TORTS

there are some principles in society that we abide by and these principles has come through certain process. The
torts have come through different principles which are interconnected.
If we look at law we are essentially looking at Three pillars:-
Legal orders
Authoritative decisions
Manner of judicial adjudication

2nd article - Nature of torts

Moral justification
Nozics theory

 Focuses on Libertarian theory

 Lockean rights draw out boundaries around any individual
 Certain types of violations cannot be compensated ; eg –in case of bodily injury no amount of
compensation can bring back the person to the earlier position.
 Nozics says that there is some kind of societal fear which can act as a basis of distinction. But this is
somewhat flawed as it is difficult to ascertain what individual fear and to what extent. In this manner no
compensation would be appropriate.
 The author says that what should fall under the torts can be only those things which we give explicit
consent to and others under crime.

TORTS CONTRACTS
Consent is not there Consent is basis of a contract
Damages are unliquadated Damages are liquidated
Mental element is not necessary Mental element is necessary
Privity is not there; right in rem Privity is a part; right in personam
  Ubi Remedium Ibi Jus- Ubi Jus Ibi Remedium
The meaning of the word jus is legal authority so the meaning of ubi jus ibi remedium is where there
is a right there is a remedy. The right and remedy are conjoined terms. If someone has the right
regarding something then obviously there exists some sort of remedy in case of the violation of such
right.

Ubi Remedium Ibi Jus- where there is a remedy there is a right

What happens when there is a novel minority claim

Because it can be that there is some minority claim in the mind of the minorities but which are not considered by
the majority. So they are making a claim which they think is right according to them.
In this case the minority may claim a right but the majority will tend to reject it
Ubi Jus Ibi Remedium- where there is a right there will be a remedy
Here we consider a set of rights are existing.
Ashby v white
Public officer refused to allow to vote; right violated
1. Why ashby was stopped? Was there any justification and if yes, can this justification be taken to not give
ashby a remdy? If no remedy than what is use of given a right
2. Ubi remedium ibi jus
If we introduce some variables in the situation the matrix would change. For example there are rights of
aggrieved person but there are also the right of transgressor.
We should not subscribe to the literal meaning of these maxims. There are whole range of factors needed to be
understand these maxims. These maxims are rhetorical.
Strict liability- exceptions exist
That’s rule of law; cause of action- defence, both contemporaneous; law cannot be biased against any party
For the purpose of convenience there might be some ….

Constituents of Tort
To constitute a tort:
1 There must be a wrongful act committed by a person
2. The wrongful act must give rise to legal damage
3. The wrongful act must be of such a nature as to give rise to a legal remedy

- Wrongful Act
The act complained of should, under the circumstances, be legally wrongful as regards the party complaining that
is, it must prejudicially affect him in some legal right.
Merely harming his interest is not enough.
Protected interests  Legal Rights Corresponding Legal Duties

Private Rights: Rights which belong to a particular person to the exclusion of the world at large:
o Right of reputation
o Right of bodily safety and freedom
o Right of property

*Legal damage = injury

Human Interests are numerous but all of them are not protected by law; the ones protected here referred as
protected interests, the violation of which results in legal injury

Public Rights: Rights which belong in common to members of the State generally
For a private individual to claim legal damage through this route would require a special, peculiar and substantial
damage in addition to injury to public
Damage: The harm or loss suffered or presumed to be suffered by a person as a result of some wrongful
act of another
Damages: The sum of money awarded by the Court to compensate 'damage is called damages

 Damnum Sine Injuria: Actual/substantial loss without infringement of legal right → No action would lie
 Mere loss in money/money's worth does not of itself constitute a tort
 Where an act is lawfully done without negligence and in the exercise of a legal right, such damage as
comes to another thereby is damage without injury
 Example?
Competition between schools
From the point of view of presumption of damage, rights are classified into
(1) absolute :- When an absolute right is violated the law conclusively presumes damage although the person
wronged may have suffered no pecuniary loss whatsoever. The damage so presumed is called legal damage.
Violation of an absolute right is, therefore, actionable per se, ie, without proof of any damage.
(2) qualified:- In case of qualified rights, there is no presumption of legal damage and the violation of such rights
is actionable only on proof of actual or special damage. In other words, in case of an absolute right, the injury or
wrong, ie, the tortious action, is complete the moment the right is violated irrespective of whether it is
accompanied by any actual damage, whereas in case of a qualified right, the injury or wrong is not complete
unless the violation of the right results in actual or special damage.
the leading case of Ashby v White, is illustrative of violation of an absolute right
Refusal to register vote.—In the leading case of Ashby v White, 96. the defendant, a returning officer,
wrongfully refused to register a duly tendered vote of the plaintiff, a legally qualified voter, at a parliamentary
election and the candidate for whom the vote was tendered was elected, and no loss was suffered by the rejection
of the vote, nevertheless it was held that an action lay on account of infringement of a legal right of the plaintiff.
In this case the returning officer had acted maliciously.
Where, therefore, a returning officer, without any malice or any improper motive, in exercising his judgment,
honestly refused to receive the vote of a person entitled to vote at an election, it was held that no action lay.-
Tozer v Child
If a person entitled to be included in the electoral roll is wrongfully omitted from such roll so as to be deprived of
his right to vote he suffers a legal wrong for which an action lies – Municipal board of agra v. Asharfi Lal
An action for damages will also lie if a citizen is deprived of his right to vote by a law which is unconstitutional
by reason of offending his right to equality. – Nixon v Herndon

General Principle of Liability

2 views prevailing on the subject of existence of some broad unifying principle of all tortious liability:
These 2 views are set out in the question Salmond asked:
"Does the law of torts consist of a fundamental principle that it is wrongful to cause harm to other persons in the
absence of some specific ground of justification/excuse, or does it consist of a number of specific rules
prohibiting certain kinds of harmful activity and leaving all the residue outside the sphere of legal responsibility"
Salmond preferred the second alternative (Pigeon-hole Theory)
Winfield accepted the first alternative
"Taking of reasonable care to avoid act/omission which can be reasonably foreseen as likely to injure one's
neighbor"
Criticism of pigeon-hole
If we compartmentalise the torts under some heads then there’s a possibility that a novel act might not find its
place under the existing head

General Elements
Act/Omission
To constitute a tort, there must be a wrongful act
The word 'act' is used both in positive and negative sense i.e. act and omission
The failure to do something in doing an act, is not an omission but a bad way of performing
the act
For eg A lawyer gives opinion without taking into account the change in law be way of a Supreme Court
decision
Omission is the failure to do the act as a whole
Law does not impose liability for mere omissions
An omission incurs liability when there is a duty to act
Q. If you see a person drowning and you decide to not rescue this person, can you be held liable?
Q. What if the person drowning is your child?
Q. In the first question, what if you engage in rescue but leave the person worse off?

Distinction between Act & Omission

Tortuous liability – intrusion into someone right
  So in regard of Q.1 there arises no tortuous liability if I choose not to rescue the person.
 Not all omission are actionable, but in case of an act actions depend of surrounding factors - To enter
into a personal space of some stranger is voluntary decision; but if one choose to engage, manner of that
engagement determines either the tortuous liability upon one or the damages one can claim; but in a
situation due to some act[unreasonable/foolhardy] of the rescuer the person who is in danger is left to a
worse condition then there can be a claim of damages from the rescuer but it depends on circumstances
 But in a situation there is a relationship like in Q.2 there is duty to save that person and omission
might result in tortuous act;
 Relationship affects the duty of care

Under the MVA :-

VOLUNTARY / INVOLUNTARY ACTS

 Voluntary and Involuntary acts
Depending on circumstances, an act can be involuntary
A involuntary act may be sudden - reason of some nervous condition - not in the prior knowledge of the
transgressor
Only a voluntary act, determinable so, can be considered actionable
Mental Element
In order to fasten liability, there has to be some mental element - malice, intention, negligence
or motive to make it actionable
Malice means spite/ill-will
An act is intentional as to its consequences, if the person concerned has the knowledge that they would
result
Motive is the ulterior object or purpose of doing an act

Involuntary act – where the act is not willed; no control on the act; an act, the consequence of which are known
to you and you did not chose to do it but it happended
Voluntary act- there is willingness; control on the act; driven through consciousness ; an act, the consequence of
which are known to you and you still chose to do it
If we introduce some variables then the act can be justified and liability reduced
For any Tortuous act there is Mental element
Negligence-mental element?
Any reasonable man can foresee the consequences but still engaged in the act that’s negligence; there is mental
element as person thinks of the consequences

Malfeasance: Applies for the commission of an unlawful act

Misfeasance : Applicable to improper performance of some lawful act
Non-feasance : Applies to the omission to perform such act when there is an obligation to perform it
According to Salmond, fault is the basis of all tortious liability –
Sphere of no-fault liability
 MUDULE – 2

R v. Secretary of State for Home Department, (2001) 3 All ER 433

 George Anthony Daly: Applicant → Convict

 Correspondence with Solicitor: Stored in his cell
 Standard Cell Searching Policy: Security Manual  Rules issued under Prison Act, 1952 → Rules
effective from 1995
 Prisoners were to be excluded during cell search: To prevent intimidation and prisoners acquiring detailed
knowledge of search techniques
 Rules provided that officers were to examine but not read any legal communication  To ensure that
there was nothing which would endanger prison security
HELD

 a person sentenced to a custodial order retained, along with the rights of access to a court and to legal
advice, the right to communicate confidentially with a legal adviser under the seal of legal
professional privilege
 such rights could only be curtailed by clear and express words and then only to the extent reasonably
necessary to meet the ends which justified the curtailment
 a policy of requiring a prisoner's absence whenever privileged legal correspondence held by him In his
cells was examined, by giving rise to the possibility that an officer might improperly read it and to the
inhibiting effect such possibility would have on the prisoner's willingness to communicate freely with his
legal adviser amounted to an infringement of the prisoner’s right to legal professional privilege
 the reasons advanced for that infringement, namely the need to maintain security, order and discipline in
prisons and to prevent crime, might justify the exclusion during examination of privileged
correspondence of an individual prisoner who was attempting to intimidate or disrupt a search, or whose
past conduct had shown that he was likely to do so, but not a policy of routinely excluding all prisoners,
whether intimidatory or not
 the policy amounted to a degree of intrusion Into the privileged correspondence of prisoners greater than
was justified by the objectives it was intended to serve

*communication between a lawyer and client is an absolute privileged communication and cannot be pulled in
court also; the only exception to this is when the act has not been committed eg if client tells that he’s going to
rob a bank or murder a person then this would not be privilege
While conviction curtails the liberty of a convict, but subject to that curtailment, Courts remain ultimate
custodians of his rights and liberties in the same manner as they are in respect of other citizens
Procedure established by law
State has a higher responsibility in respect of persons in its custody to ensure that they are not deprived of their
right to life

 any curtailment has to be according to the procedure established by law having reasonable justification

2. Alien Enemy
A person of enemy nationality or person residing in or carrying on business in enemy territory, whatever his
nationality An enemy alien cannot sue in his own right

CPC
S.83. When aliens may sue-Alien enemies residing in India with the permission of the Central Government, and
alien friends, may sue in any Court otherwise competent to try the suit, as if they were citizens of India, but alien
enemies residing in India without such permission, or residing in a foreign country. shall not sue in any such
Court.
Explanation. -Every person residing in a foreign country, the Government of which is at war with India and
carrying on business in that country without a licence in that behalf granted by the Central Government, shall, for
the purpose of this section, be deemed to be an alien enemy residing in a foreign country.
SN Banerjee v. Bhupati Charan AIR 1976 Cal 267:
Where suit is brought by a person residing in a foreign country, which was not an enemy country at that time, the
maintainability of the suit is not affected by the fact that subsequently, that country became an enemy country
The proper order is to suspend the trial during the period of the plaintiff's disqualification and not to dismiss it

3. Husband and Wife

The common law relating to married women suffered from serious anomalies
The wife could not sue for any tort committed by a 3rd person unless her husband joined as plaintiff with
her
She could also not be sued for a tort committed by her unless the husband was made the defendant
Further, she could not sue her husband and the husband could not sue her for any tort committed by one
against the other
Now: A married woman can sue for any tort committed by a 3d person and can also be sued without husband
being made liable or a party
Husband and wife can sue each other
Marriage under personal law does not affect capacity of party
No anomaly in the common law could survive Article 14

Common law position in case of Husband-Wife nature was arbitrary from today’s angle. Husband was seen as a
guardian of the wife and husband had to be attached in any suit against the wife. Also wife could not sue husband
as the norms were that the guardian cannot do any wrong against the one who it was to guard.
 certain objective lines are necessary
 looking every case subjectively would not produce beneficial results
 in civil case our aim is to compensating the victim to the extent possible only where compensation is not
possible we should go towards other areas
 reasonableness of the minor needs to be taken into consideration
 rights of minor is there but rights of public is also to be taken into consideration ; here comes the
responsibility of parents or supervision of parents
  objective consideration of age can go both ways; if it can be proved that act and intention of child can be
connected then the age can be immaterial
 there is a responsibility of the parents; it is certain that children is capable of mischief therefore caution
have to be taken
 there is great social interest in protecting minors
 if it is proved that there is no fault of parents in the tort of child then there will be no remedy

lunatic

 if no such guardian is there its state’s responsibility

 clinical medical condition has to be there; threshold of illness will impact the liability of the lunatic
 social interest is protecting the lunatic person
 if no fault of lunatic and no guardian then no remedy will lie

insolvent

 properties of insolvent are held in the hands of receiver ; and any claim against him are routed through the
receiver ; insolvent is not bankrupt ; receiver is appointed by a bank
 illustration:-
1. suppose insolvent is not having any monetary assets, how will he provide compensation?
2. if the property of insolvent is damaged then ?
3. if the insolvent is injured then he can be compensated but the amount he gets will have a break-up
like for hospital expenses, maintenance of persons dependant on him

note: insolvency and bankruptcy are different concepts

insolvency is when an individual or corporation itself declares that the liabilities of the company or individual are
greater than the assets
but when the individual or corporation or the creditor goes to the court and ask for a certificate that the liabilities
are more than the assets its bankruptcy
bankruptcy starts where insolvency ends
#beggars
Beggars don’t have any property and hence are not declared as insolvent. So an act committed by a beggar can
result in tort but there will no remedy. So is it a license for people who are falling under this category to commit
tort?

 Beggar can be held liable for a tort

 But when it comes to compensation its an ineffective remedy

Parents Forum for Meaningful Education v. UoI