Advanced Tort Law

Module 1: Introduction to Tort Law

Prof. (Dr.) Arpita Gupta

Professor of Law, Jindal Global Law School
READINGS

• Winfield & Jolowicz, Chapter 1, 2 and 3, 18, 23

• Ratanlal & Dhirajlal, Chapter 1 and 2
• Marc Galanter, India's Tort Deficit. Sketch for a Historical Portrait, in FAULT LINES: TORT
LAW AS A CULTURAL PRACTICE (2009)
• Peter Cane, Mens Rea in Tort Law, Oxford Journal of Legal Studies, Winter, 2000, Vol. 20,
No. 4 (Winter, 2000), pp. 533-556
• Sir Frederick Pollock, Draft of a Code of Civil Wrongs (prepared for the Government of
India), published in The Law of Torts: A Treatise on the Principles of Obligations arising
from Civil Wrongs in the Common Law (India, Fourth Edition (London: Stevens and
Sons, 1895))
• Bernhard A. Koch, The "European Group on Tort Law" and Its "Principles of European
Tort Law", American Journal of Comparative Law, Winter, 2005, Vol. 53, No. 1 (Winter,
2005), pp. 189-205

Prof. Arpita Gupta, Jindal Global Law School 1

 Dispute Resolution System
in India
Traditional Judicial/ Court Tribunals Alternative Dispute
System (quasi judicial institutions) Resolution
(Adjudication through Courts) (ADR)
District Court Administrative Matters Art. 323-A E.g. Arbitration, Conciliation,
(e.g. CAT, NGT) Mediation, Lok Adalats,
High Court
Other Art.323-B
Supreme Court (e.g. Consumer Fora)

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 Laws: Categories
• Common Law vs Civil Law
• Civil Law vs criminal Law
• Public Law vs Private Law
• Substantive vs Procedural

• Tort Law?

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 Nature & Definition: Tort
• General Meaning?
• Specific definition?
- Multiple
- E.g. Winfield’s definition
- Evolutionary view
- Rookes v Barnard (1964)- Tort of Intimidation
- Rylands v Fletcher (1968)- Strict Liability Rule
• Definition of Tort: 3 elements:
1. A civil wrong
2. Not a breach of contract/ trust
3. Unliquidated damages
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 Tort vs Crime
• Kind of wrong? Civil (private wrong) – criminal (public wrong)
• Who files suit? Claimant -- State
• Settlement permitted? Yes -- No
• Primary redressal mechanism? Compensation -- Punishment
• Primary kind of redressal? Monetary compensation-- Imprisonment, fine
• Burden of proof? Balance of probabilities – Beyond reasonable doubt

Notes
: same set of facts can constitute private & public wrong- A digs a ditch on a
public road- private nuisance in Tort + public nuisance in IPC 268
: if same facts lead to both a civil wrong and a criminal wrong- concurrent
proceedings are possible
Prof. Arpita Gupta, Jindal Global Law School 5
 Tort vs Breach of Contract

• Similarities: civil wrong, monetary compensation

• Dissimilarities
• Source of duty? Law -- agreement between the parties
• Content of duty? Fixed by law – Fixed by the parties
• Relationship between Plaintiff & Defendant? Might/might not -- usually known
• Primary objective(s)? Allocation of loss -- enforcement of contractual promises
• Primary remedies available? unliquidated damages – liquidated damages
• Note: If same set of facts consist of a tort & breach of contract, the
claimant has a choice to claim damages under tort or contract (Alternative
remedies, and not concurrent)

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Stages in a Tort Lawsuit

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 Essentials Elements of a Tort Claim
Two essential elements:
I) A wrongful act/ omission
Wrongful Act vs Wrongful Omission
that is legally recognized
+
II) Injuria (legal injury)
Injuria sine damno (legal right violation even without actual damage is
actionable)
vs
Damnum sine injuria (actual damage without legal right violation is not
actionable)
(Gloucester Grammar School Case (1410) Y.B. 11 Hen. IV)
(P. Seetharamayya v G. Mahalakshmamma, AIR 1958 AP 103)
(Bradford Corporation v Pickles [1895] AC 587)- ill motive in tort is irrelevant
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 Defences under tort law

• Defences under tort law can be of two kinds:

1. General (Chapter 26, Winfield & Jolowicz)- generally available against all
torts

2. Specific- specific to each tort

• Multiple defences/ denials can be argued by a defendant

E.g. Padmavathi v. Dugganaika (1974): 2 strangers took lift in a vehicle- wheel
came off- 1 killed, 1 injured
D allowed: 1) volenti non fit injuria; 2) inevitable/unforeseeable accident

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General Defences: different ways of categorizing defences
under Tort law (e.g. Winfield & Jolowicz)
Denials
Meaning: denial of the elements of tort
Plaintiff needs to establish cause of action
Example
- Consent
- voluntary assumption of risk
- Mistake (the denial of mistake is available in
only very few/ exceptional/ rare instances)
- Inevitable/ pure accident
Prof. Arpita Gupta, Jindal Global Law School
Defences
Meaning: rules eliminating liability
Motive is generally irrelevant- public policy
Onus of pleading & proof: rests on Defendant
Example
Defences are further sub-divided into:
1. Justifications:
Justifications are further subdivided into:
Public and Private Justifications
2. Public policy defences
10
 Categorization by Winfield & Jolowicz

General Defences (generic term)

Denials Defences

E.g. Consent E.g. Mistake Justifications Public Policy Defences

E.g. Inevitable
Private Public Eg. Illegality
accident

E.g. voluntary E.g. Self E.g. Defence E.g. Public E.g. Defence
of another
assumption of risk defence of property necessity person

E.g. Prevention E.g. Statutory

of crime Authority
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 REMEDIES
(Winfield: Chapter 23)

Remedies: rules- do not prevent liability from arising- merely affect the
remedies available to a successful claimant. E.g. damages, injunctive relief,
specific restitution of property
CALCULATING/ MEASURING DAMAGES
(Winfield: Chapter 23, Part C; R&D: Chapter 9, Part D)
• Kinds of Damages
- Contemptuous damages
- Nominal damages
- Compensatory Damages: restitutio in integrum
- Exemplary damages: punitive damages
- Aggravated damages
- Gain-based Damages
- Vindicatory damages
 REMEDIES (Chap 23)
Remedies: rules- do not prevent liability from arising- merely affect the
remedies available to a successful claimant
Contributory Negligence
• Winfield & Jolowicz: remedy rather than defense - “does not prevent
liability from arising” + it “merely affects the remedy available to the
claimant”
• contributory negligence (P+D) means that both the plaintiff and defendant
are at fault (versus composite negligence (D1, D2….)- multiple defendants)
• The word “negligence” in contributory negligence is of common English
parlance- no duty of care owed by P to D- merely means failure to take care
of oneself
• contributory negligence is applicable to the conduct of the plaintiff only
Many civil lawsuits/ cases end in?

Settlement

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 Scope, Debates, Functions
• Scope
- expanding ambit

• Debate: Winfield (Tort) vs Salmond (Torts- Pigeon whole theory)

• Aims/ Functions
- Compensation for loss
- Deterrence
- Enforcing rights
• Liability: Fault-based vs strict liability
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 CAPACITY
(Chap 25 Winfield & Jolowicz, Chap III Ratanlal & Dhirajlal)

• Who can sue and be sued under tort law?

- general rule: all persons
- exceptions – variations vis-à-vis “abnormal” members of the community
• Corporations
• Minors- can sue through “next friend”; can be sued; parents not generally liable
- Bebee v. Sales (1966)
• Persons of unsound mind – liable if know the nature of the act (immaterial-
knowledge of rightness or wrongness of the act)
• State:
U.K. : Traditionally, the crown couldn’t be sued (now- yes)
India: can be sued (The Government of India Act, 1858 – art 300(1),Constitution)
- Sovereign Immunity-Act of State- narrowing ambit- unavailable wrt art. 21 violation
- Kasturilal Ralia Ram Jain v. State of UP 1965 (good-bad judgement debate)
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 VICARIOUS LIABILITY
(Chap 21 Winfield & Jolowicz, Chap VIII Ratanlal & Dhirajlal)
• General rule: a person is liable for torts committed by oneself
• Exceptions:
1. Ratification/ authorization of the act
2. in cases of special relationship, such as:
i. Principal-Agent
ii. Partners of a firm
iii. Master-Servant/ Employer-Employee
Hire-Fire Test/ Control Test- not sufficient;
Complex test: 1. Control 2. ownership of the tools 3. chance of profit 4. risk of loss
(Montreal v. Montreal Locomotives 1947);
US vs Silk 1947: a matter of economic reality- degrees of control, opportunities of
profit/loss, investment in facilities, permanency of relations & the skills required
Contract of Service
vs
Independent contractors
Contract for Service
3. Abatement
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 Multiple Tortfeasors
(Chap 22 Winfield & Jolowicz, Chap IX-4 Ratanlal & Dhirajlal)

• Joint Tortfeasors- common design- No proportionate liability for single indivisible injury- joint and
several liability
• Several Tortfeasors- acting independently of each other
- distinct damage- each liable for the damage caused by her/ his act
- indivisible damage- joint and several liability
• Contribution between wrong-doers for damages paid?
Earlier- Not allowed (as per Merryweather v. Nixan 1799- reason: any such claim to contribution
must be based on an implied contract between the tort-feasors, and that such a contract was illegal
as being made with a view to commit an illegal act)
Now: UK: permitted under the Civil Liability (Contribution) Act, 1978
India: not clear- No such act permitting contribution- diverse HC opinions
: unlike UK no provision for contribution among the tortfeasors

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 Relevance of state of mind and conduct in Tort:
Intention, Negligence, Strict Liability, Motive & Malice

Different kinds of torts:

- Some require proof of fault (intentional act of D)- intentional torts
- Some require proof of failure to take adequate care (reasonable person)-
Negligence
- Some imposes liability regardless of fault- strict liability

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 Intention
INTENTION
- No universal definition- intends to perform a specific act
- Deduced from conduct, words etc.
- Under analyzed in tort (as opposite to criminal law)
- Tort Law- Intentional Tort- initial intentional interference with the C/P required, but not
necessarily require the D to intend the specific consequences of that interference
- Different intentional torts entail different definitions of the term intention- E.g. Trespass
to P/C’s property by D’s animals- D is conscious of risk to P/C’s property
- Transferred Intent doctrine- D liable for a tort committed against C that was intended
against B
- Includes reckless state of mind- the wrongdoer is conscious of risk being undertaken or is
reckless wrt circumstances
- reckless & intentional conduct:
Similarity: same state of mind wrt conduct; Dissimilarity: different state of mind wrt
consequences Prof. Arpita Gupta, Jindal Global Law School 20
Contd…
NEGLIGENCE
- Two meanings:
1. TORT of Negligence (3 elements)
2. A type of fault/ conduct- acting, irresponsibly, unreasonably
- Negligence as a fault = acting unreasonably i.e. acting unlike a
“reasonable person”- an abstraction:
UK: “the man on the Clapham Omnibus” (Lord Bowen 1903)
US: “the man who takes the magazines home, and in the
evening pushes the lawnmower in his shirt sleeves” (Greer 1933)
E.g. Vaughan v. Menlove (1837) 132 ER 490 (CP)- care taken by a
prudent person

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Contd…
STRICT LIABILITY
- D liable regardless of fault- C/P not required to prove fault of the D
(Rylands v Fletcher [1868] UKHL 1)

MOTIVE & MALICE

- Motive- underlying reason for committing an act
- General principal- motive in tort law is irrelevant
(Bradford Corporation v Pickles [1895] AC 587)
- Exceptions- sometimes relevant Mixed motive- dominant purpose is
regarded as the motive
- Malice- variously defined- spite, evil motive, acting willfully- generally
irrelevant- exceptions: malicious prosecution, deceit, misfeasance in public
office
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Peter Cane, Mens Rea in Tort Law, Oxford Journal of Legal
Studies, Winter, 2000, Vol. 20, No. 4 pp. 533-556

Abstract-In ethical terms, intention is widely felt to be the strongest basis for
the attribution of personal responsibility for conduct and outcomes. By
contrast, in tort law intention is a much less important ground of liability
than negligence. This article analyses the meaning of intention in tort law
and its relationship to other concepts such as voluntariness, recklessness,
motive, and belief. It also discusses difficulties associated with proving
intention and other mental states, and the idea of a general principle of tort
liability for intention. The key to explaining the relatively minor role of mens
rea in tort law is found to lie in the emphasis tort law gives to the interests of
victims, and to social values, in constructing its concept of responsibility. This
approach also helps to explain the greater importance of mens rea in
criminal law
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Peter Cane…
2. What is Intention?

• Intention and Recklessness

“It is this element of deliberateness in relation to conduct that links intention
and recklessness and leads to their assimilation in tort law”
“Because liability for 'intentional torts' can sometimes be attracted by
recklessness, it is important to map the boundaries of tortious recklessness,
and in particular to map the boundary between recklessness and
negligence”
“Since tortious negligence involves no mental state, the line between
'conscious' recklessness (which entails actual awareness) is clear enough”

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Peter Cane…
3. The Functions and Role of Tortious Intention
(i) The independent function
Because tortious intention involves deliberateness and either aiming to
or conscious indifference to risk, it is a 'stronger' basis for responsibility
than negligence or the mere causing of harm without ‘fault’
(ii) The ancillary function:
to justify the awarding of remedies which would not be available in the
absence of intention. For instance, inflicting economic harm by
negligently making a false statement on which another relies has been
actionable in tort since the decision of the House of Lords in Hedley
Byrne Co. Ltd v Heller & Pa
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Peter Cane…
4. The Relative Unimportance of Tortious Intention
“Intention and recklessness play only a minor role in tort law”
Ans: Other laws, e.g. criminal law: focus is on agent's conduct
“Things are quite different in tort law. Tort litigation is initiated by
victims. Tort remedies (even punitive damages) benefit victims. There
are no inchoate or victimless torts, and attempting a tort is not a tort.
Tort law is as much concerned with the interests of victims as with
tortfeasors”

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History of Tort Law: India
India
• English Common Law origins- implication?
• 1886: Sir Frederick Pollock, DRAFT OF A CIVIL WRONGS BILL (Prepared for the Government
of India)
• A Bill to define and amend certain parts of the Law of Civil Wrongs – Pollock acknowledges
certain departures from the UK law
• British India- laboratory for experimenting with laws

(Key References:
Sir Frederick Pollock, Draft of a Code of Civil Wrongs (prepared for the Government of India),
published in The Law of Torts: A Treatise on the Principles of Obligations arising from Civil Wrongs
in the Common Law (India, Fourth Edition (London: Stevens and Sons, 1895))
Marc Galanter, India's Tort Deficit. Sketch for a Historical Portrait, in FAULT LINES: TORT LAW
AS A CULTURAL PRACTICE (2009))

Prof. Arpita Gupta, Jindal Global Law School 27

Bernhard A. Koch, The "European Group on Tort Law"
and Its "Principles of European Tort Law", American
Journal of Comparative Law, (Winter, 2005)
• the "European Group on Tort Law”
• 20 members

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