KES’ SHRI JAYANTILAL H.

PATEL LAW COLLEGE

TITLE OF THE PROJECT

General Conditions creating a liability of Torts

SUBJECT: Torts

A project submitted in partial fulfilment of the requirements for

The First Semester of the L.L.B Course

BY:

Krishna Nikhil Dubal

DIVISION - A

ROLL NO. - 33

SUBMITTED TO:

Ms. Namrata Shetty

DATE: 28th Nov, 2023

 Introduction

The word Tort is derived from the French word ‘tortum’ which means wrong or a
twisted act. The liability in torts is civil and it arises due to breach of duty which leads to
infringement of the legal right of the other person. There are certain conditions which must
exist before a person is held liable in tort.

General conditions on which tortious liability is determined

 Wrongful Act

 A wrongful act is any act which is tortious (it is an infringement upon another
person’s legal rights). We all have not only legal rights but also corresponding legal
duties. A wrongful act must be committed for a tort to take place. It can happen in two
ways -
a. Commission of the act
b. Omission
 Tortious liability thus arises by both - an act done or an admission to do an act e.g., by
doing an act which is prohibited, or by violating the legal rights of another or by
violating one’s own duties. In simple words, any tortious act is either commission or
omission or a combination of both of these.
 To determine tortious liability, it must be proved that the act done by the defendant
was a wrongful act.
 An act is wrongful if it invades any of the three private rights of a person – the right to
a) his reputation b) his property and c) his right of bodily safety and freedom.
 Public rights are those rights which belong to the members of the State in general.
Every person of the public has a right to walk on the road, to take water from a river,
and so on. When a public right is violated no action in tort shall be taken unless the
plaintiff suffers a special and substantial damage in addition to the damage suffered
by him in common to the public in general.
 Violation of moral, social and religious duty does not come under the category of
torts. The act of defendant becomes wrongful only when there is violation of legal

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 rights of another (plaintiff). If the act done by a person does not violate the legal
rights of another person, then it is not a tort.
 In Tort the plaintiff has to prove that his legal right has been violated by the act of
defendant.

 Legal Damage

 Damage is the direct result of the defendant’s wrongful act

 There is difference in terms Damage and Damages. Damage is the harm caused to a
person by the wrongful act of the defendant. Damages is the compensation given to
the plaintiff by the defendant for the damage caused by defendant’s wrongful act.
 Main object of Law of Torts is to protect a person from the harm caused to the
property, body and prestige of a person
 An action for damages is only for the infringement of individual’s legal rights by
another individual
 There may be wrong caused to a person but if actual legal damage is not caused to
him, then no action in tort will be maintainable
 If there is no violation of legal rights then no action in tort (even if a person suffered
any amount of pecuniary loss)
 If there is violation of legal right but the person had not suffered any pecuniary loss,
even then he will be liable for tort
 The real meaning of legal damage can be illustrated by two maxims: Injuria sine
damnum and Damnum sine injuria.
 Both the maxims are divided into 3 parts –
Damnum/Damno means substantial harm, loss or damage with respect to the money,
health, etc.
Injuria means an infringement of a right given by the law to the plaintiff.
Sine means without.

 Injuria Sine Damnum

 It means violation of legal rights of a person without causing any damage to
the plaintiff so if there is violation of legal rights of a person by another person

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 and the plaintiff suffered no damage then also, he will be liable to file a suit
against the defendant as his legal rights has been violated by the defendant.
 Violation of legal rights is actionable whether it has caused any real harm or
loss to the plaintiff or had not caused any real harm to the plaintiff and the
defendant is liable to pay damages to the plaintiff
 Case law of Kaliappa v. Vayapuri illustrates this principle. The plaintiff, a
beedi maker, sued the defendant, his brother-in-law, for copying his
trademarks. The defendant claimed he was a partner of the plaintiff and had a
right to use the trade marks. The courts found that the defendant was lying and
had violated the plaintiff’s legal right to the trade marks. The courts awarded
the plaintiff declaration, injunction, and damages as the plaintiff was able to
establish the violation of its legal right to the trade marks, without having to
prove any actual loss or damage caused by the defendant’s infringement.

 Damnum Sine Injuria

 It means harm or damage caused to a person without violation of legal right so
it means that when a damage is suffered by a person without breach of
violation of his legal rights then such claim for damage is not valid in court of
law. Even if the act of the person (defendant’s) is intentional or deliberate, but
if there is no violation of legal rights then there will be no remedy awarded.
 Damnum sine injuria is not actionable if some harm is caused to another while
exercising his legal rights, then no action will lie against him.
 Case law of Vishnu Datt v. Board of High School illustrates this principle. In
this case the plaintiff was an intermediate student who was wrongfully
detained by the principal of his college on the ground of shortage of
attendance. He challenged the action of the authorities by means of a regular
suit, which was decreed in his favour. He was allowed to appear in the
examination, but his result was declared after one year. He claimed that he
suffered a loss of one year in his studies and filed another suit for
compensation against the board, the state, the district inspector of schools, the
principal and the college. The suit was dismissed by both the courts below on
the ground that it was not maintainable. The courts held that the plaintiff had
no cause of action, as there was no violation of any of his legal rights. The
mere fact that he was injured by the act of the authorities did not entitle him to

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 claim damages, as the authorities were exercising their legal right to regulate
the attendance of the students. The plaintiff’s loss was damnum sine injuria,
which does not give rise to an action in tort.

 Legal Remedy

 Legal remedy is one of the essential conditions for creating a liability of tort. It means
that when a person suffers a legal wrong or injury due to the act or omission of
another, they have the right to claim compensation or relief from the wrongdoer.
 This principle is based on the maxim ubi jus ibi remedium which translates to “where
there is a right, there is a remedy” or there is no wrong without a remedy.
 When someone’s rights are infringed by another, they can seek justice (legal justice)
by suing for unliquidated damages. This is the main reason why such acts are
considered as torts, because they give rise to a claim for damages. However, some
unlawful acts can only be punished by criminal law, and they are not torts. It can be
said that whenever the right of a person is violated then the person whose right has
been violated has a remedy or liable for damages against the person who has violated
it.
 Some scenarios where this principle applies are as below:
 If a person is injured by the negligence of another, they can sue for damages in
tort law. This is an example of a legal remedy for a civil wrong.
 If a person’s constitutional rights are violated by the government, they can
seek judicial review or an injunction to stop the violation. This is an example
of a legal remedy for a public wrong.
 If a person’s contract is breached by another party, they can claim specific
performance or rescission of the contract. This is an example of a legal remedy
for a contractual wrong.
 Case law of C. Veera Thevar v. The Secretary to Government illustrates this principle.
The petitioner, who was a jail inmate, succumbed to police torture while in custody.
His brother approached the court with a writ petition, demanding compensation for
the breach of the petitioner’s basic right to live. The court found that the police were
clearly negligent and cruel in causing the petitioner’s death. The court granted ₹ 1

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 lakh as compensation to the petitioner’s brother, using the principle of ubi jus ibi
remedium.
 However, there is no remedy for oppressive legislation. There is no legal remedy for
every moral or political wrong. There is no remedy for a solemn promise made
without consideration. E.g. – A requests B to advance to him a loan of ₹1,000 which
the former needed for his marriage expenses. B agrees to advance the loan but fails/ A
has no remedy.
Torts including Mental Element

One has to consider the mental elements in Torts when the general conditions of
Liability in Torts are met. They play a crucial role in deciding the liability and the type of
remedy for the wrongful act. Mental elements mean the mindset or intention of the
person who causes a civil harm or injury to another. They can arise from intentional
action or blameworthy negligence where the person anticipates the outcomes but does
not want them directly. In criminal law, a guilty mind or mens rea is a key element for
holding a person liable for a crime. The question here is to what extent mental element is
a necessary element for establishing the tortious liability. In doing any wrongful act,
generally, there are 3 elements of the human mind that are examined: Intention, motive
and malice.

 Intention

Meaning
 Intention is when the defendant does the act on purpose, knowing and wanting the
outcome. In simple words, intention means being aware of what one is doing and
what will happen, and wishing for it to happen.
 The wrong-doer cannot escape liability in tort by saying that he did not “mean” to
cause harm, if harm has occurred because of something he did or failed to do which is
directly the result of his conduct.
 It is assumed that every person has the intention for the normal and usual outcomes of
his actions and this assumption is not disproved by evidence that he did not consider
the outcomes or that he wished or thought that they would not happen.

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 The defendant will be liable for natural or necessary outcomes of his action,
regardless of whether he actually thought of them or not.
 Therefore, the law determines the liability from the wish and infers the intention of a
person from his behaviour.

Categories
 Based on Intention, a tort can be divided into two broad categories: Intentional Tort
and Unintentional Tort
 An intentional tort is when the wrongdoer wants to violate the right of someone else
and wishes to hurt them. Some examples of intentional tort are Battery, Assault, False
Imprisonment, Trespass and Defamation.
 Case law of Roshan Beevi v. Joint Secretary to the Government of Tamil Nadu and
Other illustrates intentional tort. the petitioner, a Sri Lankan national, was detained in
a special camp for more than five years without any valid order or reason. She filed a
writ petition seeking her release and compensation for the illegal detention. The
Supreme Court held that the detention of the petitioner was arbitrary and unlawful,
and violated her fundamental right to life and liberty. The court ordered the immediate
release of the petitioner and awarded her ₹1,00,000 as compensation, applying the
principle of ubi jus ibi remedium.
 An unintentional tort is a type of accident that causes injury, property damage or
financial loss by negligence or recklessness. It requires the defendant to have failed to
exercise the same degree of care as a reasonable person in the same situation.
Unintentional tort cannot be considered as state of mind, they are more of conduct.
 Case law of Donoghue v. Stevenson illustrates unintentional tort. The case involved a
woman who drank a ginger beer that contained a decomposed snail and suffered
illness. She sued the manufacturer of the drink, claiming that he owed her a duty of
care to ensure the product was safe for consumption. The judgement hold was that the
manufacturer had a duty of care not only to the direct purchasers of the product, but
also to the ultimate consumers who might be affected by it.
 Comparison - To prove an intentional tort, the plaintiff must show that the defendant
acted with intent and caused actual damage. The defendant’s motive is usually
irrelevant, unless it is required by a specific tort, such as defamation or malicious

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 prosecution. The defendant’s intention is not a factor in determining liability under
unintentional tort, unless the defendant acted with gross negligence or recklessness,
which shows a disregard for the safety of others. Therefore, intention is more relevant
in intentional torts than in unintentional torts, as it is the main element that
distinguishes a deliberate wrong from a careless mistake.

 Motive and Malice

Motive
 Motive is the mental state of a person that drives them to perform an action. It usually
means the purpose or cause of doing something. It relates to satisfaction or benefits
the wrongdoer desires.
 Motive is the ulterior objective or purpose of doing an act. As per Indian law, motive
is more relevant with regard to crimes.
 When in doubt, the motive isn’t relevant to decide an individual’s liability in Law of
Torts. A legal wrong does not become right simply because the motive is good.
Likewise, a lawful act does not become wrongful merely because of an evil motive.
 However, motive is an essential element in some rare cases of torts, such as malicious
prosecution, malicious abuse of process, and injurious falsehood. Motive is also
relevant in the torts of defamation, conspiracy and nuisance.

Malice
 When an act is done with ill-will, spite or hatred it is called malice in ordinary sense.
Here, the plaintiff has to prove that the defendant has a motive other than bringing the
plaintiff to justice such as personal spite, ill will or harassment. Thus, it is also called
termed as express malice or “Malice in fact”.
 Case of Vishnu Basudeo v. T.H.S Pearse [AIR 1949 NAG 364] illustrates express
malice. The case involved a dispute between two neighbours over the use of a
common passage. The plaintiff alleged that the defendant had obstructed the passage
and caused nuisance to the plaintiff. The defendant claimed that he had a right to use
the passage and that his motive was to protect his property from trespassers. The court
held that the legality of the act was the main criterion to determine the liability in tort,
and that the motive or malice of the defendant was immaterial. The court also

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 observed that the defendant had not caused any substantial or unreasonable
interference with the plaintiff’s enjoyment of the passage, and that the plaintiff had
failed to prove any damage or injury. Therefore, the court dismissed the plaintiff’s
suit.
 When any wrongful act is done intentionally without reasonable or probable cause or
an action is determined by an improper motive it is called malice in legal sense. Here,
the plaintiff does not have to prove the defendant’s motive or purpose, as long as the
defendant’s act was unlawful and caused harm to the plaintiff. Thus, it is also termed
as implied malice or “Malice in law”.
 In cases of defamation, malicious prosecution, nuisance, malicious conspiracy, and
injurious falsehood, malice is relevant for determining the liability in tort law.
 Case of Stockley v. Hornidge (1837) illustrates malice in law which was a case of
malicious prosecution where Stockley (Lady Paget’s agent), sued the defendants,
Hornidge and Carter, for falsely accusing him of stealing an earring from the
defendant’s sister-in-law, Lady Paget but they had no evidence or reason to do so.
They also had a personal motive to harm Stockley. The court found that the
defendants acted with malice and without reasonable and probable cause, and awarded
the plaintiff 500 pounds as damages.

 Difference between Motive and Intention

 A person’s motive is the hidden cause or the impetus that drives them to act or refrain
from acting, whereas intention is the purposeful and conscious choice to do something
that is unlawful.
 While the intention is the expressly defined purpose of the crime, the motive is hidden
or implied purpose.
 Motive is not relevant in tort law, except for torts like defamation or malicious
prosecution that need it. The liability and the remedy for the tortious act depend on
the intention.
 Proving a person’s intention, which is important for criminal liability, requires solid
evidence. But proving motive is not necessary, as it is not a primary element for
culpability.

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  The tools and the circumstances that resulted in the crime can show a person’s
intention. However, the motive is the reason that motivates a person to do or avoid
doing something in a certain manner.
 To prove a criminal offence, intention is the first step, but motive is not. Yet, motive
matters when the crime is committed, as it confirms the evidence.

 Comparative Analysis of Mental Element in Torts and Crime

Mental element is crucial in crime, but no so much in tort. The case laws can
further explain this –
 Ravule Hariprasada Rao v State [1951 AIR 204] case was about the criminal liability
of the licensee of two petrol filling stations for the acts of his employees who supplied
petrol without coupons, violating the Motor Spirit Rationing Order, 1941, and the
Defence of India Rules, 1939. The Supreme Court of India held that the licensee was
not liable for the offences that required mens rea (guilty mind), but was liable for the
offence that imposed a duty to endorse the vehicle details on the coupons. The court
followed the principle that mens rea is a necessary element of a crime, unless the law
clearly rules it out.
 Whereas in case of Wilkinson v. Downton, the defendant told the plaintiff a false
story that her husband had a serious accident and broke his legs, as a joke which
caused the tort of intentional infliction of emotional distress to the plaintiff. The
plaintiff suffered nervous shock. The defendant claimed he meant no harm and only
wanted to make a joke. However, the court refused his appeal and made him liable,
stating that intention is not important in tort.

Thus, the applicability of mental element is different in both Torts and crime due to
reasons like –

 The mind is part of every crime’s definition, either clearly or by implication. So, if
there is no proof of a guilty mind for any alleged crime, then that crime is not done;
or, likewise, if a crime is well defined, only what meets that definition is that crime.
 The objective of crime is to punish the wrongdoer, whereas the objective of torts is to
compensate the injured party for the infringement of their right.

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 Conclusion

Tort law is designed to ensure that people behave reasonably and respect each
other’s rights and interests. It does this by safeguarding interests and allowing a
person whose legal interest is harmed to get compensation from the person who
harmed it for the damage they caused. While there are 3 constituents (wrongful act,
legal damage and legal remedy) on which tortious liability is determined, there are
various classifications of the mental element in torts, like intentional or unintentional
torts, motive, and malice, which also have sub-categories.

The mental element in crime is mens rea (guilty mind). The tort is a civil
wrong where the mind is less relevant, but in crime, the mind and the act are required
for a crime. The application needs to be different because the maximum punishment
for a crime is the death penalty, but for a tort it is compensating the damages in
money. If someone is imprisoned it qualifies as a crime. Therefore, for a crime, it is
essential to know if the person had a wrongful intention or not, because his life is at
stake.

Reference –
1. The Law of Torts by Ratanlal and Dhirajlal
2. The Law of Torts by Prof. H.D.Pithawalla
3. Law of Torts by J.N. Pandey
4. Damnum Sine Injuria-Case Comment (legalserviceindia.com)
5. Injuria sine Damnum - www.deepakmiglani.com

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