torts

The nature and characteristics of torts are:

Civil Wrong
A tort is a civil wrong, as opposed to a criminal offence. It involves a violation of a legal
duty owed by one person to another, resulting in harm, injury or damage.

Breach of Duty
A tort occurs when there is a breach of duty. The person committing the tort fails to fulfil
their legal obligation or duty towards another person, whether it is a duty to exercise
reasonable care, respect someone’s property rights or refrain from committing intentional
harm.

Harm or Injury
A tort results in harm, injury or damage to the person, property, reputation or economic
interests of another individual. This harm can be physical, emotional or financial in nature.

Causation
A tort requires a causal link between the wrongful act or omission and the harm suffered.
The breach of duty must be the direct cause of the harm or injury suffered by the victim.

Legal Remedy
Torts provide a basis for seeking legal remedies. The injured party, known as the plaintiff,
can file a lawsuit seeking compensation for the damages suffered, including monetary
compensation, injunctions and declaratory relief.

Compensation
One of tort law’s key objectives is to compensate the victim for the harm suffered. The
compensation aims to restore the injured party to the position they would have been in
had the tortious act not occurred. The compensation awarded is determined based on
the nature and extent of the harm suffered.

Fault-Based Liability
In most tort cases, liability is based on fault. The person committing the tort must have
acted negligently, intentionally or recklessly. However, certain torts, such as strict liability,
do not require proof of fault and hold the defendant liable regardless of their intent or
level of care.

Individual Rights
Torts protect individual rights and interests. They provide a legal mechanism for
individuals to seek redress and hold others accountable for the harm caused. Torts
encompass a wide range of rights, including personal integrity, property rights, privacy
rights and economic interests.

Civil Proceedings
Tort claims are typically resolved through civil proceedings in a court of law. The burden
of proof lies with the plaintiff, who must establish that the defendant’s actions or
omissions caused the harm suffered. The defendant is given an opportunity to present a
defence against the allegations.

Preponderance of Evidence
In tort cases, the standard of proof is generally based on a preponderance of the evidence.
This means that the plaintiff must prove that it is more likely than not that the defendant’s
actions caused the harm suffered. It is a lower standard of proof compared to the “beyond
a reasonable doubt” standard used in criminal cases.

Tort and Crime

Historically, torts were closely connected to criminal law and even today, certain aspects
of damage laws include punitive elements. However, it’s important to recognize that torts
are a specific type of civil wrong or injury. Civil and criminal wrongs are distinguished
based on the available legal remedies.

Civil wrongs lead to civil litigation, whereas criminal procedures aim to punish defendants
for accused acts. Civil proceedings focus on enforcing rights asserted by the plaintiff
against the defendant, while criminal proceedings seek to punish the accused for their
actions. Occasionally, the same mistake may be the subject of both procedures.

Contracts and Torts

P.H. Winfield‘s definition helps clarify the distinction between contracts and torts.
According to Winfield, tort liability arises when a legal obligation owed to all people is
violated and the violation can be addressed through legal action seeking unliquidated
damages.

On the other hand, a contract is an agreement between parties that establishes a specific
legal obligation. The contract’s nature, substance and implications are determined by the
agreement reached between the parties. Salmond views contract as a result of individuals
exercising the independent legislative power granted by the law to define their respective
rights and duties.

Quasi-Contract and Tort

Instances, where a person is held responsible to another party without a formal agreement
for money or rightful benefits, fall into the category of a quasi-contract. From an orthodox
perspective, the presence of a hypothetical contract, suggested by the law, serves as the
basis for the duty under a quasi-contract.

However, the radical viewpoint argues that the responsibility in a quasi-contract is distinct
and rooted in the prevention of unfair enrichment.

Conclusion
The nature of torts reveals its distinctiveness as a civil wrong or injury. Although its origins
can be traced back to criminal law, torts have evolved to focus on providing remedies for
individuals who have suffered harm. Unlike criminal proceedings, which aim to punish
offenders, civil proceedings seek to enforce the rights of the injured party. Torts can
involve a wide range of actions, from negligence to intentional wrongdoing and their legal
implications depend on the type of legal remedy sought.
Essential Elements of Tort
The term “tort” derives from the Latin term “tortum,” meaning twisted or crooked.
Salmond defines a tort as a civil wrongdoing that can be remedied through a common
law action seeking unliquidated damages. It is distinct from exclusive breaches of contract,
breach of trust, or other equitable obligations.

To constitute torts, certain essential elements must be present.

What are the Essential Elements of Tort?

As has already been stated, there are four essential elements of tort for a tort to exist.
They are:

Existence of a Duty to Exercise Care

The law of torts imposes an obligation on every individual to exercise a reasonable level
of care when engaging in activities that could potentially cause harm to others. To pursue
a legal case, it is necessary to establish that the tortfeasor (the person responsible for the
tort) owed a duty of care to the injured party and that this duty was breached. The duty
of care is imposed by law and does not require a direct relationship between the tortfeasor
and the injured party.

Wrongful Commission or Omission of an Act

For an act to be recognised as wrongful, it must be defined as such by law. Violating a
legal provision renders an act unlawful. It is important to note that a moral wrong does
not necessarily equate to a legal wrong. Merely being morally wrong is insufficient to
qualify as legal wrongdoing. An act is considered unlawful only if it contravenes the law,
regardless of its moral implications. Furthermore, wrongdoing must result in actual harm
or legal injury to another person. The following cases exemplify this requirement:

Glasgow Corporation v. Taylor (1992)

In this case, a corporation failed to erect proper fencing to keep children away from a
poisonous tree. As a result, a child plucked and consumed fruits from the poisonous tree
and died. The corporation could be held liable for this omission.

General Cleaning Corporation Ltd v. Christmas (1953)

In this case, an employer failed to provide a safety belt for a safe system of work, resulting
in consequences arising from this omission.

Actual Harm or Legal Harm

For a tort claim to arise and for the tortfeasor to be held liable, the claimant must have
suffered actual pain or loss as a result of the wrongdoing, or there must have been a
violation of their legal rights, with or without resulting damage.
Two maxims, injuria sine damno and damnum sine injuria, encompass the various
categories of harm and/or injury covered by this crucial element of a tort.

Injuria Sine Damno

The maxim “injuria sine damno” describes an injury without damage, which is actionable
under tort law. It occurs when a person experiences a legal injury without actual loss,
meaning their legal right has been infringed by another individual. It signifies a violation
of an absolute right without the need for actual harm.

An illustrative example of this maxim is the landmark case of Ashby v. White (1703) 92
ER 126, where Mr. Ashby, the plaintiff, was prevented from voting by Mr. White, the
constable. This rule is based on the ancient maxim “Ubi jus ibi remedium,” meaning
“where there is a right, there will be a remedy.”

The plaintiff was a qualified voter in a parliamentary election. The defendant, a returning
officer, wrongfully refused to accept the plaintiff’s vote. Although the plaintiff suffered no
damage since the candidate he wished to vote for had already won the election, the
defendants were still held liable. It was concluded that damage is not limited to pecuniary
loss, as injury implies damage. Therefore, when a person’s rights are hindered, they are
entitled to remedies.

In another case from India, Bhim Singh v. State of Jammu and Kashmir, the plaintiff,
who was a member of parliament (MP), was denied entry into the premises of the
Assembly election by a police constable, thereby infringing upon his legal rights.

Damnum Sine Injuria

This maxim is the opposite of the previous one. It refers to damage without injury. In this
case, the party experiences actual physical or moral loss, but there is no infringement of
their legal rights. It refers to an actual and substantial loss suffered by a party without any
violation of their legal rights. In such instances, the plaintiff has no cause of action since
no legal rights have been transgressed.

An example of damnum sine injuria is the case of Gloucester Grammar School, where the
defendant established a school in the same neighbourhood as the plaintiff’s school and
even lowered the fees. This was not considered a tort case because the plaintiff suffered
only a financial loss, and none of their legal rights were breached.

Legal Remedy
The law of torts provides specific legal remedies to injured parties when their rights are
violated. These remedies can include monetary compensation, restitution of specific
property, and court-ordered injunctions.
The Court assesses various factors of liability by applying tests such as directness and
foreseeability to determine the extent of the damage suffered and whether it is too
remote. Only after evaluating these factors will the Court provide relief to the claimant.

Conclusion
A tort defines a civil wrong, consisting of four essential elements: duty, wrongful act, injury,
and remedy. To pursue damages for a tort, all four essential of torts must be proven. If
any of these elements is missing, the tort cannot be established, and damages cannot be
awarded.

The term “tort” derives from the Latin term “tortum,” meaning twisted or crooked.
Salmond defines a tort as a civil wrongdoing that can be remedied through a common
law action seeking unliquidated damages. It is distinct from exclusive breaches of contract,
breach of trust, or other equitable obligations.
Discharge of Torts

The term “discharge of torts” refers to the termination or resolution of a tortious claim or legal
action. It signifies that the legal liability associated with a tort has been extinguished or ended.
When a tort is discharged, the party who committed the wrongful act is no longer held legally
responsible for their actions and the injured party loses the right to seek further remedies or
damages for the tort.

Discharge of Torts
There are seven methods through which torts can be discharged and in these instances,
no remedy can be sought for the tortious act. The following are the modes of discharge
of torts:

• Death of the parties

• Accord and satisfaction
• Release
• Judgment
• Law of limitation
• Waiver
• Acquiesce
These methods serve as ways to discharge torts and terminate the liability of the
wrongdoer in tort law.

Method of
Definition Example
Discharge

The death of either the person who If the person who committed the tort dies during the co
committed the tort or the person against the trial, their liability and the tort are discharged. Simil
Death
whom the tort was committed results in the person against whom the tort was committed dies,
the discharge of the tort. personal right of action dies with them.

Parties come to an agreement and settle A’s family agrees to accept a compensation of Rs. 1,50,0
Accord and
the dispute by accepting consideration in from B for the injury caused by B’s car, and upon receivi
Satisfaction
lieu of the right of action. payment, the tort is discharged.
 The injured party voluntarily gives up the
A, the person against whom B committed a tort, choose
Release right to pursue legal action against the
release B from liability by providing free consent.
wrongdoer.

The tort is discharged through a court’s A obtains a judgment from the court against B for a pre
decision on the matter, and no further accident, and later discovers the need for further medic
Judgment
remedy for the same act of tort can be treatment, but cannot seek another remedy for the sam
claimed. incident.

The injured party selects one available

remedy when multiple options exist, and is A files a case against Z with multiple available remedies
Waiver
prevented from pursuing alternative chooses to pursue only one of them, waiving the others
remedies.

The tort is discharged due to the plaintiff’s

A fails to enforce their right against B for an extended p
Acquiescence own inaction or failure to enforce their
thereby waiving B’s liability.
rights within a reasonable time.

The tort is dismissed or barred due to the A fails to file a case against B for trespassing on their pro
Law of
expiration of the prescribed time limit for within the specified three-year time limit, losing the rig
Limitation
filing a case. enforce their claim due to limitation.

Death of the parties

The maxim “actio personalis moritur cum persona” holds significant importance,
signifying that when a person dies, their personal right of action also dies with them.

The maxim “actio personalis moritur cum persona” is a crucial principle, indicating that if
either the person who commits a tort or the person against whom the tort is committed
passes away, the personal right or the right to seek damages or take legal action ceases
to exist.

There are two scenarios in which this maxim applies:

Death of the person against whom the tort was committed (i.e., the plaintiff)

When the individual against whom the tort was committed approaches the court and files
a case but subsequently dies, their personal right of action also perishes.

Illustration:
Suppose A initiates legal proceedings against B for a tortious act. If A passes away during
the ongoing trial while the case is still pending before the court, the tort is discharged as
A’s right of action ceases to exist.

Exceptions to the maxim of “actio personalis moritur cum persona” with respect to
the plaintiff:

In India, there are certain laws that provide exceptions to the aforementioned maxim, such
as:

The Legal Representative Suits Act, 1885: Under this Act, the legal representative or
executor of a deceased person can represent them in a court of law.

Illustration:

If A dies during the trial proceedings, their legal heir or representative can represent them
in the court of law.

Similarly, different laws and acts like the Fatal Accidents Act, the Indian Succession Act
and the Workmen’s Compensation Act allow the representative of the plaintiff to act on
their behalf in a court of law.

Death of the person who commits the tort (i.e., the defendant)

When the person responsible for committing a tort against another individual dies, the
tort is discharged.

Illustration:

If Ram commits a tortious act against Geeta and Geeta files a complaint against Ram, but
Ram passes away during the trial, his right of action also dies with him, resulting in the
discharge of the tort.

In the case of Prusti v. Mohanty:

In this particular case, the defendant obtained a sum of money through misrepresentation
but subsequently died. The High Court of Orissa ruled that when a money decree is issued
against an individual in relation to an amount received from the decree-holder through
misrepresentation, the liability remains personal and cannot be extended to the
defendant’s son under the law. Thus, any claims the decree-holder has against the father
are terminated upon the father’s death.
Exceptions to the maxim of “actio personalis moritur cum persona” with respect to
the defendant:

In India, various laws provide exceptions to the maxim, such as:

The Legal Representative Suits Act, 1885:

Under this act, if a person involved in a tortious act dies during the trial, the right of action
passes to their legal representative.

Illustration:

If A committed a trespass against B in the past and A dies, with proof of liability for
damaging B’s property, the damages for the harm caused to B’s property must be paid
by A’s legal representative.

Similarly, different laws and acts like the Fatal Accidents Act, the Indian Succession Act
and the Workmen’s Compensation Act require the representative of the defendant to act
on their behalf in a court of law.

Accord and Satisfaction

The concept of accord refers to an agreement between the parties involved in a tort,
namely the person who commits the tort and the person against whom the tort is
committed, to settle their dispute. This agreement is known as an accord. In essence, it
involves resolving the issue by accepting some form of consideration in exchange for the
right of action.

Satisfaction, on the other hand, entails the actual payment of the agreed consideration by
both parties involved in the tort, i.e., the person who committed the tort and the one
against whom it was committed.

Once both accord and satisfaction have been fully carried out, the tort is discharged and
the dispute no longer proceeds in a court of law.

Illustration:

For instance, if A tragically dies as a result of an injury caused by B’s car, A’s family may
come to an agreement with B whereby B agrees to compensate them with Rs. 1,50,000.
This situation represents an accord. When A’s family actually receives the payment of Rs.
1,50,000 from B, this represents satisfaction. By settling the matter and accepting the
agreed consideration, A’s family forfeits their right of action and the tortious act is
discharged.

The only condition for accord and satisfaction is that the consent of the parties involved
must be free and not obtained through fraud, coercion or undue influence.

Illustration:

If A, the son of a wealthy businessman, violently assaults one of his servants (trespass to
the body) and tries to coerce the servant into entering into an accord through undue
influence, the servant’s consent obtained under such influence would not be considered
free, rendering the accord and satisfaction invalid.

Release
The release refers to giving up the right to take legal action. It occurs when a person
voluntarily discharges the tort and this right is only available to the individual against
whom the wrong has been committed.

Illustration:

Situation 1: If B commits a tortious act against A and A willingly chooses to release B from
liability, they have the option to do so.

Situation 2: If both B and C commit tortious acts against A and A chooses to release B
from liability, it does not mean that C is also released from their liability.

The release must be voluntary and based on the free consent of the injured party. If the
consent is obtained through coercion, undue influence or any other unlawful means, such
a release should not be considered valid and the tort is not discharged.

Illustration:

For instance, if a police inspector, leveraging their position and using threats, obtains the
consent of the injured person to release themselves from liability, that release is not
considered valid.

Judgement
In this method, the discharge of tort occurs through a court judgment. Once the court
delivers a judgment on a matter, the tort is discharged and no further appeal can be made
for the same tort in a court of law.
This method is based on the legal principle of Res Judicata, which means that if the court
has already decided a cause of action, the same cause of action should not be entertained
by the court again.

Illustration:

If A obtains a remedy against B for a previous accident through a court judgment and
later discovers the need for further medical treatment, they cannot claim another remedy
for the same accident in a court of law.

In the case of Fitter v. Veal (1701 12 Mod. Rep. 542):

In this case, the plaintiff filed a case against the defendant, seeking damages for assault.
Eventually, the plaintiff received a remedy from the defendant as determined by the court.
Later, the plaintiff realised the need for additional surgeries and filed another petition
seeking further remedy for the same assault in court.

The court rejected the petition, stating that once the court delivers a judgment on a
matter, no further appeal can be filed for the same tort in a court of law as the tort is
discharged.

Exceptions

There are exceptions to the general rule of judgment as a discharge of tort:

If the petition involves the same parties but seeks a different remedy or addresses the
violation of a separate right, then the petition may be allowed.

In the case of Brunsden v. Humphrey:

The plaintiff, a cab driver, had already received compensation for damage to their cab.
However, they later discovered that they had suffered a hand fracture due to the accident.
They had the right to seek a remedy for the trespass to their body.

If the person who was previously liable for the tort commits the same act again, it is
considered a fresh case and can be pursued.

Illustration:

If A commits a trespass against B and is held liable by the court. If A commits the same
offence against B again and argues that they cannot be punished twice for the same
offence, the defence is not valid because it is considered a separate case.
By Waiver
The next method of discharging a tort is through the waiver. Waiver occurs when a person
has multiple available remedies and must choose one of them. They cannot seek both
remedies simultaneously, except in the case of defamation and assault.

Illustration:

If A files a case against B for committing a tort against A and A has the right to pursue
multiple remedies, they must select one remedy. For instance, if A has a remedy under
both tort law and contract law, they must choose one.

The key principles underlying the doctrine of waiver are:

1. The person must choose one remedy. If the chosen remedy fails, the court does not
allow them to revert to an alternative remedy.

Illustration:

If A files a case against Z and has two available remedies to pursue in court, if A chooses
the first remedy and loses the case, they cannot approach the court for the alternative
remedy.

2. The waiver can be either implied or expressed. In the express waiver, the person
explicitly communicates their choice in a court of law.

Illustration:

If A files a case and has remedies available under both contract and tort law, when asked
by the court, A must clearly communicate their choice.

3. In the implied form of waiver, the person’s choice is implied by their actions or conduct.

Illustration:

If A has two available remedies, one under contract law and one under tort law and they
choose to pursue the contract remedy, it is implied that they have elected the contract
remedy.

Acquiescence
In this method, the tort is discharged due to the plaintiff’s own incapacity, such as lack of
time to go to court, inability to afford court fees or any other incapacity. When a person
entitled to enforce their right fails to do so for an extended period, it implies a waiver of
the other party’s liability.

Illustration:

If A is entitled to enforce their right against B but neglects to do so for a significant period,
it automatically waives B from their liability.

Law of Limitation
Under this method, the tort is discharged due to the expiration of the prescribed time
limit for filing a case. Once the time limit has passed, no person is entitled to enforce their
right.

For example, in cases of false imprisonment or libel, the time limit to file a case is one
year. In cases of trespass to immovable property, the limit is three years. After the time
limit has elapsed, no person can enforce their right.

Illustration:

If B commits a tort of trespass to A’s property and A fails to file a case within three years
in the court of law, they lose their right to apply due to the limitation period.

Consequences of Discharge of Torts

The discharge of torts has several important consequences that impact both the parties
involved and the legal system as a whole. Let’s explore some of these consequences:

Termination of Legal Liability

When a tort is discharged, it signifies the termination of legal liability for the party who
committed the wrongful act. The discharged party is no longer held legally responsible
for their actions and the injured party loses the right to seek further remedies or damages
for the tort.

Closure and Finality

Discharging a tort brings closure to the legal dispute. It allows the parties involved to
move on from the incident and avoid prolonged litigation or ongoing legal battles.
Discharge promotes finality, as the matter is resolved and the parties can focus on other
aspects of their lives.

Preservation of Judicial Resources

By discharging a tort, the legal system is relieved of the burden of continued litigation. It
allows courts to allocate their limited resources to other cases and prioritize new disputes.
Discharge helps ensure the efficient functioning of the legal system.

Limitation of Remedies

Once a tort is discharged, the injured party loses the right to seek further remedies. This
limitation prevents the injured party from continuously pursuing legal actions against the
wrongdoer and promotes the principle of finality in legal proceedings.

Impact on Precedent: Discharge of a tort can have implications for legal precedent. Court
decisions and judgments related to discharged torts may shape the interpretation and
application of the law in future cases. These precedents guide legal professionals and help
establish consistent legal principles.

Deterrence and Compliance:

Discharge of torts can serve as a deterrent, encouraging individuals to abide by legal

norms and avoid engaging in wrongful acts. Knowing that their liability can be discharged
provides an incentive for individuals to act in accordance with the law and avoid potential
legal consequences.

Protection of Rights

Discharge of a tort ensures that the legal rights and obligations of both parties are
respected. It upholds the principles of fairness, justice and the rule of law. By discharging
a tort, the legal system acknowledges that the appropriate remedies have been sought
and that the rights of both parties have been considered.

Conclusion
Discharge of torts can be done on the death of the parties, accord and satisfaction,
release, judgment, waiver, acquiescence and the law of limitation. The consequences of
discharging torts include the termination of legal liability, closure and finality of the legal
dispute, preservation of judicial resources, limitation of remedies, impact on legal
precedent, deterrence and compliance and the protection of rights.
In a general sense, the wrongs, which are less serious in nature, are
categorized as private wrongs and have been grouped as civil wrongs.

On the other hand, wrongs, which have more serious effects, are termed as
public wrongs and fall under the group of crimes. A crime affects the whole
community, but, tort violates individual rights.

In a case for tort, the injured party has to file a suit as the plaintiff. In criminal
litigation, however, the criminal proceeding against the accused is initiated by
the State.

Further, the law does not permit a settlement between the accused and the
victim in a criminal proceeding (except in a few cases) At any time in a suit for
tort, there can be a settlement by and between the parties and as a
consequence, the said suit can be withdrawn.

A tort can also be distinguished from a crime by the final award of the
concerned court. In tort, the injured party is awarded compensation, whereas,
in a criminal case, the accused is awarded punishment.

At times, an act may constitute both a tort as well as a crime. The remedies
available in such instances are not alternative, but concurrent.

Though there are multiple features that distinguish a crime from a tort, there
exists one basic similarity between the two as well. It is the primary duty not to
commit an offence.

Distinction between Tort and Crime

Tort Crime

A tort is an infringement or privation of private or civil whereas crime is a breach of public rights and duties that
rights belonging to individuals. affect the whole community.

In tort, the wrongdoer has to compensate the injured In crime, he is punished by the state in the interest of
party society.

In tort, the action is brought about by the injured party In crime, the proceedings are conducted in the name of th
 state.
In tort damages are paid for compensating the injured
It is paid out of the fine which is paid as a part of the
The damages in tort are unliquidated punishment.

In crime, damages are liquidated.

Tort and Contract

The definition given by P.H. Winfield clearly brings about the distinction
between tort and contract.

It says, Tortuous 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 for unliquidated damages.

A contract is a species of agreement whereby a legal obligation is constituted

and defined between the parties to it.

It is a legal relationship, the nature, content and consequence of which are

determined and defined by the agreement between the parties.

According to Salmond, a contract arises out of the exercise of the

autonomous legislative authority entrusted by the law to private persons to
declare and define the nature of mutual rights and obligations.

In the present day, tort and contract are distinguished from one another in
that, the duties in the former are primarily fixed by law while in the latter they
are fixed by the parties themselves.

The agreement is the basis for all contractual obligations. “People cannot
create tortious liability by agreement.

Thus I am under a duty not to assault you, not to slander you, not to trespass
upon your land because the law says that I am under such duty and not
because I have agreed with you to undertake such duty.
 Torts Contract

There should be privity between the parties.

In tort, no privity is needed
A breach of contract is an infringement of a right in
A tort is a violation in rem (right vested in some
personam( right available against some determinate person
person and available against the world at large.)
or body).
Motive is often taken into consideration in tort.
But it is immaterial in a breach of contract.
In tort the measure of damages is not strictly
In a breach of contract, the measure of damages is general
limited nor is it capable of being indicated with
more or less nearly determined by the stipulations of the
precision.
parties.
Eg. a manufacturer of ginger beer had sold to a retailer, ginger beer in a
bottle of dark glass. The bottle, unknown to anyone, contained the
decomposed remains of a snail that had found its way to the bottle at the
factory.

X purchased the bottle from the retailer and treated the plaintiff, a lady friend
(the ultimate consumer), to its contents. In consequence partly of what she
saw and part of what she had drunk, she became very ill. She sued the
manufacturer for negligence.

This was, of course, no contractual duty on the part of the manufacturer

towards her, but a majority of the House of Lords held that he owed a duty to
take care that the bottle did not contain noxious matter and that he was liable
if that duty was broken.

Tort and Quasi-Contract

Quasi-contracts cover those situations where a person is held liable to another
without any agreement, for money or benefit received by him to which the
other person is better entitled.

According to the Orthodox view, the judicial basis for the obligation under a
quasi-contract is the existence of a hypothetical contract that is implied by
law. But the Radical view is that the obligation in a quasi-contract is sui generis
and its basis is the prevention of unjust enrichment.
 Tort Quasi-contract

There is no duty owed to persons for the duty to repay the money or benefit
there is a duty to impose
received unlike tort In quasi-contract the damages recoverable are liquidated
unliquidated damages as in tort.
damages,

Quasi-contracts resemble tort and differ from contracts in one aspect. The
obligation in quasi-contract and in tort is imposed by law and not under any
agreement. In yet another dimension quasi-contract differs from both tort and
contract.

If, for example, A pays a sum of money by mistake to B. in Quasi contract, B is

under no duty not to accept the money and there is only a secondary duty to
return it.
Liability under Law of Torts

PERSONAL LIABILITY

A person is always liable for her own torts, so an agent who commits a tort is
liable; if the tort was in the scope of employment the principal is liable too.
Unless the principal put the agent up to committing the tort, the agent will
have to reimburse the principal. An agent is not generally liable for contracts
made; the principal is liable. But the agent will be liable if he is undisclosed
or partially disclosed, if the agent lacks authority or exceeds it, or, of course,
if the agent entered into the contract in a personal capacity.

Agencies terminate expressly or impliedly or by operation of law. An agency

terminates expressly by the terms of the agreement or mutual consent, or by
the principal’s revocation or the agent’s renunciation. An agency terminates
impliedly by any number of circumstances in which it is reasonable to
assume one or both of the parties would not want the relationship to
continue. An agency will terminate by operation of law when one or the
other party dies or becomes incompetent, or if the object of the agency
becomes illegal. However, an agent may have apparent lingering authority,
so the principal, upon termination of the agency, should notify those who
might deal with the agent that the relationship is severed.

Agent’s Personal Liability for Torts and Contracts

Tort Liability

That a principal is held vicariously liable and must pay damages to an injured third
person does not excuse the agent who actually committed the tortious acts. A person is
always liable for his or her own torts (unless the person is insane, involuntarily
intoxicated, or acting under extreme duress). The agent is personally liable for his
wrongful acts and must reimburse the principal for any damages the principal was
forced to pay, as long as the principal did not authorize the wrongful conduct. The agent
directed to commit a tort remains liable for his own conduct but is not obliged to repay
the principal. Liability as an agent can be burdensome, sometimes perhaps more
burdensome than as a principal. The latter normally purchases insurance to cover
against wrongful acts of agents, but liability insurance policies frequently do not cover
the employee’s personal liability if the employee is named in a lawsuit individually. Thus
doctors’ and hospitals’ malpractice policies protect a doctor from both her own mistakes
and those of nurses and others that the doctor would be responsible for; nurses,
however, might need their own coverage. In the absence of insurance, an agent is at
serious risk in this lawsuit-conscious age. The risk is not total. The agent is not liable for
torts of other agents unless he is personally at fault—for example, by negligently
supervising a junior or by giving faulty instructions. For example, an agent, the general
manager for a principal, hires Brown as a subordinate. Brown is competent to do the job
but by failing to exercise proper control over a machine negligently injures Ted, a visitor
to the premises. The principal and Brown are liable to Ted, but the agent is not.

Contract Liability

It makes sense that an agent should be liable for her own torts; it would be a bad social
policy indeed if a person could escape tort liability based on her own fault merely
because she acted in an agency capacity. It also makes sense that—as is the general
rule—an agent is not liable on contracts she makes on the principal’s behalf; the agent is
not a party to a contract made by the agent on behalf of the principal. No public policy
would be served by imposing liability, and in many cases it would not make sense.
Suppose an agent contracts to buy $25 million of rolled aluminum for a principal, an
airplane manufacturer. The agent personally could not reasonably perform such
contract, and it is not intended by the parties that she should be liable. (Although the
rule is different in England, where an agent residing outside the country is liable even if
it is clear that he is signing in an agency capacity.) But there are three exceptions to this
rule: (1) if the agent is undisclosed or partially disclosed, (2) if the agent lacks authority
or exceeds it, or (3) if the agent entered into the contract in a personal capacity. We
consider each situation.

Agent for Undisclosed or Partially Disclosed Principal

An agent need not, and frequently will not, inform the person with whom he is
negotiating that he is acting on behalf of a principal. The secret principal is usually
called an “undisclosed principal.” Or the agent may tell the other person that he is acting
as an agent but not disclose the principal’s name, in which event the principal is
“partially disclosed.” To understand the difficulties that may occur, consider the
following hypothetical but common example. A real estate developer known for building
amusement parks wants to acquire several parcels of land to construct a new park. He
wants to keep his identity secret to hold down the land cost. If the landowners realized
that a major building project was about to be launched, their asking price would be quite
high. So the developer obtains two options to purchase land by using two secret agents—
Betty and Clem.

Betty does not mention to sellers that she is an agent; therefore, to those sellers the
developer is an undisclosed principal. Clem tells those with whom he is dealing that he
is an agent but refuses to divulge the developer’s name or his business interest in the
land. Thus the developer is, to the latter sellers, a partially disclosed principal. Suppose
the sellers get wind of the impending construction and want to back out of the deal. Who
may enforce the contracts against them?

The developer and the agents may sue to compel transfer of title. The undisclosed or
partially disclosed principal may act to enforce his rights unless the contract specifically
prohibits it or there is a representation that the signatories are not signing for an
undisclosed principal. The agents may also bring suit to enforce the principal’s contract
rights because, as agents for an undisclosed or partially disclosed principal, they are
considered parties to their contracts.

Now suppose the developer attempts to call off the deal. Whom may the sellers sue?
Both the developer and the agents are liable. That the sellers had no knowledge of the
developer’s identity—or even that there was a developer—does not invalidate the
contract. If the sellers first sue agent Betty (or Clem), they may still recover the purchase
price from the developer as long as they had no knowledge of his identity prior to
winning the first lawsuit. The developer is discharged from liability if, knowing his
identity, the plaintiffs persist in a suit against the agents and recover a judgment against
them anyway. Similarly, if the seller sues the principal and recovers a judgment, the
agents are relieved of liability. The seller thus has a “right of election” to sue either the
agent or the undisclosed principal, a right that in many states may be exercised any time
before the seller collects on the judgment.

Lack of Authority in Agent

An agent who purports to make a contract on behalf of a principal, but who in fact has
no authority to do so, is liable to the other party. The theory is that the agent has
warranted to the third party that he has the requisite authority. The principal is not
liable in the absence of apparent authority or ratification. But the agent does not
warrant that the principal has capacity. Thus an agent for a minor is not liable on a
contract that the minor later disavows unless the agent expressly warranted that the
principal had attained his majority. In short, the implied warranty is that the agent has
authority to make a deal, not that the principal will necessarily comply with the contract
once the deal is made.

Agent Acting on Own Account

An agent will be liable on contracts made in a personal capacity—for instance, when the
agent personally guarantees repayment of a debt. The agent’s intention to be personally
liable is often difficult to determine on the basis of his signature on a contract.
Generally, a person signing a contract can avoid personal liability only by showing that
he was in fact signing as an agent. If the contract is signed “Jones, Agent,” Jones can
introduce evidence to show that there was never an intention to hold him personally
liable. But if he signed “Jones” and neither his agency nor the principal’s name is
included, he will be personally liable. This can be troublesome to agents who routinely
indorse checks and notes. There are special rules governing these situations, which are
discussed in Chapter 22 "Liability and Discharge" dealing with commercial paper.

Termination of Agency

The agency relationship is not permanent. Either by action of the parties or by law, the
relationship will eventually terminate.

By Act of the Parties

Certainly the parties to an agency contract can terminate the agreement. As with the
creation of the relationship, the agreement may be terminated either expressly or
implicitly.

Express Termination

Many agreements contain specified circumstances whose occurrence signals the end of
the agency. The most obvious of these circumstances is the expiration of a fixed period
of time (“agency to terminate at the end of three months” or “on midnight, December
31”). An agreement may also terminate on the accomplishment of a specified act (“on
the sale of the house”) or following a specific event (“at the conclusion of the last horse
race”).

Mutual consent between the parties will end the agency. Moreover, the principal may
revoke the agency or the agent may renounce it; such a revocation or renunciation of
agency would be an express termination. Even a contract that states the agreement is
irrevocable will not be binding, although it can be the basis for a damage suit against the
one who breached the agreement by revoking or renouncing it. As with any contract, a
person has the power to breach, even in absence of the right to do so. If the agency is
coupled with an interest, however, so that the authority to act is given to secure an
interest that the agent has in the subject matter of the agency, then the principal lacks
the power to revoke the agreement.

Implied Termination

There are a number of other circumstances that will spell the end of the relationship by
implication. Unspecified events or changes in business conditions or the value of the
subject matter of the agency might lead to a reasonable inference that the agency should
be terminated or suspended; for example, the principal desires the agent to buy silver
but the silver market unexpectedly rises and silver doubles in price overnight. Other
circumstances that end the agency include disloyalty of the agent (e.g., he accepts an
appointment that is adverse to his first principal or embezzles from the principal),
bankruptcy of the agent or of the principal, the outbreak of war (if it is reasonable to
infer that the principal, knowing of the war, would not want the agent to continue to
exercise authority), and a change in the law that makes a continued carrying out of the
task illegal or seriously interferes with it.

By Operation of Law

Aside from the express termination (by agreement of both or upon the insistence of
one), or the necessary or reasonable inferences that can be drawn from their
agreements, the law voids agencies under certain circumstances. The most frequent
termination by operation of law is the death of a principal or an agent. The death of an
agent also terminates the authority of subagents he has appointed, unless the principal
has expressly consented to the continuing validity of their appointment. Similarly, if the
agent or principal loses capacity to enter into an agency relationship, it is suspended or
terminated. The agency terminates if its purpose becomes illegal.

Even though authority has terminated, whether by action of the parties or operation of
law, the principal may still be subject to liability. Apparent authority in many instances
will still exist; this is called lingering authority. It is imperative for a principal on
termination of authority to notify all those who may still be in a position to deal with the
agent. The only exceptions to this requirement are when termination is effected by
death, loss of the principal’s capacity, or an event that would make it impossible to carry
out the object of the agency.

EXERCISES

1. Pauline, the owner of a large bakery business, wishes to expand her facilities by purchasing

the adjacent property. She engages Alice as an agent to negotiate the deal with the property

owner but instructs her not to tell the property owner that she—Alice—is acting as an agent

because Pauline is concerned that the property owner would demand a high price. A

reasonable contract is made. When the economy sours, Pauline decides not to expand and

cancels the plan. Who is liable for the breach?

2. Peter, the principal, instructs his agent, Alice, to tour England and purchase antique dining

room furniture for Peter’s store. Alice buys an antique bed set. Who is liable, Peter or Alice?

Suppose the seller did not know of the limit on Alice’s authority and sells the bed set to Alice

in good faith. What happens when Peter discovers he owes the seller for the set?

3. Under what circumstances will the agency terminate expressly?

4. Agent is hired by Principal to sell a new drug, Phobbot. Six months later, as it becomes

apparent that Phobbot has nasty side effects (including death), the Food and Drug

Administration orders the drug pulled from the shelves. Agent’s agency is terminated; what

terminology is appropriate to describe how?

5. Principal engages Agent to buy lumber, and in that capacity Agent deals with several large

timber owners. Agent’s contract ends on July 31; on August 1, Agent buys $150,000 worth of
 lumber from a seller with whom he had dealt previously on Principal’s behalf. Who is liable

and why?

Introduction
An obligation that legally binds an individual for settling a wrongful act they may have
committed. One who is bound in law and justice to do something which may be enforced
by action. This liability under Law of Torts may arise from contracts either express or
implied or in consequence of torts committed. The liabilities of one man are not in general
transferred to his representatives further than to reach the estate in his hands.

For example, A master is liable for the acts of his servant while in his employ, performed
in the usual course of his business, upon the presumption[1] that they have been
authorized by him; but he is responsible only in a civil point of view and not criminally,
unless the acts have been actually authorized by him. No fault liability: – Legal
responsibility for an injury that can be imposed on the wrongdoer without proof of
carelessness or fault.

Vicarious Liability under Law of Torts

Vicarious liability under Law of Torts refers to a situation where someone is held
responsible for the actions or omissions of another person. In the field of Torts a person
is liable for his own acts only.

(1) Liability of the principal for the tort of his agent.

(2) Liability of partners of each other’s tort.

(3) Liability of the master for the tort of his servant.

(4) Liability of the State or Liability of the Administration.

Liability of the principal for the tort of his agent:

There is a person who gives legal authority to another to act on his/her behalf in a
business relationship. Agent is a person how have the legal authority to act when dealing
with the third person in a business transaction.
‘Qui facit per se alium facit per se’, Act of an agent is the act of principle where one
person authorized another to commit a tort. The liability for that will not only of the
person who has committed but also who authorized it.

The principle is liable vicariously because of the principle agent relationship between
them. They are considered as joint tortfeaser. In such a case the plaintiff has a choice
either to sue the principle or agent, or both.

Liability of the master for the tort of his servant:

The doctrine of liability of a master under Law of Torts for the act of his servant is based
on maxim “Respondent Superior”. (Let the principle be liable) this put the master in the
same position as if he had done the act himself.

There are two essential for the liability of master –

• Tort was committed by the servant.

• The servant committed the tort course of his employment.
In general – The principle can only be had liable for only the agent act when all the four
conditions are made.

• Agent was employed to perform that particular type of act.

• Agent act was inspired by an intent of principle.
• Agent method could have been anticipated by the principle.
• Agent act occurred at an authorized placed and during the authorized time of
employment.
Mistake / Fraud of the Servant –
• Where servant having a lawful authority to do some act on behalf of his master makes an
excessive use of authority, causing loss to the plaintiff the master servant will be liable
depends on the nature of act.
• Servant has an implied authority to protect the property of his master.
Partner’s in a Partnership Firm
Relationship as between the partner as that of principle and agent. For a tort committed
by any partner in ordinary course of business of a firm all other partners are liable to the
same extent as that of guilty party.

Lloyd versus Grace Smith and Company[2]:-

In this case a lady (plaintiff) sells her property to a company, the lady just left to sign few
documents. There after company send his agent to get the sign of plaintiff (lady) on
property paper. The agent fraudulently made a gift deed of plaintiff property and took
sign on that gift deed. Than lady file Suit against company. Here company will be
vicariously held liable for the wrongful act of their Agent.

Strict Liability under Law of Torts

It states that any person who keeps hazardous substance on his premises will be held
responsible if such substance escape the premises and cause any damage. The rule
of Strict Liability under Law of Torts has evolved from the rule laid down in Ryland’s v
Fletcher (1868).

Ryland’s v Fletcher (1868)

Facts of the case there is a land (mill) of “defendant” and he want to construct a reservoir
upon his land so, he employed some independent contractors to construct a reservoir[3]
on his land. In the course of construction of reservoir the contractor dig up the whole land
and the contractor found a pipe line passing through the land to the coal mine (plaintiff).
Thus the contractor construct the reservoir and due to the heavy weight the pipe burst
and thus this cause a loss to the coal mine of plaintiff.

Thereafter coal mine owner (plaintiff) files a civil suit against defendant. here in this case
defendant took the defense that he doesn’t do rather it was a part of wrongful act of
independent contractor, here plaintiff took the plea that he was not claiming damages
under vicarious liabilities rather calming under the strict liability concept so the court
strictly made liable the defendant for the act of independent contractor.

Exceptions to Strict Liability under Law of Torts

1. Plaintiff’s own fault

2. Act of God

3. Consent of Plaintiff

4. Act of third party

5. Statutory authority

Plaintiff’s own fault

If the damage is caused by the act or default of the claimant himself (plaintiff) he has no
remedy. Ponting v Noakes (1849) the claimant’s horse reached over the defendant’s
boundary, nibbled some poisonous tree there and died accordingly and it was held that
the claimant could recover nothing, for the damage was due to the horse’s own intrusion.
Act of God

When an event occur which the defendant has no control over its occurrence and damage
is caused by cause of nature.

Act of god is a kind of inevitable accident with the difference from other inevitable
accident that in the case of Act of God resulting loss arises out of working of Natural
resources for eg- heavy rainfall, tides or storm.

Consent of Plaintiff

Where the claimant has expressly or impliedly consented for the danger and there has
been no negligence on the part of the defendant, the defendant is not liable.

Act of third party

If the harm has been caused due to the act of a stranger, who is neither the defendant’s
servant nor the defendant has any control over him, the defendant will not be liable under
this rule.

Statutory authority

An act done under the authority of an act it is a complete defense and agreed party has
no remedy accept for claiming the compensation has may have been provided by state.

Illustration – If a railway line is constructed there may be interference between private

lands. (Noise, smoke, vibration). No action will be lie for the interference of land or
incidental harm except for the payment of such expectation which the act itself may be
provided.

Absolute liability under Law of Torts

Strict liability without exceptions becomes Absolute Liability. The principle of Absolute[4]
Liability was used in India in case of M.C. Mehta. The burden of proof rests solely on the
defendant.

M.C Mehta v. Union of India (1987)

In the above case there was a U.S. Firm and the firm produces oleum gas in India, and one
day due to the default of third part, because the third party forget to on the safety
measure buttons then oleum gas leakage this leakage cause damage in India and also
cause death of the peoples. Thereafter plaintiff file suit against the U.S. firm, but the U.S
firm took the plea under strict liability rule that the damage was caused by the third party
default. And the U.S firm exempted to give the compensations to the victims.

But here the victims will left without remedy if no compensation will be given to them, so
with the passage of time court evolved a concept of “Absolute Liability” thus the court
made absolutely liable the U.S firm to provide the damages to the victims and thus the
exception of strict liability not applied.

Conclusion
The concept of vicarious liability is a very complex issue, as it is torn between trying to
protect the right of the victim to gain sufficient compensation and trying to protect the
employer from being overburdened by their employee. Although it goes against the
principle that wrongdoers should pay for their own acts, the doctrine of vicarious liability
seems appropriate as it does serve a useful purpose; it contributes to the maintenance of
safety standards and it enables the victims of negligence [5]by employees to be
reasonably certain that someone will be in a position to pay them compensation.
EXCEPTION OF TORT

Introduction
General exception in law of torts, quite popularly as defences or justification are a
collection of excuses undertaken to escape liability in the law of torts. Most of these
help in getting out in onto while for rest certain criterion needs to be fulfilled.
Effectively these can be addressed ‘as the rules of immunity which limit the rules of
liability’. There are various conditions which one present will prevent an act from
being wrongful which in their absence would be wrong. Under these conditions, an
act is to be excuse and whenever an act is in general to be wrongful it is assume that
no such qualifying condition exist these justifications or exceptions from civil liability
for acts prima facia wrongful or based principally upon public grounds. These
defences are:

• Statutory authority
• Private defence
• Inevitable accident
• Act of God
• Necessity
• Volenti non fit injuria- leave and license
• The wrongdoer is the plaintiff

Statutory Authority
The defence of Statutory authority operates upon the principle of authorization of
liability because if the legislature authorises the doing of an act (which if unauthorised
would be wrong) no action can be maintained for that act, on the ground that no court
can treat that as a wrong[2]. Consequently the person who has sustaine a loss by the
doing of that act is without remedy. Unless so far as the legislature has thought it
proper to provide for compensation to him. In a nutshell, the philosophy behind the
statutory immunity is that the lesser private right must yield to the greater public
interest[3]

Private Defence
Private defence is essentially a right to defend; own property, person, possessional
things against an unlawful harm. This defensive action or right may even be exercise
in respect of one’s wife or husband or parent or child or even a master or servant.
However in the court of law for this defence to exist it needs to prove that:
 • There was a necessity to act upon &
• The defensive action is take against an immediate threat of physical harm.

Also, it should be considered that while defending oneself the force employed must
not be out of proportion to the apparent urgency of the occasion[4], which would
otherwise make up for an action in the law of torts.

Inevitable Accident
This is a classic defence take up by people who despite having taken enough care
could not prevent an unfortunate set of events. Generally referred to as ‘Unavoidable
accident’. The three basic ingredients which are always checked before providing the
defence of inevitable accident are[5]:

• exercise of ordinary care

• ordinary caution
• ordinary skill

All causes of inevitable accident may be divide into two clauses

a. Those which are occasion by the elementary forces of nature are you connect
with the agency of the man and
b. Those which have their origin either in the whole or in part in the agency of
man. Weather in acts of commission or omission non-feasance or of
misfeasance.

Act Of God
Act of God or in legal terms viz major is the term use for referring to things over
which a man has no control whatsoever. Accelerated by nature, e.g. Tsunami and the
floods following the aftermath are appropriate examples. In this a person has little to
no resort in any way to mitigate the effects. However, the courts have always establish
that the responsibility cannot be duck away if the person knew the ways to mitigate
the damage in whatsoever amount.

Necessity
The defence of necessity goes by its name. Underlying the crux of this defence is the
idea of the greater good for the prevention of greater harm. The defence of necessity
can thus further be classified into:
 • cases of public necessity &
• cases of private necessity[6]

The defence of public necessity is based on the maxim ‘Salus populi suprema lex’.
This specific idea of ((the welfare of the people is the supreme law) public necessity is
found on the implie consent or assent on the part of every member of society, that his
welfare shall, in cases of necessity, yield to that of the community and that his
property, Liberty and life shall under circumstances be placed in jeopardy or even
sacrificed for the public good.
While private necessity has not been explore much but not left untouched. The
Supreme Court in the landmark decision of Olga Tellis v. Bombay Municipal
Corporation[7] explained that “under the law of torts necessity is a plausible defence
which enables a person to escape liability because the acts complained of are
necessary to prevent greater damage inter alia to himself. Here as elsewhere in the law
of torts, a balance has to be struck between competing set of values”.

Volenti non fit injuria: leave and license

Volenti non fit injuria is a Latin term essentially meaning that one can’t bring up an
action to which he consente, thus harm suffer voluntarily does not constitute a legal
injury and is non-actionable. A man cannot complain of injury to the chances of
which he has exposed himself with knowledge and because of his free will[8]. This
term is in contrast to Scienti non fit injuria. It means that knowledge of risk is not
enough to claim that the defence Volenti non fit injuria.

The wrongdoer is the plaintiff

In this particular defence, a plaintiff is not disabled from recovering because of being
himself a wrongdoer, unless some unlawful act or conduct on his part is connected
with the harm suffered by him as a part of the same transaction[9], essentially
meaning that a person is liable to an action for the injury which he does but he does
not forfeit his right of action for an injury sustained. For illustration purposes in the
case of Bird v Holbrook[10] the plaintiff was a trespasser as he climbed over
defendants wall in pursuit of a foul but he was held entitled to damages for the injury
caused by a spring gun set by the defendant without notice in his garden, although the
injury would not have occurred if the plaintive had not trespassed on the defendant’s
land.
Conclusion
These defences, however, are not limit by expanse, i.e. the court of law can adapt and
adjust these defences according to the needs. In the Indian context, their application is
seen in normal usage and suits by the corporation.

Master-Servant Relationship in Tort Law

Introduction
Whenever a person commits an act which is unlawful, that person is held liable
for violating the law and thus he is punished accordingly. For e.g. A enters into
the property of B without his permission, such an act of A amounts to trespass
and thus he is liable.

This is the general rule of torts but in some situations a person can be made liable
even if he has not done any wrong, if it is done by some other person with whom
he shares a certain relation, such as master and servant or principal and agent
and in these cases his liability is called vicarious liability.

What is Vicarious Liability?

Vicarious liability means the liability of a person for an act committed by another
person and such liability arises due to the nature of the relation between the two.
For e.g. A, is a driver who works for B and while driving B’s car for taking him to
his office, he hits C, a pedestrian due to his negligence in driving. In such a case
even though B was not driving the car he will still be liable for the accident which
was caused due to the negligence of A.

Relations in which Vicarious Liability arises

These are the major relations in which vicarious liability of a person arises
 1. Master and Servant.
2. Partners in a Partnership Firm.
3. Principal and Agent.
4. Company and its Directors.
5. Owner and Independent Contractor.

Vicarious Liability of Master for torts by Servant

In a Master-Servant relationship, the master employs the services of the servant
and he works on the command of master and thus a special relation exists
between the two and in case of a tort committed by the servant, his master is
also held liable.

There are many cases in which the servant does an act for his master and thus
in law, it is deemed that the master was doing that act himself, therefore if the
servant commits an unlawful act the master will also be held liable for the same.
This liability of the master is based on the following two maxims

1.Qui facit per alium facit per se: – It means that whenever a person gets
something done by another person then the person is viewed to be doing such an
act himself.

Illustration: If A is the owner of many trucks and employs drivers to drive them
for the purpose of trade and in case one of his drivers gets into an accident
because of his rash driving, then even though A did not drive the truck himself,
he will be liable for the accident.

2. Respondant Superior: – It means that the superior should be held

responsible for the acts done by his subordinate.

These two maxims have played a significant role in the development of the law
of vicarious liability of the master.

Essentials of Vicarious liability in Master-Servant

Relationship
These essential conditions have to be followed for the vicarious liability of master
to arise: –
1. The servant has committed an act which amounts to a tort.

2. Such a tortious act is committed by the servant during the course of his
employment under the master.

Reasons for liability of the Master

There are several reasons behind holding the master liable for the acts of his
servants which are: –

1. An act which is committed by the servant is considered to be done by

the master through him and therefore in the law of torts, it is assumed
that if any wrong is done by the servant, it has been committed by his
master indirectly and so the master is held liable for these wrongs.
2. The master is in a better financial position as compared to his servant
and thus in case of any loss caused by the tortious act of the servant,
the master is better suited to pay off the damages to the victim of the
act. Also, since the master is made liable he makes sure that all
reasonable care and precautions are carried so that he can avoid such
liability.
3. When a servant does any act, the benefit from such an act is enjoyed by
the master and thus for the liability arising out of the servant’s act, the
master should also shoulder that liability.

Test for Determining Master-Servant Relationship

For the determination of a Master-Servant relationship, certain tests have been
developed over a long period of time.

Traditional View – Control Test

As per this test, for the determination of a master and servant relationship, it
should be seen whether the master has the power to not only instruct what should
be done but also the manner of doing the act and if such power exists then as
per this test, the master and servant relationship exists between the two.

Illustration: A is the owner of a big area of land on which farming activities are
carried out and he has hired many workers for farming. A, not only instructs them
how to do their jobs but also how to do it. Here, by the test of control, the relation
between A and his employees is established as that of a master-servant.

Modern View
The old Control test is not applicable as an exhaustive test because in cases of
work requiring skill such as a doctor working in a hospital, the owner of the
Hospital cannot instruct the doctor on how to treat a patient and can only instruct
him to treat patients. Thus certain other tests have been developed for
determining the Master and Servant Relationship.

The test of work being an Integral Part of Business

In the case of Stevenson Jordan & Harrison Ltd. V Macdonald & Evans
(1952) 1 TLR 101, the test of an integral part of the business was applied. Here,
a contract of service was held to be a contract for such work which is an integral
part of the business and a contract for service was held to be a contract for
such work which is not an integral part of the business.

Illustration: In an IT company the programmers are the employees of the

company and there is a master-servant relationship but if the company has hired
catering services, the company does not have a master-servant relationship
because the act of providing food is not an integral part of an IT company.

Multiple Test
This test provides that people who are in a contract of service are deemed to be
employees whereas the people who are in contract for service are independent
contractors. In the case of Ready Mixed Concrete v Minister of Pensions and
National Insurance (1968) 2 QB 497, three conditions were laid down for a
contract of service

1. The servant agrees to provide his skill and work to the master for
performing some service in exchange for wages or some other
consideration.
2. He agrees to be subjected to such a degree of control so as to make the
person his master in performance of his work.
3. The other provisions of the contract are consistent with this provision of
being a contract of service.
This view was also reiterated in the case of The Management of Indian Bank v.
The Presiding Officer.
This test also includes other important factors that are used to determine the
master-servant relationship such as who owns the tools being used for the work,
is the employee paid wages monthly or on a daily basis and all other relevant
factors.

Thus the old view of using Control test is no longer the only method of
determining the relation of master and servant as it has been realized that in the
present complex world where there are a wide number of factors which affect the
process of determining the relation between the employee and the employer, it
is not possible to use just one test and thus the various aspects of a case are
seen to determine the nature of the relationship and to decide whether such a
relation is that of master and servant or not.

Difference between Servant and Independent

contractor
A servant and an independent contractor both do the work at the behest of
another person and thus what shall be done is not decided by them but by some
other person and thus on the face of it appears, that both are in the same
category and a master should be liable for the torts committed by both of them
but there is a difference between the two which separates them and
consequently, while, in case of tort by servant, the master is liable but in case of
independent contractor the master cannot be held liable.

In case of a servant there is a contract of service which means that along with
instructing what task should be done by the servant, the master also has the right
to instruct the manner in which that act has to be done and thus the servant does
not have autonomy in the performance of his duties.

Illustration: P is the owner of a newspaper in which many editors are working.

Here P as the owner has the right of telling them which news should be covered
and how it should be written.

Whereas in the case of an independent contractor there is a contract for

service which means that he can only be instructed as to what should be done
but how to do the work is left at his will and he does not take any instructions
from the master.

Illustration: If P is the owner of a newspaper and his machinery is damaged and

he calls J to repair it. Here P can instruct him what to do but how to repair the
machinery is left to be done by J without any instructions from P.
Various ways in which liability of Master arises
A master becomes liable in the following situations:

Wrong done as a natural consequence of an act by Servant for

Master with due care
If the employee does an act which is done in pursuance of the instructions of the
master, then the master will be held liable for any wrong which arises out of such
an act even if all due care is taken by the employee in discharging his work.

In Gregory v. Piper(1829) 9 B & C 591, the defendant and plaintiff had some
disputes between them and the defendant, therefore, ordered his servant to place
rubbish across a pathway to prevent the plaintiff from proceeding on that way
and the servant took all care to ensure that no part of it was touching the part of
the plaintiff’s property but with the passage of some time. The rubbish slid down
and touched the walls of the plaintiff and thus he sued for trespass. The defendant
was held liable despite his servant taking all due care.

Wrong due to Negligence of Worker

A master is also liable for an act of servant which he does negligently or fails to
take due care in carrying out.

In Pushpabai Purshottam Udeshi & Ors. v. Ranjit Ginning & Pressing Co. (P),
deceased was travelling in a car driven by the manager of the respondent
company and it met with an accident as a result of which he died. The dependents
of the deceased filed a claim and the tribunal allowed damages but on appeal to
the High Court, it was set aside on the grounds that the accident does not make
the respondent company liable. But the Supreme Court in its judgement overruled
the judgement of the High Court and held that from the facts of the case it was
clear that the accident had occurred due to the negligence of the manager who
was driving the vehicle in the course of his employment and therefore, the
respondent company was liable for his negligent act.

Illustration: If H works as a house cleaner for K then there is a master and

servant relationship between them but, if H instead of cleaning the house decides
to cook food even though he has only been hired for cleaning the house and due
to his negligence causes a fire which also causes loss to K’s neighbour L, then K,
will not be liable because H did an act which was outside the course of his
employment.

Wrong by excess or mistaken execution of a lawful authority

For making the master liable in such a case it has to be shown that: –

1. The servant had intended to do an act on behalf of his master, which he

was authorized to do.
2. The act would have been lawful if it was done in those circumstances
which the servant mistakenly believed were true or if the act would have
been lawful if done properly.
In Bayley v Manchester S&L Railway (1873) LR 8 CP 148, a porter of a
railway company while working mistakenly believed that the plaintiff was in the
wrong carriage even though he was in the right one. The porter thus pulled the
plaintiff as a result of which the plaintiff sustained injuries. Here, the Court held
the railway company vicariously liable for the act of the porter because it was
done in the course of his employment and this act would have been proper if the
plaintiff was indeed in the wrong carriage.

In Anita Bhandari & Ors. v. Union of India, The husband of the petitioner went to
a bank and while entering inside it, the cash box of the bank was also being
carried inside and as a result, the security guard in a haste shot him and caused
his death. The petitioner had claimed that the bank was vicariously liable in the
case because the security guard had done such act in the course of employment
but the bank had contended that it had not authorized the guard to shoot. The
Court held the bank liable as the act of giving him gun amounted to authorize
him to shoot when he deemed it necessary and while the guard had acted
overzealously in his duties but it was still done in the course of employment.

Wrong committed willfully by a servant with the

intention of serving the purpose of the master
If a servant does any act willfully, recklessly or improperly then the master will
be held liable for any wrong arising out of such act, if such an act is done in the
course of employment.

In Limpus v. London General Omnibus Co. (1862) EngR 839, the driver of
the defendant company, willfully and against the express orders not to get
involved in racing or to obstruct other omnibuses, had driven to obstruct the
omnibus of the plaintiff. In the case, the Court held that the defendant company
was liable for the act of driver because the driver’s act of driving the omnibus was
within the scope of the course of employment.

In Peterson v. Royal Oak Hotel Ltd. (1948) N.Z.I.R. 136, The plaintiff was a
customer who on being intoxicated was refused further drinks by the barman,
who was employed under the respondent and thus the plaintiff threw a glass at
him. The barman took a piece of the glass and threw it at him which hit his eye.
The respondent hotel was held liable due to the act of the barman who had a
master-servant relation with them.

Wrong by Servant’s Fraudulent Act

A master can also be held liable for any fraudulent act of the servant.

In Lloyd v. Grace Smith & Co. (1912) A.C. 716, the plaintiff was a widow who
owned 1000 pounds as dues on a mortgage and a cottage. She went to the
manager of the defendant, which was a firm of solicitors, and she asked for his
advice to get richer. The manager told her to sell her cottage and to call up the
amount of mortgage. She authorized the manager to sell the property and to
collect her money but he absconded with the money. Thus, she sued the
defendant company. It was held that the defendant was liable for the fraudulent
act of the manager because even a fraudulent act is not authorized, the manager
was authorized to take her signature and thus it was within the course of
employment.

Illustration: If A goes to a bank and deposits a check with C, an employee of

the bank and C fraudulently transfers that amount to his wife’s account. Here for
the fraudulent act of C, the bank will be liable.

Conclusion
Under Vicarious Liability a person can be held liable for the torts committed by
another person if that person shares a Master-Servant relation with him. The
servant does the act on behalf of his master and therefore the law of torts
provides that any wrongful act which is done in the course of employment by the
servant is bound to make the master liable for it. There have been several tests
for determining the relation of master and servant and the Court also applies its
discretion according to the facts of the case to determine such a relationship.
General Defences in Tort

Tort law is an essential aspect of the legal system that compensates individuals who have
suffered harm or injury due to the wrongful actions of others. However, there are certain
situations where a defendant may be able to escape liability by using a defence.

There are various general defences available in tort law that can be used by the defendant
to escape liability. These defences are available to the defendant in all types of tort actions.

These defences are known as general defences in tort law.

Meaning of General Defences

General defences in tort law are the legal principles that can be used by a defendant to
escape liability for a tortious act. These defences are applied to protect the defendant’s
legal rights and interests. The plaintiff must prove their case, and if the defendant is
successful in establishing a defence, they will not be held liable for any harm or injury
caused to the plaintiff.

Purpose of General Defences in Tort

The primary purpose of general defences in tort law is to provide a fair and just balance
between the legal rights of the plaintiff and defendant. These defences are necessary to
ensure that the defendant’s legal rights are not infringed upon and that they are not held
liable for actions that were beyond their control.

Additionally, these defences provide a framework for determining whether the

defendant’s actions were justified under the circumstances.

Application of General Defences in Torts

General defences in tort law are applicable in various situations. However, it is important
to note that the availability and effectiveness of these defences will depend on the specific
circumstances of each case. A defendant must establish that their actions fall within the
scope of a particular defence to avoid liability.

General Defences in Law of Torts

The defences available in torts are given as follows:

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

 • The wrongdoer is the plaintiff
• Inevitable accident
• Act of god
• Private defence
• Mistake
• Necessity
• Statutory authority
Volenti non fit injuria
The defence of volenti non fit injuria means that the plaintiff has voluntarily assumed the
risk of injury or harm. The defendant can argue that the plaintiff was aware of the risk
involved in the activity and willingly accepted it, and therefore, cannot claim damages for
any harm suffered as a result.

The essential ingredients of this defence are:

a. The plaintiff must have voluntarily and knowingly assumed the risk of harm or injury.

b. The plaintiff must have been aware of the nature and extent of the risk.

c. The plaintiff must have consented to the risk.

Illustration: A professional wrestler, John, takes part in a wrestling match. During the
match, he sustains a severe injury. However, he cannot claim damages for the injury
sustained because he knew the risks involved in the activity and voluntarily participated
in it.

In the case of Hall v. Brooklands Auto Racing Club, the plaintiff attended a car racing
event held on the defendant’s track. During the race, two cars collided and one was
thrown into the spectator area, injuring the plaintiff. The court found that the plaintiff
knowingly assumed the risk of attending the race, as the possibility of such an injury was
foreseeable. As a result, the defendant was not held liable for the plaintiff’s injuries.

Similarly, in Padmavati v. Dugganaika, the driver of a jeep picked up two strangers who
needed a lift to a nearby town. While on the way, the jeep overturned due to a problem
with the right wheel, causing the two strangers to be thrown from the vehicle and suffer
injuries, resulting in one person’s death.

The court concluded that the driver’s employer could not be held liable for the accident,
as it was an unforeseeable and involuntary occurrence. Additionally, the principle of
volenti non fit injuria did not apply in this case, as the strangers did not willingly assume
any risks when they entered the vehicle.
In rescue situations, where a person voluntarily assumes a risk to save another from harm
or danger, the courts have generally held that the defence of volenti non fit injuria is not
available.

Illustration: A person jumps into a river to save a drowning child, knowing that the river
is dangerous and that there is a risk of drowning. If the rescuer is injured or killed in the
process, the defendant cannot rely on the defence of volenti non fit injuria. However, the
defendant may argue that the rescuer assumed the risk of injury by voluntarily jumping
into the river to save the child.

In the case of Haynes v. Harwood, the defendant’s employee left two horses unattended
in a public street. A boy threw a stone at the horses, causing them to bolt and endanger
a woman and others on the road. A constable stepped in to protect them and was injured
while doing so. As this was a rescue case, the defence of volenti non fit injuria was not
available, and the defendants were held liable for the constable’s injuries.

However, if a person voluntarily tries to stop a horse that poses no danger, they would
not be entitled to any remedy. This means that the principle of volenti non fit injuria would
be available as a defence, and the person would not be able to hold the horse owner
liable for any injuries they sustain.

Plaintiff the wrongdoer

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

The defence of plaintiff the wrongdoer means that the plaintiff was also responsible for
the harm or injury suffered. The defendant can argue that the plaintiff’s actions
contributed to the harm suffered, and therefore, they should not be held solely liable for
the damages.

The essential ingredients of type of general defences in tort are:

a. The plaintiff must have contributed to the harm or injury suffered.

b. The plaintiff’s contribution to the harm must be significant.

Illustration: Tom is driving on the wrong side of the road and collides with a car driven
by Mike. Both Tom and Mike suffer injuries. However, Tom can argue that Mike was also
at fault as he was driving at an excessive speed, and therefore, he should not be held
solely responsible for the damages.
In Bird v. Holbrook, the plaintiff was awarded damages for injuries he sustained due to
spring-guns set up in the defendant’s garden without any warning.

In Pitts v. Hunt, a rider who was 18 years old encouraged his 16-year-old friend to drive
recklessly under the influence of alcohol. The motorcycle they were on crashed, and the
driver died instantly. The pillion rider suffered serious injuries and filed a suit seeking
compensation from the deceased’s relatives. However, the plea was rejected as the
plaintiff himself was found to be the wrongdoer in this case. This illustrates the defence
of plaintiff as the wrongdoer, which may be used to argue against a claim of
compensation by a plaintiff who contributed to their own injuries through their
own wrongful conduct.

Inevitable accident
The defence of inevitable accident means that the harm or injury suffered was not
preventable. The defendant can argue that the harm or injury was due to unforeseeable
circumstances, and therefore, they should not be held liable for it.

The essential ingredients of this type of general defences in tort are:

a. The harm or injury suffered was not foreseeable.

b. The harm or injury suffered was due to unforeseeable circumstances.

Illustration: A tree branch falls on a car, causing significant damage. The car owner
cannot claim damages from the owner of the tree as the falling of the branch was due to
unforeseeable circumstances and was not preventable.

In the case of Stanley v. Powell, both the defendant and the plaintiff were participating
in a pheasant shooting event. While the defendant was aiming at a pheasant, the bullet
ricocheted off an oak tree and hit the plaintiff causing serious injuries. The incident was
deemed an inevitable accident, and the defendant was held not liable.

Similarly, in Assam State Coop., etc. Federation Ltd. v. Smt. Anubha Sinha, the plaintiff
had leased out their premises to the defendant. The defendant had requested the landlord
to repair the defective electric wirings of the premises, but the landlord failed to do so.
Due to a short circuit, a fire broke out in the house, causing damages. The tenant was not
negligent in any way. When the landlord claimed compensation for the damage, it was
held that it was an inevitable accident, and the tenant was not liable.

The case of Raj Rani v. Oriental Fire & General Ins. Co. Ltd. involved a truck whose
front right spring and other parts broke unexpectedly while being driven, causing the
driver to collide with a tractor coming from the opposite direction. Both the driver and
the owner of the truck were unable to prove that they had taken necessary precautions
while driving. The court found that this case was one of negligence and not an inevitable
accident, and therefore held the defendant liable.

Act of God
The defence of an act of God means that the harm or injury suffered was due to natural
events beyond human control. The defendant can argue that the harm or injury was
caused by an act of God, and therefore, they should not be held liable for it.

The essential ingredients of these general defences in tort are:

a. The harm or injury suffered was due to natural events beyond human control.

b. The defendant could not have prevented the harm or injury.

Illustration: A sudden flood damages a property, and the property owner cannot claim
damages from the government as the flood was caused by a natural event beyond human
control.

In the case of Kallu Lal v. Hemchand, the wall of a building collapsed due to rainfall of
about 2.66 inches, which was considered normal. The collapse resulted in the death of the
respondent’s children. The court held that the defence of Act of God cannot be applied
by the appellants in this case, as the amount of rainfall was not sufficient to invoke such
a defence. Thus, the appellants were held liable for the incident.

Private defence
The defence of private defence means that the defendant acted in self-defence or defence
of another person or property. The defendant can argue that their actions were necessary
to protect themselves or others from harm or injury.

The essential ingredients of this defence are:

a. The defendant must have acted in self-defence or defence of another person or

property.

b. The defendant’s actions must have been necessary to prevent harm or injury.

Illustration: Jack sees a person assaulting his friend, and he intervenes to protect his
friend. Jack cannot be held liable for any harm or injury caused to the assailant as he acted
in defence of his friend.
The case of Bird v. Holbrook involved the plaintiff, a trespasser, who was injured by
spring guns installed by the defendant in his garden without any warning. The court ruled
that the defendant was not justified in his actions and that the plaintiff was entitled to
compensation for their injuries.

Similarly, in Ramanuja Mudali v. M. Gangan, the defendant had laid a network of live
wires on their land, which caused serious injuries to the plaintiff who crossed the land at
night without notice. The court held the defendant liable for their actions, as the use of
live wires was not justified.

In Collins v. Renison, the plaintiff was thrown off a ladder by the defendant when he
attempted to nail a board on the defendant’s garden wall. The defendant argued that he
had only gently pushed the plaintiff, but the court ruled that the force used was not
justifiable as a defence.

Mistake
The defence of mistake means that the defendant made an honest mistake and did not
intend to cause harm or injury. The defendant can argue that they did not have the
required knowledge or information to act differently.

The essential ingredients of this defence are:

a. The defendant made an honest mistake.

b. The mistake was made in good faith.

c. The mistake was not intentional.

Illustration: John, a doctor, prescribes the wrong medicine to a patient due to a mix-up
in the patient’s medical history. The patient suffers an adverse reaction to the medicine.
However, John cannot be held liable for the harm caused as he made an honest mistake.

In the case of Morrison v. Ritchie & Co, the defendant mistakenly published a statement
that the plaintiff had given birth to twins in good faith when in reality the plaintiff had
only been married for two months. The defendant was held liable for the tort of
defamation, and the fact that they acted in good faith was considered irrelevant in this
case.

Similarly, in Consolidated Company v. Curtis, an auctioneer mistakenly believed that the

goods he auctioned off belonged to his customer. However, the true owner filed a suit
against the auctioneer for the tort of conversion. The court held the auctioneer liable and
stated that the defence of mistake of fact is not applicable in this case.

Necessity
The defence of necessity means that the defendant’s actions were necessary to prevent a
greater harm or injury. The defendant can argue that their actions were necessary under
the circumstances to prevent harm or injury to themselves or others.

The essential ingredients of this defence are:

a. The defendant’s actions were necessary to prevent greater harm or injury.

b. The defendant’s actions were not disproportionate to the harm or injury prevented.

Illustration: A firefighter breaks into a house to put out a fire, causing damage to the
property. However, the firefighter cannot be held liable for the damage caused as their
actions were necessary to prevent harm to human life.

The defendant in the case of Carter v. Thomas entered the plaintiff’s land in order to
extinguish a fire in good faith, while the fire extinguishing workers were already on the
premises. However, despite his good intentions, the defendant was found guilty of the
offence of trespass.

Similarly, in Kirk v. Gregory, A’s sister-in-law hid some jewelry in the room where A was
lying dead, believing it to be a safer place. The jewellery was subsequently stolen, and a
case was filed against A’s sister-in-law for trespass to the jewelry. The court found her
liable for trespass as her actions were deemed unreasonable.

Statutory authority
The defence of statutory authority means that the defendant was acting under the
authority of a statute. The defendant can argue that their actions were permitted by law,
and therefore, they should not be held liable for any harm or injury caused.

The essential ingredients of this defence are:

a. The defendant was acting under the authority of a statute.

b. The defendant’s actions were permitted by law.

Illustration: A police officer uses force to subdue a suspect while making an arrest. The
police officer cannot be held liable for the harm or injury caused as their actions were
authorized by law.

In the case of Hammer Smith Rail Co. v. Brand, the plaintiff’s property value decreased
due to the loud noise and vibrations produced by the trains on the railway line
constructed under a statutory provision. The court ruled that the defendant could not be
held liable for damages as the construction was authorized by the statute, serving as a
complete defence.

Similarly, in Smith v. London and South Western Railway Co., the defendant’s servants
left the trimmings of hedges near the railway line, which caught fire due to sparks from
the engine and caused damage to the plaintiff’s cottage. The court held the railway
authority liable for negligence and ordered them to pay compensation to the plaintiff for
the loss suffered.

Conclusion
General defences in tort law provide defendants with the legal framework to protect their
legal rights and interests. However, it is essential to note that the availability and
effectiveness of these defences will depend on the specific circumstances of each case. It
is the responsibility of the court to carefully consider the evidence presented by both
parties and determine whether a defence is valid or not.

Top 5 Important Case Laws on Defences to the Law of Torts

Often when we are stuck in some problem, we always thought of some way to get out. Like
that in the law of torts when people are stuck in some cases, they always find different
defences to get out of the cases. In this article, the author will talk about the five important
cases in the history of torts on defences taken by the parties.

Padmawati v. Dugganaika[1]-
Facts- The defendant that is the Dugganaika who is the owner of the jeep bearing
registration no. MYS 438. On 16-3-1969. He was travelling to Kodur from Hiriyaka.
Mohiddin who is respondent 3, in this case, was the driver of the jeep and the drove the
jeep to Kodur. After reaching to Kodur respondent 1 i.e. Dugganaika got down from the
jeep and ordered respondent no. 3 to take the jeep to Hosanagar and also to feel the
petrol tank.
In Kodur itself, Krishna Bhat and the deceased Ramakrislina got into the jeep. After that,
the jeep started to go towards Hosanagar. After reaching one-mile Rama Rao gave the
signal to stop the jeep. But the driver of the bus didn’t notice the signal given by Rama
Rao. Rama Rao noticed that the jeep is being slowed down at some distance.

Rama Rao heard some sound coming from the jeep. So, he gave the signal to proceed to
the jeep. After that, the driver started driving the jeep and suddenly the right-hand side
of the front of the jeep flew away[2], and the driver along with Ramakrishna was thrown
out of the jeep. Ramakrishna suffered several injuries and was declared dead. The plaintiff
claimed damages.

It was contended from the side of the respondent that the driver was neither driving
negligently nor rashly and also it was just an accident.

Held- The master and the driver are not liable as the driver was not driving rashly and
negligently and the plaintiff voluntarily got into the jeep. So, they had voluntarily given
permission.

This principle is called as volentia non-fit injuria– where the plaintiff has consented and
suffered harm.

Hall v. Brook Lands Auto Racing Club[3]-

Facts- There was a racing competition. Some people were the owners of the track and it
was oval in shape.

Certain fees are to be paid by the spectator to view the race competition. So, the
competition started and the two cars were travelling parallel towards the finish line. So,
when the cars were taking a sharp bend to the left. The car suddenly turned right and the
cars behind them did the same but suddenly there was a collision between the two cars
and the first car flew in the air and directly hit the two spectators which resulted in the
death of the spectators. This type of accident is the first accident that has ever happened
by the club.

So, the injured persons and the other family of the deceased spectators filed a
compensation case against the owner of the track.

Held- It was held that the deceased and the other injured spectators impliedly took the
risk of getting injured. The respondent took the defence of volentia non-fit injuria. The
moment they bought the ticket and entered the stadium they have impliedly consented
towards the risk as this is such a dangerous sport. So, the defendant is not held liable.
Brown v. Kendall[4]-
Facts- Brown and Kendall both own dogs. One day suddenly their dogs started fighting
with each other and to separate them the defendant brought a stick i.e. is four feet long.
While he was striking the stick towards the dogs, they ran towards the plaintiff and the
defendant hit the plaintiff in the eye through the stick which caused severe eye injury to
the plaintiff.

The plaintiff filed a case against the defendant for assault and battery.

Held- It was held that if an individual who is doing a lawful act in a lawful manner using
ordinary care as a reasonable man will not be held liable for injuries caused to another
party.

Here Brown has to show that the defendant was not careful and intentionally beat him
with the stick to hold him liable and if the injury to Brown was unavoidable then the
defendant is not held liable i.e. defence of Inevitable Accident was applicable.

Nichols v. Marshland[5]-
Facts– The defendant made artificial lakes years ago. He had built a series of an artificial
lake that never flooded until 18th of June, 1872. On the 18th of June, there was an unusual
rainfall. And due to the heavy rainfall, the lakes overflowed and the gates of the dam gave
away because of which the water flowed towards the bridge.

Held- It was held that the defendant is not liable and there was no case of negligence. It
was the case of Act of God which means the one cannot be stopped after due care and
diligence and which is unavoidable. The Court held that the lakes were they’re from years
ago and this type of accident never happened and also there was an unusually heavy
rainfall which overflowed the lake which never happened in the previous years.

Kallulal v. Hemchand[6]-
Facts- The appellants were the owner of the house situated in local gunj of Jabalpur. One
wall of the house is adjoined with the highway. There was a cycle wheel stalled on the wall
which was joint with the highway. One day when it was raining the wall of the house
collapsed which resulted in the death of the two children of the stall owner.

The case was filed against the owner of the house. The respondent contended that this is
an act of god and he is not at fault.

Held- It was held the defendant is held liable as there was a rainfall of 2.66 inches which
is ordinary and it was not an act of god. The defendant was held liable to pay
compensation to the plaintiff. And the defence of Act of God can be pleaded when there
occurs something extraordinary and out of the blue which cannot be stopped from
reasonable care.

THE CONCEPT OF DEFAMATION AND ITS TYPES

The concept of defamation can be understood as a oral or a written statement made by

words or by expression which tends to damage the reputation of the other person. In the
Black Law Dictionary the concept of defamation can be understood as “the offence of
injuring a person character, fame, reputation by false and malicious statement”

There are basically two types of defamation one is the libel and another is slander. The
statement which is written and is published is called as libel, on the other hand if the
statement which brings in loss of reputation is spoken is called as slander

The libel is basally addressed to the eyes and slander is addressed to the ears. In libel the
statement is made in hard and permanent form such as writing, printing , in from of
pictur.es. In slander the concept is just the opposite the words are mostly spoken and in
form of visible or audible form. Libel is a actionable tort and also comes in the preview of
the criminal offence. On the other form the slander is the civil injury and no action can be
brought against it . The tort of libel is actionable per se (that is without proof of actual
damage) . On the other hand slander is actionable is only on the point that the proof of
actual damage.

The Element to Prove the Tort of Defamation

(1) The Statement should be made : the very first element is that the statement must
be actually made. The statement can be either in words or spoken . it can be read or can
be made by visible representation.

(2) The, statement should directly refer to the person who is claiming the
defamation made : The defamatory statement must be made directly to the person, class
of person, A business organization, or even if not made directly should be recognized or
identified that it was made to him or her

(3) The statement made must be defamatory : the statement should be in legal terms
a defamatory statement. A defamatory statement tends to diminish the good opinion that
others hold about the person and it has the tendency to make others look at him with a
feeling of hatred, ridicule, fear or dislike.
(4) The statement should be false and hoax : The statement should be false since truth
is the defense to the defamation

(5) The Statement must be published: In the Case of Mehendra Ram vs Harnandan
Prasad the court made the view that the statement must be published and actual loss of
reputation must be caused in order to claim defamation

The defenses available against defamation

(1) If the spoken words are truth: If the statement is true , then in that case it is a
absolute defense and if the statement is true and authentic then it would amount to
defamation. The burden of proof is on the defendant to prove otherwise

(2) Fair and Bonafide Comment: the statement if fair and if in the best interest of the
public is not defamation.

(3) Absolute privilege: In the case of T.J Ponnen vs M. C Verghese the court held that the
privileged communication between a husband and a wife is not defamation .

Further in the case of the Chatterson vs Secretary of the State the parliamentary secretary
position comes under privileged communication and no action lies in the same.

The following statement are exempts from the defamatory statement

(1) during judicial proceedings,

(2) by government officials,

(3) by legislators during debates in the parliament

(4) during political speeches in the parliamentary proceedings and,

(5) communication between spouses.

The court looks into many things before deciding the amount of compensation Some of
them are as follows :

(1) The conduct of the plaintiff.

(2) The absence or refusal of any retraction or apology of libel.

(3) The whole conduct of the defendant from the date of publication of libel to the date
of the decree
(4) His position and standing in society.

(5) The nature of libel.

Conclusion
The law of defamation is used to protect persons reputation from false and fake statement
which are made against them. The court looks into many things before deciding the
amount of compensation Some of them are as follows ,The conduct of the plaintiff, The
absence or refusal of any retraction or apology of libel., His position and standing in
society and The nature of libel.

Essentials of Defamation

Defamation is a legal term used to describe an act that harms the reputation of an
individual or entity. It involves making a false statement about a person or entity that
causes injury to their reputation.

In this context of law of torts, reputation is considered a valuable property, and any injury
caused to it is treated as a civil wrong.

The PAKISTAN PENAL CODE, in section 499, defines defamation and section 500 provides the
punishment for the same, which includes a term of simple imprisonment for two years, a fine, or
both.

Essentials of Defamation
The essentials of defamation includes: The statement must be defamatory, meaning it
lowers the reputation of the plaintiff. The statement must refer to the plaintiff, and it must
be published or communicated to a third party.

It is crucial to note that defamation can cause significant harm to a person’s reputation
and can lead to legal consequences under Indian law.

The Statement Must Lower the Reputation of the Plaintiff

To establish defamation, the statement in question must be defamatory, meaning it tends
to lower the reputation of the plaintiff. Whether a statement is defamatory depends on
how right-thinking members of society are likely to perceive it. The defendant cannot use
a defence that the statement was not intended to be defamatory if it causes a feeling of
hatred, contempt, or dislike.

For example, in Ram Jethmalani v. Subramanian Swamy, the court held that Dr. Swamy
defamed Mr. Jethmalani by alleging that he received money from a banned organisation
to protect the then Chief Minister 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 that the
statement made by Arvind Kejriwal and five other leaders was defamatory, and the matter
was resolved after all the defendants apologized for their actions.

However, it is important to note 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 defamation.

The Statement Must Refer to the Plaintiff

In a defamation case, the plaintiff must prove that the statement in question referred to
them. It is immaterial whether the defendant intended to defame the plaintiff. If the
person to whom the statement was published could reasonably infer that the statement
referred to them, the defendant will be liable.

For instance, if a bank, A, publishes a notice to all its branches not to give loans to any
person from a town called XYZ because the people of XYZ are often repeated defaulters,
and as a result, a resident of XYZ, B, suffers a significant loss, B can hold A liable for
defaming them, even though the bank did not directly focus on them.

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

The Statement Must Be Published

Publication of a defamatory statement to someone other than the person defamed is
crucial to making a person liable. Without publication, no action for defamation can be
pursued.

However, if a third person wrongfully reads a letter intended for the plaintiff, the
defendant may still be liable. If a defamatory letter sent to the plaintiff is likely to be read
by someone else, there will be a valid publication.
In Mahendra Ram v. Harnandan Prasad, the defendant was held liable for sending a
defamatory letter to the plaintiff, written in Urdu, knowing that the plaintiff did not know
Urdu, and the letter would very likely be read by another person.

Innuendo
In defamation law, the concept of innuendo refers to the hidden or secondary meaning
of a statement that is not immediately apparent. In some cases, a statement that appears
to be innocent at first glance may be defamatory because of its latent or secondary
meaning. For instance, a statement of praise or commendation could be considered
defamatory in the context in which it is said.

One classic example of innuendo in defamation law is when a statement that a woman
has given birth to a child is considered defamatory when the woman is unmarried. This is
because the statement implies that the woman has engaged in sexual activity outside of
marriage, which may be considered morally or socially unacceptable in some contexts.

Another example of innuendo in defamation law can be found in the case of Tolley v J.
S. Fry & Sons, Ltd (1931) A.C. 333. In this case, the defendants issued an advertisement
featuring a caricature of a famous amateur golf champion playing golf with a packet of
chocolate protruding from his pocket. A comic caddy in the ad said that the chocolate
was excellent as the plaintiff’s drive. Although the statement itself may seem harmless,
the court found that the ad was defamatory because of its latent meaning, which
suggested that the plaintiff endorsed the chocolate.

It is important to note that intention to defame is not necessary for a statement to be

considered defamatory. Even if the person making the statement believed it to be
innocent, if the words are considered defamatory by those to whom the statement is
published, then defamation may have occurred.

This point was highlighted in the case of Cassidy v Daily Mirror Newspapers Ltd. (1929)
2 K.B. 331. In this case, the defendants published a photograph of Mr. Cassidy and Miss
‘X’ in their newspaper with the words “Mr. M. Cassidy, the race house owner, and Miss ‘X,’
whose engagement has been announced.” Mr. Cassidy did not live with his lawful wife
(Mrs. Cassidy) but occasionally stayed with her at her flat. Mrs. Cassidy sued the defendant
for libel, alleging that the innuendo of the statement was that Mr. Cassidy was not her
husband and was living with her in immoral cohabitation. The court held that the
innuendo was established, even though the statement may have appeared innocent on
its face.
Conclusion
Defamation is a legal term used to describe a false statement that causes harm to an
individual or entity’s reputation. It is considered a civil wrong and is punishable under
Indian law.

The essentials of defamation are: statement must be defamatory, refer to the plaintiff, and
be published for the person making the statement to be held liable.

TYPES
We have two types of defamation under Law of Torts which the first is Libel and
second is Slander.

• Libel this is a defamatory statement that has been published in a written form, this written
form of statement comes under defamation libel category. There are two condition that
needs to be seen when we file case of libel against: –
1.
1. Defender published the defamatory statement about the plaintiff
2. Other people also have been exposed to the statement.
In the case of libel there is not other further requirement, law itself presumes once the
statement is published the defamatory statement will remain in written format or any
other, and this will remain in public for long time and will continue to do harm.

• Slander it refers to the statement that is defamatory but is present in public in verbal form
(spoken) this is little difficult to prove as there is no particular proof of the presented fact
so in this the plaintiff may suffer some issues. There are two types of slander and slander
per se.
1. In the first the plaintiff must prove the stamen has been flown to at least one other parson
(i.e. the essential for defamation case) and because of that the plaintiff suffered what are
referred as special damage. This can be like loss of customer, being fired, or other financial
harm.
2. Slander per se does not require that the plaintiff prove the special damage. This is because
slander per se claims involves the statement that is in itself presumed to be damaging
plaintiff. Slander per say category include-
•
o Imputing criminal conduct of the plaintiff
o Saying that plaintiff has communicated some type of disease which is
communicable in nature.
o Any statement that can affect the plaintiff business or profession comes under this
category of slander per se.
Essentials of Defamation under Law of Torts
The statement must be published- the statement should lower the reputation in right
thinking member of society generally or which tends to make them shun or avoid that
person.

Ram Jethmalani v. Subramaniam Swamy inquiry commission was setup for examination
the facts and circumstances related to assassination of late Shri Rajiv Gandhi. The
dependent in press conference said the chief minister of Tamil Nadu has prior knowledge
of assassination. And the statement was found ex facie defamatory as that lowered down
the reputation of plaintiff.

The statement must refer to the plaintiff, if the statement that is reasonably infer that the
statement referred to the plaintiff, it this is not the case the defendant is not liable.

Newstead v. London Express Newspaper Ltd. The defendant published newspaper article
that mentioned that particular person XYZ has been convicted for bigamy. The story was
true but with same name in that same area another person who was barber was getting
defamed after, as the words were considered to be understanding as referring to the
plaintiff, the defendant was held liable.

Defamatory statement must be published- publication means that statement should be

known to the other person other then the plaintiff or the defendant. It no other person
except the plaintiff knows about this then there is no defamation.

Mahender Ram v. Harnandan Prasad in this the defamatory letter was written in Urdu
script, the plaintiff was not aware of this script, so he asked third person to read, this was
held as defamation as the defendant was aware of the fact that plaintiff do not know Urdu.

Defenses available in Defamation under Law of Torts:

1. Justification of truth– under criminal law proving statement which was made was true
does not comes under defense but under civil law, merely showing the statement
mentioned is a true statement then person. The defendant argued that conviction was
described with substantial and sufficient accuracy with words so far.
2. Fair Comment– the comment must be expression of opinion rather that assertion of fact,
the comment must be fair without any malice, the matter commented upon should be in
the public interest.
3. Privilege– in certain occasion where law also recognized the right to freedom of speech,
where plaintiff has right of reputation, law treats those occasions as the privileged, these
are further two types-
•
 o Absolute privilege is that no action, lies for defamatory statement even though the
statement is false or made maliciously. This has been given in parliament privilege,
judicial proceeding and state communication.
o Qualified privilege is necessary and it must be provided for without malice. The
defendant has to prove the statement was made on a privileged occasion fairly.

Definition of Remoteness of Damage

In tort law, the concept of the remoteness of damage refers to the idea that a
defendant is only liable for the harm caused by their actions if that harm was
foreseeable at the time of the wrongdoing. If the harm suffered by the plaintiff
was too remote or unforeseeable, the defendant cannot be held responsible
for it.

This principle helps to ensure that tort law does not impose unreasonable or
unfair burdens on defendants and is based on the idea that individuals should
only be responsible for the reasonably foreseeable consequences of their
actions.

The concept of remoteness of damage is an important element of the law of

torts because it establishes a causal connection between the defendant’s
actions and the plaintiff’s harm, and limits the extent to which a defendant can
be held responsible for harm suffered by the plaintiff.

Tests to Determine Remoteness of Damage

The principle of remoteness of damage is applied through the following tests:

• “But for” test

• Remoteness/ Foreseeability test
• Proximity test

The idea of remoteness of damage can be traced back to the Wagon Mound
Case, which established the two-stage test for determining whether the
defendant is liable for the plaintiff’s losses.

“But for” Test

The first stage is known as the “but for” test, which asks whether the
damage would have occurred “but for” the defendant’s conduct. In other
words, if the defendant had not acted negligently, would the plaintiff have
suffered the harm? If the answer is yes, then the defendant’s conduct is the
cause in fact of the plaintiff’s harm.

However, the “but for” test alone is not sufficient to establish liability, as it may
lead to absurd or unfair results. For example, if a negligent driver causes a
minor scratch on the plaintiff’s car, and the plaintiff subsequently crashes the
car while driving to the repair shop, the driver may argue that the crash was
not foreseeable and therefore not his fault. To avoid such outcomes, the law
imposes a second stage of analysis, which is called the “remoteness” or
“foreseeability” test.

Remoteness/Foreseeability Test
Remoteness/Foreseeability Test

The foreseeability test asks whether a reasonable person in the defendant’s

position would have foreseen the harm suffered by the plaintiff as a result of
their actions. Under the foreseeability test, the court asks whether a
reasonable person in the defendant’s position have foreseen that their
conduct could cause harm to someone in the plaintiff’s position.

The foreseeability test is based on the principle of causation in law, which

requires a close causal connection between the defendant’s conduct and the
plaintiff’s harm. The idea is that the defendant should only be held responsible
for the harm that is directly and immediately caused by their wrongful conduct,
and not for the remote or indirect consequences that are beyond their control
or knowledge.

MEASUREMENT OF DAMAGES
In torts, the damages which are awarded by Courts to the plaintiff can be
classified into several heads.

1. Nominal Damages
Nominal damages are those in which even though the plaintiff has suffered a legal
injury at the hands of the defendant, there is no actual suffered by him. These
damages are provided in the cases of Injuria sine damno in which the Court
recognises the violation of the right of the plaintiff but the amount of damages
are so nominal or low because of no actual loss to the plaintiff.
In the case of Constantine v. Imperial London Hotels Ltd., The plaintiff was
a cricketer from West Indies who had gone to the defendant hotel to stay but he
was rejected on the basis of his nationality, therefore, the plaintiff stayed at
another hotel and did not suffer any actual damage. In the case brought by him,
the defendant was held liable because the plaintiff’s legal right was violated
despite no actual injury happening and they had to pay nominal damages of five
guineas.

In the case of Ashby v. White (1703) 92 ER 126, the plaintiff was prevented
from voting by the defendant and the candidate for whom the plaintiff was going
to vote still won. The plaintiff sued the defendant. It was held that even though
no actual damage was suffered by the plaintiff, the defendant was still liable for
preventing him from exercising his legal right to vote and thus nominal damages
were awarded in this case.

2. Contemptuous Damages
In these type of damages, the Court recognises that the right of the plaintiff is
violated but to show that the suit brought by the plaintiff is of such a trivial nature
that it has only wasted the time of the Court, the Court awards a meagre amount
to the plaintiff as damages. This is similar to the nominal damages but the only
difference between the two is that in nominal damages the plaintiff suffers no
actual loss and in contemptuous damages, the plaintiff suffers actual damage but
it is a trivial one in which he does not deserves to be fully compensated.

Illustration: If A’s dog enters B’s house and relieves himself and B accidentally
steps on it and is disgusted and thus, he brings a suit against A, the Court will
rule in B’s favour but because of such a trivial nature of this case the damages
awarded by the Court will be of a meagre amount.

3. Compensatory Damages
Compensatory damages are awarded to help the plaintiff to reach his original
position at which he was before the tort was committed against him. These
damages are not awarded to punish the defendant but to restore the plaintiff to
his previous situation. These damages are very helpful in cases of monetary
losses in which the amount of loss can be easily calculated and therefore that
amount can be ordered to be paid to the plaintiff so that he can replace the
damaged product or goods with such amount.
Illustration: K takes T’s bike and due to his rash driving the bike gets damaged.
Here K can be awarded compensatory damages in which the amount for repairing
the bike will be payable to K by T so that the bike’s condition can be restored
back to its original state.

4. Aggravated Damages
These damages are awarded for the extra harm which is caused to the plaintiff
which cannot be compensated by the compensatory damages and it is given for
factors such as the loss of self-esteem, pain and agony suffered by the plaintiff
etc. which cannot be calculated in monetary terms. These damages are therefore
additional damages which are awarded to the plaintiff other than the damages
awarded for his pecuniary loss.

Illustration: A makes false claims against B as a result of which B’s standing in

the society is greatly affected and he is also ridiculed by people which leads to
him losing his self-confidence and self-esteem. Here Court can award B
aggravated damages for the humiliation and loss of confidence because of his
suffering which is caused by A’s act.

5. Punitive Damages
These damages are also known as exemplary damages and the purpose of these
damages is to punish the defendant and to make an example of him so that others
are deterred from committing the same act as he did. Thus, whenever a Court
feels that the act of the defendant was severely gross, it awards punitive damages
against him to the plaintiff.

Illustration: A company advertises that its pill will help in quick weight loss and
is made up of natural ingredients, as a result, the plaintiff purchases it. But due
to the pills containing certain chemicals, it makes the plaintiff severely ill. Here
the Court can not only allow compensatory damages to the plaintiff but because
of the company’s false claims, it can also award punitive damages so that it does
not repeat the act again.

Calculating Damages
There are some rules which are applied in certain conditions for calculating the
amount of damages in a case.
Damages in case of a reduction of life span
Whenever due to the tort committed by the defendant, the lifespan of the plaintiff
is reduced, the amount of damages which will be awarded to him is calculated
without taking into consideration his social status. The damages are not provided
for the loss of the years of life but are provided for a happy life.

The happiness of life is calculated according to the subjective expectation of a

reasonable man and not of the expectations of the plaintiff or how he thought his
life was going to be. The damages which are awarded to the plaintiff are
moderate.

Illustration: B suffers a severe injury due to the tort of A which has caused his
life span to be reduced to 10 years. Here even though B was a rich person and
enjoyed a good social status, the damages which will be provided to him will be
done with the perspective of the requirements of a reasonable man.

Damages in case of death of a person

In calculating the amount of damages in cases where a person’s death is caused,
two theories are used by the Courts:

• Interest Theory
In Interest theory, the Court determines the loss suffered by the dependant as a
result of the death of the person on whom he depended. After such amount is
determined, a lump sum payment is made which if deposited should provide that
much amount of interest which is equal to the sum which has been determined
by the Court.

Illustration: If A dies by the tort of B leaving behind C and the Court determines
that the monthly loss suffered by C is Rs.5,000. Then the Court will order the
deposit of such amount from which the interest which is earned, is equal to
Rs.5,000.

• Multiplier Theory
In this theory if there is any loss which is likely to occur in the future as a result
of the tort committed by the defendant, that likely loss is multiplied with a
multiplier which indicates the number of years for which such a loss is likely to
continue and the result of such a multiplication is the amount of damages which
is awarded by the court.
Illustration: If A dies due to the tort of B leaving behind C who knows that she
has to pay the mortgage money for their house for the next five years. Here, by
applying the multiplier theory, the amount of mortgage which has to be paid will
be calculated and will be awarded to C.

In United India Insurance Co. Ltd. v. Bindu & Ors, the deceased was riding
a motorcycle when he was severely injured due to colliding with a tractor, which
was driven negligently by its driver. The Court applied the multiple theory and
fixed the multiplier at 13 with 6% interest p.a., for the award of damages.

Is Inflation a factor in determining damages?

While awarding damages, whether inflation should be considered as a relevant
factor or not had been a big question of law and therefore differing views were
provided both in favour and against its consideration.

But in the case of Jaimal Singh v. Jawla Devi, it was held that while
determining the amount of compensation, a judge cannot shut his eyes to the
factor of inflation and the fact that value of rupee is declining.

In Kerala State Electricity Board v. Kamalakshy Amma, the decision in the

above case was upheld and it was observed that inflation should be considered
as a valid factor in determining compensation.

Conclusion
Damages are the monetary compensation which is awarded by the Court to the
plaintiff so that he can be enabled to make up for the loss which he has suffered
because of the tort committed by another person. There are several types of
damages and the calculation of damages depends on various factors such as the
nature and extent of the injury, the relation between the plaintiff and the
defendant etc. The calculation of damages is also different in different cases such
as in the case of death of a person the interest and multiplier theories while for
calculating damages while in case of shortening of life span the social status of
the person is not taken into account.