Law of Torts:

General
principles

Bhumika Nanda
Assistant Professor
School of Law, Bennett University
Purpose of law of torts – instrument for making people adhere to standards of reasonable behaviour and
respect the rights and interest of one another

- Tort law has the regulatory function

- Sets rules for how we are supposed to treat each other and to provide redress for people who are
injured when these rules are broken

Law determines – what interest need protection and maintain a balance when there is a conflict of protected
interests.

Protected interest give rise to a legal right which give rise to a legal duty

Hohfeldian’s Jural correlatives – legal rights v/s legal duties (not moral duty)
Contract
Contract founded on Consent
Necessitates Privity
Violation of a right in personam
Right available only against a determined
person or body and in which the community at
large has no concern
Nature of Duty – Duty is fixed by the will and
consent of the parties and it is owned to a
definite person or persons
Motive is immaterial
Remedy – primarily liquidated damages
Aim – is the idea of enforcing promises
Damages in contract put the claimant in the
position he would have been in had the contract would have been in had the tort not been
been performed
Tort
Tort is inflicted without consent or against
Consent
No Privity is needed
Violation of a right in rem
Right vested in some determined person, either
personally or as a member of the community
and available against the world at large
Nature of Duty – duty is imposed by the law
and is owned to the community at large
Motive is often taken into consideration – esp.
for ascertaining amount of damages
Remedy – primarily unliquidated damages
Aim – prevention or compensation of harms
Damages in tort put him in the position he
committed
Concurrent Liability in Tort and Contract

Contractual and Tortious duties may co-exist on the same facts

Three party situation

D may incur liability in tort to C from a matter or transaction is respect of which D had a contract with B
on the basis of manufacturer’s common law liability in tort to the ultimate consumer (Donoghue v. Stevenson)

Two-party situation

Where it is alleged that the defendant owes concurrent duties in contract and tort to the same person.

Given that the tortious duty is imposed by the general law, and the contractual duty is attributable to the will of the
parties, thus the claimant may be entitled to take advantage of the remedy which is most advantageous to him.
Concurrent liability arises between carrier and passenger, doctor and patient, solicitor and client and
employer and employee

White v. John Warwick & Co.

White v. John Warwick & Co. [1953] 2 All ER 1021

In this case the Defendants (Warwick) supplied a bicycle on hire to the Plaintiff (White), who was a newsvendor,
intending that he and his servants should ride it. The bicycle was defective, and, in consequence of the defect,
the newsvendor was thrown off and injured. The newsvendor now claims damages for breach of contract or
negligence. The Defendants claim to be protected by the following clauses -

Clause 1:
"The Defendants agree to let, and the Hirer agrees to hire, Carrier Cycles Nos. 13409 for the term of three years
from the date hereof (and thereafter from year to year) at the weekly rent of 5s. each payable Quarterly in
advance at the Defendants' above address, the first payment being due on delivery of the machines."
Clause 2:
"In consideration of such sum the Defendants agree to maintain the machines in working order and condition
(punctures excepted) and to supply Spare Carriers as soon as possible when the Hirer's machines are being
repaired without any charge beyond the agreed amount as above ...”
Clause 11:
"Nothing in this Agreement shall render the Defendants liable for any personal injuries to the riders of the
machines hired nor for any third-party claims, nor loss of any goods, belonging to the Hirer, in the machines."
Summary

Appeal case - Three Judge Bench

Lord Justice Singleton –

The fact that there is a contractual relationship between the parties which may give rise to an action for breach of contract
– does not exclude the co-existence of a right of action founded on negligence as between the same parties,
independently of the contract, though arising out of the relationship in fact bought about by the contract.

The primary object of the clause – is to relieve the defendant from liability for breach of contract or for breach of
warranty. Unless there be clear words which would also exempt from liability for negligence – the clause ought not to be
construed as giving absolution to the defendant if negligence is proved against them

Lord Justice Denning –

If a person desires to exempt himself from a liability which the common law imposes – he can only do so by a contract
freely and deliberately entered into by the injured party in words that are clear beyond the possibility of misunderstanding.
If there are two possible heads of liability on the defendant, one for negligence and the other a strict liability – an
exemption clause will be construed, so far as possible, as exempting the defendant only from his strict liability and not as
relieving him from his liability for negligence.
- The claim of negligence in this case – is founded in tort and not on contract.

- Used the analogy of newsvendor’s servant been riding the bicycle and had been injured – if the servant could show
that the defendant had negligently sent out a defective machine for immediate use – he would have a cause of action
in negligence.

- That shows that the defendant owed a duty of care to the servant – A fortiori they owed a like duty to the
newsvendor himself. In either case, a breach of that duty is a tort which can be established without relying on any
contract at all.

Lord Justice Morris –

- Clause 11 does not provide an exemption if negligence is alleged and proved.

- In construing an exemption clause certain general rules may be applied – first, the defendant is not exempted from
liability for the negligence of his servants unless adequate words are used; second – the liability of the defendant
apart from the exempting words must be ascertained – then the particular clause in question must be considered and
if only liability of the party pleading the exemption is a liability for negligence – the clause will more readily operate
to exempt him.
Tort and Unjust Enrichment/quasi-contract

Unjust Enrichment – where one person has been unjustly enriched at the expense of another.

Illustration:

A mistakenly deposits Rs. 10,000 in B’s bank account thinking that he was depositing the money in X’s
account. B is under a duty to return the money to A.

Duty is primarily fixed by law nevertheless the liability is distinct from liability in tort because the liability does
not depend on any breach of duty. B does not owe A any duty not to accept money from A.

[liability – is to repay the money which has been paid under a mistake of fact. – the only duty on him is
remedial or secondary duty to refund the money to A but in tort as also in contract – there is a primary duty
the breach of which give rise to the remedial duty to pay compensation]

Also, the damages recoverable are liquidated damages and not unliquidated damages
Tort and Equitable Wrongs

Wrongs that are redressable in equity include breach of trust and breach of fiduciary duty.

Breach of trust – where a trustee misapplies trust property.

Breach of fiduciary duty – example where a solicitor who is acting for a client in respect of a commercial opportunity
seizes that opportunity for himself.

Different from tort on the ground that the tort law is concerned with the correction of losses whereas the latter aimed at
the diversion of wrongful gains.

Trust like contracts are normally created by an agreement with a trustee.

The liability of a trustee – whether express or implied – is more like the liability of someone who has been unjustly
enriched at another’s expense than the liability of a tortfeasor.

The action for breach of trust is limited in scope applying only to trustees not to people generally.

As in contract the consequence of liability is not compensation but restitution.

However, the fact that equitable wrongs depend upon a breach of duty owed to the claimant has led some authors to
argue that they should be regarded as torts.
Tort Crime
Infringement or privation of the private or civil Crime is a breach of public rights and duties
rights belonging to individuals which affects the whole community
Action is brought by the injured party Proceedings are conducted in the name of state
Wrongdoer/tortfeasor has to compensate the Wrongdoer/accused is punished by the state in
injured party the interest of society
Reward of compensation in criminal proceedings
is ancillary
Purpose of punishment is to recompense Purpose of punishment is deterrence
Similarity
Duty is in-rem and duty is imposed by law
In some cases – same set of circumstances may Example - Assault, nuisance, defamation,
constitute a tort as well as may amount to a crime
 Definition of Tort

Winfield & Jolowicz

Breach of Duty
Primarily fixed by law
towards persons generally
Breach is redressable by an action for unliquidated damages

- Not indicating what conduct is and what is not sufficient to involve a person in tortious liability
Salmond and Huston’s definition

Civil Wrong – remedy is a common law action

for unliquidated damages
which is not exclusively the breach of contract or breach of a trust or other
merely equitable obligations
(e.g. – unjust enrichment, bailment, breach of fiduciary duty)

- Does not indicate what is wrong and what kinds of wrongs are covered but merely distinguishing tort
from other branches of law
F. Pollock –

Every tort is an act or omission

which is related in one of the following ways to harm
suffered by a determined person

Act – without lawful justification or excuses – intended to cause harm and does cause the harm complained of.

Act – Act in itself – contrary to law or an omission of specific legal duty – which causes harm – not
intended by the person so acting or omitting

Act – violating absolute right (especially right of possession or property) – treated as wrongful without
regards to the actor’s intent or knowledge

Act – Act or omission – causing harm which the person so acting or omitting to act – did not intend to cause
– but might or should with due diligence have foreseen and prevented

It may – in special cases - consists merely in not avoiding or preventing harm which the party was bound,
absolutely within limits to avoid or prevent.
In Indian Context - Refer to:

The Limitation Act, 1963

Section 2 (m) - ) “tort" means a civil wrong which is not exclusively the breach of a contract or the breach of
a trust

Section 22

Schedule, Part VII (Periods of Limitations)

Sources:

Cases:
1. White v. John Warwick & Co. [1953] 2 All ER 1021

Books:
1. Ratanlal & Dhirajlal, The Law of Torts, Lexis Nexis, 2016 (28th Edition.)
2. W.V.H. Rogers, Winfield and Jolowicz on Tort, Sweet & Maxwell, 2010 (18th Edition.)
3. Catherine Elliott and Frances Quinn, Tort Law, (Pearson; 10 editions, 2015)

Websites:
1. www.manupatra.com
2. www. westlaw.com