Constituents of Tort

The law of tort is an instrument to enforce reasonable behavior and respect the rights and interests
of one another. A protected interest gives rise to a legal right, which in turn gives rise to a
corresponding legal duty. An act, which infringes a legal right, is wrongful act but not every wrongful
act is a tort.

To constitute a tort or civil injury therefore:

There must be a wrongful act or omission.

The wrongful act or omission must give rise to legal damage or actual damage and;

The wrongful act must be of such a nature as to give rise to a legal remedy in the form of an action
for damages.

The wrongful act or omission may however not necessarily cause actual damage to the plaintiff in
order to be actionable. Certain civil wrongs are actionable even though no damage may have been
suffered by the plaintiff.

01. Wrongful Act

An act or omission that prejudicially affect one’s legal right. Such legally violative wrongful act is
called as actus reus. Thus, liability for a tort arises when the wrongful act amounts to either an
infringement of a legal private right or a breach.

An act, which at first, appears to be innocent may become tortuous if it invades the legal right of
another person e.g. the erection in one’s own land which obstructs light to a neighbors’ house.
Liability for a tort arises when the wrongful act amounts to an infringement of a legal right or a
breach.

02. Damage

The sum of money awarded by court to compensate damage is called damages. Damage means the
loss or harm caused or presumed to be suffered by a person as a result of some wrongful act of
another. Legal damage is not the same as actual damage.
The real significance of legal damage is illustrated by two maxims namely:

Injuria sine damno and Damnum sine injuria

Injuria sine damno (Injury without damage)

It means violating of a legal right without causing any harm, loss or damage to the plaintiff. There are
two kinds of torts: firstly those torts which are actionable per se, i.e. actionable without the proof of
any damage or loss. For instance, trespass to land, is actionable even though no damage has been
caused as a result of the trespass.

Secondly, the torts which are actionable only on the proof of some damage caused by an act. For
successful actions the only thing which has to be proved is that the plaintiff’s legal right has been
violated, i.e. there is injuria.

Case Law: Refusal to register a voter was held as and injury per-se even when the favorite candidate
won the election - Ashby Vs. White (1703). This rule is based on the old maxim of law, Ubi jus ibi
remedium, which means that where there is a right, there is a remedy.

Ashby v. White : Plaintiff was confined by returning officer due to which plaintiff was not able to
caste his vote.Though the party in the election that the plaintiff wanted to vote won the
election.Since the right to vote was violated,there is a legal injury to the plaintiff by the defendant.

Hence,defendant was held liable and plaintiff was compensated for the same.

Bhim Singh v. State of Jammu & Kashmir : Bhim Singh(plaintiff) was detained by the police when he
was on his way to attend assembly section for his work.He was not even presented in front of
magistrate within the requisite time.

Hence,here the legal rights of plaintiff are violated,The defendant was held liable and plaintiff was
compensated for the same.

Ashrafilal v. Municipal Corporation Of Agra : In this case,the Ashrafilal’s(plaintiff) name was deleted
and dropped from the voters list by the concerned authorities,consequence of which plaintiff was
not able to exercise his right to vote.Plaintiff sued Defendant.

Defendant was held liable as the plaintiff’s legal right was violated and compensation was granted to
plaintiff.

Marzetti v. Williams : Marzetti(Plaintiff) was holding an account in the bank of defendant.Though

there was sufficient amount money in the plaintiff’s account,but when plaintiff tried to withdraw
some money via self cheque,he was denied without any sufficient reasoning.Plaintiff sued
defendant.

Defendant was held liable,and plaintiff was compensated for the same.

Damnum sine injuria (Damage without injury)

It means “There may be an injury inflicted without any act of injustice.” There is another term like it
that is “damnum absque injuria“, which means damage or harm without an injury in the legal sense.
In other words a loss or injury to someone which does not give that person a right to sue the person
causing the loss.

Case Laws:

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

In the case of Mogul Steamship Co. Vs. Me-Gregory (1892). Certain ship owners combined together.
In order to drive a ship-owner out of trade by offering cheap freight charges to customers who
would deal with them. The plaintiff who was driven out of business sued the ship-owner, for loss
caused to him by their act. The court held that a trader who is ruined by legitimate competition of
his rivals could not get damages in tort.

Glaucester Grammar School Case : The defendant has setup a rival school for
teaching grammar near the plaintiff’s grammar school due to which the plaintiff suffered the loss as
his students started joining defendant’s school.Due to this competition,plaintiff have to even lower
down the fees of his school.

So,Plaintiff sued the defendant to seek compensation,but no compensation was given as there is no
legal injury has happened to plaintiff.

Ushaben v. Bhagya Laxmi Chitra Mandir : Plaintiff sued the defendant for permanent injunction as
movie,”JAI SANTOSHI MAA” was hurting the religious sentiments as Goddess were depicted as
jealous.

No compensation was given as there wasn’t any legal injury to plaintiff.

Robinson v. Kilvert (BROWN PAPER CASE) : There was a two floor building where the defendant
owns the ground floor where as the plaintiff owns the upper floor.Plaintiff use to do some work
related to brown paper(highly flammable) whereas defendant use to do sort of work that produces
heat.One day,due to heat production,plaintiff’s brown paper caught fire and everything got burnt.

No Compensation was given as the heat produced wasn’t extra ordinary.It was plaintiff’s mistake
that he kept the brown paper on the floor even after knowing that there are chances of burning.Also
there was no legal injury faced by plaintiff.

Mogul Steamship Co. v. McGregor’s Crew & Co. : All the steamship companies united and drove the
plaintiff’s company out of the tea trade by reducing their freights due to which plaintiff suffered loss.

No Compensation was given as the other companies are only doing marketing practises and also
there wasn’t any injury to the plaintiff.

Chasemore v. Richards : The defendant sank a well quarter a mile of a mill away from a natural
stream & pumped up water for supply to neighboring town,due to which plaintiff was not getting the
sufficient amount of water as he was getting earlier from the stream.Plaintiff’s mill was a lot
dependent on water and because of shortage of water he suffered loss.He filed a suit against
defendant.

No compensation was given because there was no legal right violated by defendant,i.e,there was no
injury.

03. Remedy – Development of Ubi jus ibi Remedium

The law of torts is said to be a development of the maxim ubi jus ibi remedium (there is no wrong
without a remedy). Whenever the common law gives a right or prohibits an injury, it also gives a
remedy. It is an elementary maxim of equity jurisprudence that there is no wrong without a remedy.

The maxim means only that legal wrong and legal remedy are correlative terms.

A tort is a civil injury, but all civil injuries are not torts. The wrongful act must come under the
category of wrongs for which the remedy is a civil action for damages. The essential remedy for a
tort is an action for damages, but there are other remedies also e.g., injunction, restitution, etc.

Case Law:

In the case of Abbot v. Sullivan, the court held that there is a right to receive a time-barred debt but
there is no remedy to recover it.
Strict liability

In law, strict liability is a standard for liability which may exist in either a criminal or civil context. A
rule specifying strict liability makes a person legally responsible for the damage and loss caused by
his/her acts and omissions regardless of culpability (including fault in criminal law terms, typically
the presence of mens rea). Under strict liability, there is no requirement to prove fault, negligence or
intention. Strict liability is prominent in tort law (especially product liability), corporations law, and
criminal law. For analysis of the pros and cons of strict liability as applied to product liability, the
most important strict liability regime, see product liability.

The earlier stated definition remains half done if the following terms are not emphasized upon:-

Ø Dangerous Thing: According to the above mentioned rule, the liability of escape of a thing from a
person’s land will arise only when the thing or substance collected is a dangerous thing i.e. a thing
which is likely to cause mischief or damage to other people in person or their property on its escape.
In various torts cases filed worldwide, the ones involving the doctrine of strict liability have held
“large body of water, gas, electricity, vibrations, yew trees, sewage, flag-pole, explosives, noxious
fumes, rusty wires, etc. as dangerous things.

Ø Escape: The thing that has caused damage or mischief must ‘escape’ from the area under the
occupation and control of the defendant. This can be better explained by bringing in two examples-

1. Case- Crowhurst vs.Amersham Burial Board, (1878) 4 Ex. D. 5; Cheater vs. Cater, (1908) 1 K.B.
247:-

If the branches of a poisonous tree that is planted on the defendant’s land spreads out to the
neighbouring plaintiff’s land, this amounts to the escape of that dangerous, poisonous thing from
the boundaries or control of the defendant and onto the plaintiff’s land. Now, the issue arises, if the
cattle of the plaintiff nibbles on these leaves, then the defendant will be held liable under the
mentioned rule even when nothing was done intentionally on his part.

2. Case- Read vs. Lyons and Co., (1947) A.C. 156:-

The plaintiff worked as an employee in the defendant’s shell manufacturing company, while she was
on duty within the premises of the company, a shell being manufactured there exploded due to
which the plaintiff suffered injuries. A case was filed against the defendant company but the court
let off the defendant giving the verdict that strict liability is not applicable here as the explosion took
place within the defendant’s premises, the concept of escape of a dangerous thing like the shell
from the boundaries of the defendant is missing here. Also negligence on the part of the defendant
could not be proved.
Ø Non-natural use of land: Water collected on land for domestic purposes does not amount to non-
natural use of land but storing it in huge quantity like that in a reservoir amounts to non-natural use
of the land (Rylands vs. Fletcher). This distinction between natural and non-natural use of land can
be made possible by its adjustment to existing social conditions. Growing of trees is held natural use
of land but if the defendant is found to grow trees of poisonous nature on his land, then it is non-
natural use of the land. If the land has been used naturally yet a conflict has risen between the
defendant and the plaintiff, owing to natural use of land, the court will not hold the defendant liable.

Ø Mischief: To make the defendant liable under the doctrine of strict liability, the plaintiff needs to
prove that the defendant made non-natural use of his land and escape of the dangerous thing
caused mischief/damage to him. The resultant damage needs to be shown by the plaintiff after
successfully proving that unnatural use of the land was done by the defendant.

Case:- In Charing Cross Electric Supply Co. vs. Hydraulic Power Co. (1914) 3 KB 772, the defendants’
duty was to supply water for industrial works but they were unable to keep their mains charged with
the minimum required pressure which led to the bursting of the pipe line at four different places
resulting in heavy damage to the plaintiff which was proved with evidence. The defendants’ were
held liable in spite of no fault of theirs.

Brief Summary: Essentials for a tort to be held under the Doctrine of Strict Liability

a) Non-natural use of land must have taken place.

b) Escape of a dangerous thing from that land on which it was kept must have taken place.

c) The dangerous thing must have caused mischief.

A few instances where this rule is applicable:-

a) Activities involving non-natural use of land.

b) Activities involving dangerous operations such as blasting, mining, etc.

c) Liability arising out of keeping or taming dangerous animals.

d) Liability for dangerous structures e.g. building, ship, rail, etc.

e) Liability for dangerous chattels such as crackers, explosives, petrol, etc.

Inception of this rule: The Strict Liability principle is also called as ‘No Fault Liability’. This is
contradictory to the general principle of negligence in torts where a person can be held liable for
commission of a tort only when the plaintiff can prove negligence on his part and the defendant
himself is unable to disprove it. In the cases that I will now mention, the onus of being negligent can
be ignored. In spite of all due care taken by the defendant, he will invariably be held for the
consequences of the damages caused to any person outside of the boundary of the defendant’s land
by any hazardous thing that he maintained on the same stretch of land i.e. in spite of no intentional
or unintentional fault of his, the defendant can be held liable hence, explaining the term ‘No Fault
Liability’.

This principle was first applied in the House of Lords in respect to the case ‘Rylands vs. Fletcher,
(1868)’.

Rylands vs. Fletcher, 1868: The defendant (Fletcher) an owner of a mill in Answorth with an aim to
improve water supply for his mill employed independent and efficient engineers for the construction
of a reservoir. During their excavation of the ground underneath, they came across some shafts and
passages but chose not to block them. Post construction of the reservoir when they filled it with
water, all the water flowed through the unblocked old shafts and passages to the plaintiff’s (Rylands)
coal mines on the adjoining land and inundated them completely. The engineers kept the defendant
in the dark about the occurrence of these incidents. On a suit filed before the court by the plaintiff
against the defendant, the court though ruled out negligence on the defendant’s part but held him
liable under the rule of Strict Liability. Any amount of carefulness on his part is not going to save him
where his liability falls under the scope of ‘No Fault Liability’

Rule Of Absolute Liability

The rule of absolute liability was evolved in the case of M.C.Mehta v Union of India. This was a very
important landmark judgment that brought in a new rule in the history of the Indian Law. The rule
held that where an enterprise is engaged in a hazardous or inherently dangerous activity and it harm
results to anyone on account of an accident in the operation of such hazardous or inherently
dangerous activity resulting, the enterprise is strictly and absolutely liable to compensate to all those
who are affected by the accident.

Facts: In the city of Delhi, there was severe leakage of oleum gas on the 4th and the 6th of
December, 1985. This took place in one of the units of Shriram Foods and Fertilizers Industries
belonging to the Delhi Cloth Mills Ltd. due to this, an advocate practicing in the Tis Hazari Court had
died and many others were affected by the same. The action was brought through a writ petition by
way of public interest litigation (PIL). In Indian law, public interest litigation means litigation for the
protection of the public interest. It is litigation introduced in a court of law, not by the aggrieved
party but by the court itself or by any other private party. It is not necessary, for the exercise of the
court’s jurisdiction, that the person who is the victim of the violation of his or her right should
personally approach the court. Public interest litigation is the power given to the public by courts
through judicial activism. However, the person filing the petition must prove to the satisfaction of
the court that the petition is being filed for a public interest and not just as a frivolous litigation by a
busy body.[ix]

Issue: The issue raised was a very strong issue. It said that if all these tragedies follow the rule of
strict liability, they will come under the exceptions laid down for Rylands v Fletcher case.

Judgment: The Supreme Court took a very bold decision to evolve a new rule fit for the economic
and social conditions prevailing in India. The rule of absolute liability was then formed in preference
to the rule of strict liability. This rule ignored all the exceptions in the Rylands v Fletcher case.

The rule clearly held that where an enterprise is engaged in a hazardous or inherently dangerous
activity and it harm results to anyone on account of an accident in the operation of such hazardous
or inherently dangerous activity resulting, the enterprise is strictly and absolutely liable to
compensate to all those who are affected by the accident and such liability is not subject to any of
the exceptions which operate vis-à-vis the tortious principle of strict liability under the rule in
Rylands v Fletcher. [x]

ABSOLUTE LIABILITY = STRICT LIABILITY – EXCEPTIONS

The court gave two basic reasons justifying the rule:

Any enterprise carrying on hazardous activities for private profits have the social responsibility to
compensate those suffering from any accident and it should absorb such loss as an item of overhead
expenses.

The enterprise alone has the resources to discover and guard against such hazards and dangers.

This is the clear explanation of the absolute liability or the rule of M.C.Mehta v Union of India. The
court also laid down the measures of compensation to be paid by the enterprise. It said that the
larger and more prosperous the enterprise, the greater must be the amount of compensation
payable by it for the harm caused on account of an accident in the carrying on of the hazardous or
dangerous activity by the enterprise.

The Bhopal Gas Tragedy

The Bhopal Gas Tragedy is one of the most devastating accidents in the history. It was a mass
disaster caused by the leakage of Methyl Isocyanate (MIC) and other toxic gases from a plant set up
by the Union Carbide India Ltd. for the manufacture of pesticides in Bhopal on the night of
December 2, 1984. UCIL is a subsidiary of Union Carbide Corporation (UCC), a multinational company
registered in U.S.A. More than 27 tons of methyl isocyanate and other deadly gases turned Bhopal
into a gas chamber. None of the six safety systems at the plant were functional, and Union Carbide’s
own documents prove the company designed the plant with ‘unproven’ and ‘untested’ technology,
and cut corners on safety and maintenance in order to save money.[xi] The disaster resulted in the
death of at least 3000 persons and there were serious diseases and injuries to many people. Some
people permanently lost their eyes, hearing senses, some suffered from neurological disorders and
scores of other complications.

The Supreme Court laid the rule of absolute liability in preference to the strict liability. The defence
of the UCC on the grounds of sabotage was rejected and the principle laid by the Supreme Court in
the M.C. Mehta v Union of India was followed.

The rule clearly held that where an enterprise is engaged in a hazardous or inherently dangerous
activity and it harm results to anyone on account of an accident in the operation of such hazardous
or inherently dangerous activity resulting, the enterprise is strictly and absolutely liable to
compensate to all those who are affected by the accident and such liability is not subject to any of
the exceptions which operate vis-à-vis the tortious principle of strict liability under the rule in
Rylands v Fletcher.

It was thus hoped that the victims would be able to get relief without further much delay. To see to
it that the victims of the handling of hazardous substances can get expeditious relief through
insurance, The Public Liability Insurance Act, 1991 was passed.

The Public Liability Insurance Act, 1991

This act has the major aim of providing immediate relief to the persons affected by accident
occurring while handling any hazardous substances for matters connected with the incident. It has
the goal of providing public liability insurance. This act gained the assent of the President on the
22nd of January, 1991. This act says that every owner who works with hazardous substances and
hires employees to control those dangerous things, shall have policies and insurances where he will
be insured against liability to give relief in case of death or injury to a person or damage to property
arising from the accident caused while carrying on the hazardous activities. In respect of already
established units, insurance policies had to be taken as soon as possible and the rule gave the
owners the time of one year to get into the insurance contracts. This liability was based on the
principle of ‘no fault liability’.
Hazardous substance means any substance or preparation which by reason of its chemical or physic-
chemical properties or handling, is liable to cause harm to human beings, other living creatures,
plants, micro-organisms, property or the environment. The term ‘handling’ in relation to any
hazardous substance means the manufacture, processing, treatment, package, storage,
transportation by vehicle, use, collection, destruction, sovereign, offering for sales, transfer of the
like of such hazardous substance. This is the clause in the Section 2(c) of the Public Liability Insurance
Act, 1991. Therefore, this is the clear expression of the rule of the absolute liability laid down in
M.C. Mehta v Union of India.

Vicarious Liability

Vicarious liability is where one person is held liable for the torts of another, even though that person
did not commit the act itself. It is therefore a form of strict liability (in that the defendant is not at
fault). The most common form of vicarious liability is when employers are held liable for the torts of
their employees that are committed during the course of employment. The issue of vicarious liability
can be seen to be unjust in that someone who is not at fault can be held liable.

1. In the case of Mohamud v WM Morrison Supermarkets a petrol station customer, Mr Mohamud,

found himself on the receiving end of physical assault and racist language from a Morrison’s
employee, Mr Khan. Mr Khan pursued Mr Mohamud across the petrol station forecourt, punching
him and kicking him to the ground. Mr Khan ignored the instructions of his supervisor who tried to
stop him.

Mr Mohamud brought a claim against Morrison's for the injuries he suffered as a result of the
assault by Mr Khan. There was no question in this case of there being an employment relationship
between Morrison's and Mr Khan, however the issue arose as to whether there was a sufficiently
close connection between what Mr Khan was employed by Morrison's to do, and his actions against
Mr Mohamud, to render Morrison's vicariously liable.

At first instance, it was held that Morrison's was not vicariously liable. The trial judge found that the
sufficiently close connection test was not met. Mr Mohamud appealed to the Court of Appeal who
dismissed his appeal. It was found that whilst Mr Khan’s duties involved interaction with customers,
there was not a clear possibility of confrontation, nor did his duties place him in a situation where an
outbreak of violence was likely. Therefore, Morrison's could not be held vicariously liable.

Mr Mohamud’s case was heard by the Supreme Court where it was argued on his behalf (Mr
Mohamud had by then passed away from an unrelated illness) that a broader test should be applied
i.e. “whether a reasonable observer would consider the employee to be acting in the capacity of a
representative of the employer” at the time of committing the unlawful act. The Supreme Court
rejected the new test, but allowed the appeal on the basis that Mr Khan’s acts were sufficiently
connected to his employment for it to be just that Morrisons should be vicariously liable for his
actions.

The Supreme Court confirmed that the test was whether the wrongful acts were so closely
connected with employment that it would be just to hold the employer liable. The attack had
happened on Morrison’s premises and Mr Khan had ordered Mr Mohamud never to return to his
employer’s premises. It was held that Mr Khan was not acting in a personal capacity - he had not
"metaphorically taken off his uniform from the moment he stepped from behind the counter."

2. The case of Cox v Ministry of Justice concerned a prisoner who, in the course of carrying out
compulsory work in the prison kitchen, dropped a sack of rice onto the catering manager, resulting
in a back injury. The issue to be decided was whether the Ministry of Justice (MoJ) was liable for the
prisoner’s negligent actions. Whilst the county court found that the MoJ was not vicariously liable
for the prisoner’s actions, because the relationship between the prisoner and the MoJ was not akin
to the relationship between an employer and employee, the catering manager successfully appealed
to the Court of Appeal. The MoJ then appealed to the Supreme Court, arguing that the relationship
between the prison service and prisoners was fundamentally different from that of employer and
employee.

The Supreme Court found that it didn’t matter that the prison was not carrying on activities of a
commercial nature, that the prison work was compulsory, nor that prisoners received incentive
payments below the level of a commercial wage. It was sufficient that the prisoner was carrying out
activities assigned to him by the prison service as an integral part of its operation and for its benefit,
even though the benefit did not take the form of profit. The prison service, by assigning those
activities to him, created a risk of the prisoner committing the negligent acts.

The Supreme Court dismissed the MoJ’s appeal and held that they were vicariously liable for the
prisoner’s negligent actions. The court stressed that vicarious liability cannot be avoided by technical
arguments about the employment status of the individual who committed the acts.

Sovereign immunity is a justification for wrongs committed by the State or its representatives,
seemingly based on grounds of public policy. Thus, even when all the elements of an actionable
claim are presented, liability can be avoided by giving this justification.

The doctrine of sovereign immunity is based on the Common Law principle borrowed from the
British Jurisprudence that the King commits no wrong and that he cannot be guilty of personal
negligence or misconduct, and as such cannot be responsible for the negligence or misconduct of his
servants. Another aspect of this doctrine was that it was an attribute of sovereignty that a State
cannot be sued in its own courts without its consent. [2]

This doctrine held sway in Indian courts since the mid nineteenth century until recently. When a
genuine claim for damages is brought to the courts, and it is refuted by an ancient doctrine
seemingly having no relevance, there is bound to be resentment and demands for review. The Indian
courts, in order to not let genuine claims be defeated, kept narrowing the scope of sovereign
functions, so that the victims would receive damages.[3] The Law Commission of India too, in its very
first report, recommended the abolition of this outdated doctrine. But for various reasons, the draft
bill for the abolition of this doctrine was never passed, and thus it was left to the courts to decide on
the compatibility of this doctrine in accordance with the Constitution of India.[4]

Before we proceed to discuss the extent of sovereign immunity as it has been carved out over the
years, it is necessary to take a look at Article 300 of the Constitution of India which spells out the
liability of the Union or State in acts of the Government.

Doctrine of sovereign immunity

Sovereign immunity is a justification for wrongs committed by the State or its representatives,
seemingly based on grounds of public policy. Thus, even when all the elements of an actionable
claim are presented, liability can be avoided by giving this justification.

The doctrine of sovereign immunity is based on the Common Law principle borrowed from the
British Jurisprudence that the King commits no wrong and that he cannot be guilty of personal
negligence or misconduct, and as such cannot be responsible for the negligence or misconduct of his
servants. Another aspect of this doctrine was that it was an attribute of sovereignty that a State
cannot be sued in its own courts without its consent. [2]

This doctrine held sway in Indian courts since the mid nineteenth century until recently. When a
genuine claim for damages is brought to the courts, and it is refuted by an ancient doctrine
seemingly having no relevance, there is bound to be resentment and demands for review. The Indian
courts, in order to not let genuine claims be defeated, kept narrowing the scope of sovereign
functions, so that the victims would receive damages.[3] The Law Commission of India too, in its very
first report, recommended the abolition of this outdated doctrine. But for various reasons, the draft
bill for the abolition of this doctrine was never passed, and thus it was left to the courts to decide on
the compatibility of this doctrine in accordance with the Constitution of India.[4]
Before we proceed to discuss the extent of sovereign immunity as it has been carved out over the
years, it is necessary to take a look at Article 300 of the Constitution of India which spells out the
liability of the Union or State in acts of the Government.