Law of Torts

According to Salmond, tort is a civil wrong for which the remedy is a common law action
for unliquidated damages and which is not exclusively the breach of a contract or
the breach of a trust or other merely equitable obligation.
Civil Wrong: Infringement/violation of a right (entitlement of something which is due to
you). If someone wrongfully abstains you from the entitlement of your rights then it is
considered as a civil wrong.
Legal Rights are the most recognized rights. It includes various rights such as: -
1. Rights available under the Criminal Justice System (the delivery of justice to
those who have been accused of committing crimes. It is a system that is directly
involved in apprehending, prosecuting, defending, sentencing and punishing those
who are suspected or convicted of criminal offences. The criminal justice system is a
series of government agencies and institutions. Goals include the rehabilitation of
offenders, preventing other crimes, and moral support for victims. The primary
institutions of the criminal justice system are the police, prosecution and defence
lawyers, the courts and prisons).
2. Human Rights - Human rights are the basic rights and freedoms that belong to every
person in the world, from birth until death. They apply regardless of where you are
from, what you believe or how you choose to live your life.
3. Constitutional Rights - A constitutional right is a supreme right guaranteed by our
Constitution. In case of any contradiction with Constitutional Rights, that law will be
declared null and void. These rights aren't applicable to everyone unlike
Fundamental Right.
The only remedy available to the victim in case of a civil wrong is unliquidated (which is
not ascertainable) damages (sufferance of some nature).
There is some certainty in case of liquidated damages. They can be determined.
Emotions and feelings vary from person to person. Ascertaining emotions in terms of
damages is very difficult.
Injury can be both in physical and legal terms.
Difference between Contracts and Torts: -

Basis Contracts Torts

Meaning It is defined in Section 2(h) It’s not defined anywhere
of the Indian Contract Act, rather comes from the
1872. judgements of cases.
Codification It is a codified law. It is not a codified law.
Consent Free consent of the parties No consent is present.
is present.
Procedure Proper procedure is there. No proper procedure is
there.
Privity Privity of parties is present No privity of parties is
in case of contracts. present.
 Rights Rights in personam is Rights in rem or Jus in rem
present (gives the person – Every person has rights
rights against one person in rem. This is right
or party to the contract) available to him or her
against the entire world. It
protects a person’s
property from the entire
world. This is why we call
such a right as a negative
right.
Parties Plurality of parties is there. Parties cannot be
determined.
Status of Minors Usually, minors are not Minors are definitely liable
liable for entering into a for the torts.
contract as it is void ab
initio.

Elements of Torts: -
1. Breach of duty/violation of right
2. Legal Injury (other than physical injuries)
3. Damages (only unliquidated damages)
a. Foreseeability - In order to recover damages, the claimant must also prove that
the injury or damage was reasonably foreseeable. If the damage was not
reasonably foreseeable, the defendant is not held responsible and the damage is
said to be too remote (hence the issue is sometimes referred to as remoteness).
Usually, whether the damage was foreseeable will be obvious. On occasion, the
courts have used the test of foreseeability to limit the consequences for which the
defendant is made responsible.
Claims for damages are limited to the loss which the non-performing party
foresaw or could reasonably have foreseen at the time of the conclusion of the
contract as being the likely result of its non-performance.
b. Proximity - Proximity simply means that the parties must be 'sufficiently close'
so that it is 'reasonably foreseeable' that one party's negligence would cause loss
or damage to the other.
c. Remoteness - Remoteness of damage relates to the requirement that the
damage must be of a foreseeable type. In negligence claims, once the claimant
has established that the defendant owes them a duty of care and is in breach of
that duty which has caused damage, they must also demonstrate that the damage
was not too remote.
If, at the time the contract was entered into, the parties ought reasonably to have
been able to foresee that the loss would be likely to occur, then the damage is not
too remote.
d. Foresightedness - an act or the power of foreseeing
Case law on remedies for breach of contract.
1. Hadley vs Baxendale: This case is foundation for modern law of damages. H
(Plaintiff) operated a mill, which they were forced to shut down when the crank shaft
of their steam engine broke. The shaft was sent to defendant for repair, who delayed
the delivery which led to mill being closed longer than expected. Plaintiff sued for
damages. Court held that defendants had no way of knowing that their breach would
cause a longer shutdown of mill, resulting in loss of profits. Plaintiff never
 communicated the special circumstances to defendants, nor did defendants know of
the special circumstances so they're liable only for nominal damages.
 Contributory Negligence also plays an important role in ascertaining the damages. In
this case it is not necessary that the injured party has knowledge of the harm.
 Volenti Non Fit Injuria – Where the consent of the injured party is available. The
sufferer/injured party has the knowledge of the harm.
Strict liability and absolute liability function under the ‘no-fault liability’ principle, which
says that if a person/enterprise brings any hazardous/dangerous substance of non-natural
use in its premises and if that substance escapes and does any mischief, then whatever loss
the other party suffers that person/enterprise shall be made liable for it.
Difference Between Strict Liability and Absolute Liability

 In strict liability, the escape of a dangerous thing is necessary, whereas, in absolute

liability, an enterprise can be made responsible even without an escape.
 Certain exceptions are available to a person in strict liability, whereas no defences are
available in absolute liability.
 As in strict liability, the defendant has a chance to escape the liability after causing
the damage and injury whereas under absolute liability this is not the case as the
defendant is held absolutely liable for his acts. This means that even if both the rules
come up for giving punishments to the wrongdoer who has caused injury and by
dealing with hazardous substance without proper care and caution but they would
differ in cases of providing relaxation.
 As in strict liability, there are some defences which are available to the wrong-doer
but in of absolute liability, there are no defences available and given to the defendant.
It was even declared by the courts that absolute liability could even be upheld in case
of single death and there is no need for any mass destruction or pollution done to the
environment.
 By analysing the need to modify the 19th century rule of strict liability the apex court
in M.C Mehta vs Union of India stated that “Moreover that the principle which was
established in Ryland vs Fletcher’s case cannot be applied in the modern world
because the rule was laid down in the old world as compared to the one laid down in
the modern world which is period of industrial revolution and this principle is two
century’s old which can’t be adopted without the modifications being made into it.
The main aim is to limit the scope of the rule and bring it at the same level as the
modern theory.
Remoteness includes two essentials: -
1. Foreseeability
2. Principal of directness (Extent of nearness or Proximity)
A foreseeable risk is when a reasonable person in a given situation should know that a
specific harm might occur as a result of their actions. For example, if a person buys
fireworks, handles them incorrectly and burns their finger, this is a foreseeable risk. In
negligence lawsuits, a defendant might respond to the plaintiff’s allegations with this
affirmative defence. This is because a defendant is not liable for a plaintiff’s injury if the risks
of the plaintiff’s actions were foreseeable. If, however, a person buys fireworks, handles them
correctly, and is injured due to the manufacturer’s improper assembly of the firework, this is
not considered a foreseeable risk and thus that person might recover damages.
Foreseeability counts: -
 1. Business risks: Every party has to perform his part of promise within the time
specified by the other party or in reasonable time in case there’s no time specified.
2. Usual Course of Business: The reasonable course of business that helps in
determining the damages.
Injunction: An injunction is a legal and equitable remedy in the form of a special court
order that compels a party to do or refrain from specific acts. It is not merely a stay order. It
is much more than that.
Injunctions: When the court compels the other party from doing certain acts as well as
other things such as: -
a. Prohibits the party from doing a wrongful act
b. Initiate the status to your position
There are two major principles in case of torts: -
1. Injuria sine damnum - Infringement of the legal right without causing any harm
to the plaintiff. A leading case on Injuria sine damnum is of Ashby V. White in
which an election officer restrained a person from exercising his voting rights. So
here, a legal injury can be seen without any physical harm to the plaintiff. It is totally
actionable in a court of law.
 Bhim Singh v. State of J&K – The petitioner, Bhim Singh was deprived of his
legal rights. He was illegally arrested and detained, therefore preventing him from
attending the assembly session. It can clearly be seen that there is an infringement of
legal rights of the person without causing physical damages to him.
Some additional cases on Injuria sine Damnum: -

 Municipal court of Agra V. Asharfi Lal - the plaintiff (Asharfi Lal) was entitled
to be entered as an elector upon the electoral roll. His name was wrongfully omitted
from the electoral roll and he was deprived of his right to vote.
 Marzetti V. Williams Bank - The plaintiff’s account contained enough money,
but when the plaintiff tried to withdraw some money through self-cheque, he was not
allowed to do the same without sufficient reasoning from the bank officials for their
act. If a banker inappropriately bounces a cheque without any reasonable ground,
then it is also considered as a tort. It is because of the fact that if due to the
carelessness of the clerk a cheque bounces w/o any fault of the party then the
reputation or goodwill is affected. Law of tort arises as there is a legal injury present
in this case.

2. Damnum sine injuria - Damages without injury or damages in which there is no

infringement of legal right. Since there is no infringement of legal right so no cause of
action arises in the cases of damnum sine injuria. A leading case on this is
Gloucester Grammar School Case - The defendant was a school teacher in a
school named Gloucester Grammar School. The defendant for some reason decided
to quit his job as a teacher and he decided to open up a new school just adjacent to his
previous employer’s school i.e.; in the vicinity of Gloucester Grammar School. The
petitioner i.e.; the owner of the Gloucester Grammar School decided to bring a suit
for recovery of damages against the defendant alleging that the above-mentioned act
of opening up a new school in the vicinity of his existing school caused him financial
losses and that he should be compensated for the damages caused. The court held
that the defendant (a teacher who opened a new rival school) couldn't be liable to
 compensate any damage to the plaintiff i.e.; Gloucester Grammar school for the
monetary losses suffered by him and no suit could be filed.
Some additional cases on Damnum sine injuria are as follows: -

 Moghul Steam V. McGregor Gow & Ship Company: The plaintiffs were
independent shipowners who sent their ships to the cargo port to obtain cargo.
An association (the defendants), also in the business of owning cargo ships, sent
more ships down to the port and reduced their freights so low that the plaintiffs
were unable to make a profit. They further threatened to dismiss any agents who
loaded the plaintiff’s ships. The plaintiff brought action alleging a conspiracy to
injury and requested damages.
The defendants had acted in an effort to protect their own profits and trade which
was considered to be a lawful objective. No unlawful acts had taken place to
warrant any wrongdoing, so therefore the plaintiffs had no cause of action. To
prove that a conspiracy constituting an indictable offence occurred, a “matter
contrary to law” would have to be shown to have occurred. Lord Halsbury found it
impossible to suggest that there had been any malicious intention to injure rival
traders, except in the sense that they intended their competitors to withdraw
from trade. The defendant’s actions were therefore considered to be actions taken
to support their own business interests. Further, unlawful acts would have to
involve obstruction, violence, interference or molestation to meet the definition.
None of those occurred. The appeal was upheld and no cause of action was
available for the plaintiffs.
 Dickson and Ors. V. Reuter’s Telegram Co. Ltd. - The defendants, a
telegram company, through the negligence of their servants, delivered to the
plaintiffs a message which was not intended for them. The plaintiffs, who
reasonably supposed that the message came from their agents and was intended
for them, acted upon it and thereby incurred a loss.
Held, affirming the decision of the Common Pleas Division, that the plaintiffs
could not maintain any action against the defendants upon the ground of their
negligence, or of an implied representation by them that the message was sent by
the plaintiffs' agents.

 Tort and crime have a difference in gravity of the matter.

 In torts, basic rights are violated but in crime there is a violation of law or it can be said
to be in contrary to the law and has a heinous effect on the society.
 Criminal law, the body of law that defines criminal offenses, regulates the
apprehension, charging, and trial of suspected persons, and fixes penalties and modes
of treatment applicable to convicted offenders.
 The parties in criminal cases are as follows: -

Degree of offence Party A Party B

1° Complainant Respondent
2° Complainant Accused
3° State Accused

Differentiation between Law of Torts and Crime: -

Basis of Difference Torts Crime

Law of tort is a civil wrong The intentional commission
under which common law of an act usually deemed
 remedy is for unliquidated socially harmful or
Definition damages which is other than dangerous and specifically
breach of contract and defined, prohibited, and
breach of trust. punishable under criminal
law.
There is no procedure as We deal systematically
Procedure such rather we refer to the under the criminal justice
judgement of higher courts. system.
We usually award damages It is based on the deterrent
to the suffering party. There theory. Punishment is
Damages are certain situations where provided to the wrongdoer.
things apart from damages Exception: 357(A)1 of
are provided. E.g.; Cr.P.C.
Injunctions

Restorative Justice System – It is applicable where the offender is not habitual. It is

committed out of fury. It is a sort of crimino-victim justice system. Criminal justice system
only focusses on the rights of the victim whereas, Crimino-victim justice system focusses on
both the victim as well as the accused.
The 4 R’s of Restorative Justice System are: -
 Repair
 Restore
 Restitution (restoring to a former condition)
 Reconcile (restore friendly relations between)
Intention: An essential ingredient is Malice (dishonest intention or improper motive)
Unlawful is a broader concept. It not only covers illegal acts but also unethical and immoral
acts.
Malicious intention definitely increases the liability of the defendant.
Malicious prosecution: Malicious prosecution is an abuse of the process of the court by
wrongfully setting the law in motion on a criminal charge. In order to succeed the plaintiff
must prove that there was a prosecution without any just and reasonable cause, initiated by
malice and the case was decided in the plaintiff's favour. It is necessary to prove that
damages were incurred by the plaintiff as a result of the prosecution. The burden of proof
rests on him. He has to prove the existence of malice. Malice may be proved by previously
stained relations, unreasonable and improper conduct like advertising the charge or getting
up false evidence.
Though mere carelessness is not the per se proof of malice, unreasonable conduct like haste,
recklessness or failure to make enquiries would be some evidence. Malicious prosecution is
the malicious institution of unsuccessful criminal or bankruptcy or liquidation proceedings
against another without reasonable or probable cause. This tort balances competing
principles, namely freedom that every person should have in bringing criminals to justice
and the need for restraining false accusations against innocent persons. Malicious
prosecution is an effort to disturb the proper functioning of the judicial machinery.
Adversarial System: - Where two parties face each other in a battle ground and puts
forward their arguments. He, who has the most relevant way of presenting his evidence wins

1
https://devgan.in/crpc/section/357A/
the case. If it is proved that the party has malicious intention then the liability of the
defender increases.
Malicious intention may also include: -

 Nuisance
 Conspiracy
 Wrongful injuries/Deceitful injuries
 Defamation
 Trespass
Some cases on malicious intention are as follows: -

 Bradford Corporation V. Pickles - The court stated that no use of the

property would be held unlawful if it is promoted by legal actions even
though the intent behind them was malicious and illegal.
 Allen V. Flood - Flood and Walter was a shipwright (ship builder)
employed on a ship, liable to be discharged at any time. Fellow workers
objected to their employment as they had worked for a rival employer. Allen
was a trade union representative for the other employees on the ship and
approached the employers, telling them that if they did not discharge Flood
and Walter, the other employees would strike. The employers consequently
discharged Flood and Walter and refused to employ them again, where they
otherwise would. Flood and Walter brought action for maliciously inducing a
breach of contract.
The decision was reversed, finding that Allen had not violated any legal rights of
Flood and Walter. There was no legal right for them to be employed by employer and
Allen had not carried out an unlawful act and had not used any unlawful means, in
procuring the employee’s dismissal. Allen was found to have made a representation
to the employers of what would happen if they continued to employee Flood and
Walter. He relied the events of what he believed would happen and the employers
believed him. This was not considered to be an obstruction or disturbance of any
right: it was not the procurement of the violation of any right. Allen’s conduct was not
actionable, however malicious or bad his motive might be. The employees were not
entitled to damages and no interference requiring remedy was found to exist.

 Volenti non fit injuria: - No injury is done to one who consents. If there is an injury
with consent, then there are no legal implications. If harm is done voluntarily then we
cannot claim damages for it. Where the consent of the injured party is available. Here,
the plaintiff is the wrongdoer himself. It can include the following: -
 Inevitable accidents
 Act of God – e.g.; earthquake, tsunami, flood, etc.
Inevitable accidents can be both man-made and due to natural forces. Its concept is broader
than that of Act of God. In inevitable accidents the effects can be minimized to some extent.

 Private defence
 Mistake/Erroneous belief of fact or of law.
Mistake of fact has an excuse but mistake of law has no excuse in the eyes of law.
An attempt to deceit which does deceive is not a fraud. Fraud is a punishable offence as per
Company Law Amendment, 2013.
Exception: Section 427 (Corporate fraud) According to this even attempt to deceit is
considered to be fraud. Minimum imprisonment: 6 months and can even extend up to 10
years at the discretion of the judge.
 Damages are equal to the amount of fraud.
 Certain acts which cause slight harm.
 Necessity
 Statutory Authority
Government is immune from these damages until it goes out of the normal course of action
and does something which isn’t prescribed to it.

There are 3 steps that helps us in the identification of consent: -

1. Perception
Knowledge
2. Appreciation
Express
3. Acceptance
Knowledge + Acceptance = Consent
Implied

Express consent – e.g.; Getting admitted in a hospital for operation.

Implied consent – e.g.; Spectator in a cricket match.
Case laws on Volenti non fit injuria: -
1. Hall V. Brookland Auto Racing Club: Plaintiff was a spectator in a motor race
event. This is an example of implied consent.
2. Woolridge V. Summer: House of Lords made a distinction between duty to care
and duty of skill. If plaintiff is consenting voluntarily to be a spectator, then it is his
duty to care rather than duty of skill.
3. Murray V. Harringay Arena Ltd.: Plaintiff was a spectator at an ice-hockey
match. He was struck over the eye by the puck. Volenti non fit injuria is present in
this case.
4. Cleghorn V. Oldham: Plaintiff was a spectator in a golf match. VNFI present.
5. Murphy V. Steeplechase Amusement Co.: Amusement Park case. VNFI
present.
6. Padmavati V. Dugganaika: The plaintiffs had asked for a lift in the jeep of the
defendants and while travelling in it one of the screws of the wheel of the jeep fell out,
as a result, the jeep crashed and it caused the death of one of the plaintiffs. In the
case, the Court held that the defence of volenti non fit injuria will apply and thus the
defendants were not liable because by sitting in the jeep the plaintiffs had assumed
the risk of being injured in an accident.
Exceptions to VNFI: -
Even if consent is present, the defendant cannot get compensation for damages.
1. Consent
Unlawful
 Illegal – e.g.; Drug Trafficking, Contract Killer
 Immoral
  Unethical
 Consent against public policy
Not free
The defendant cannot plea for
VNFI if consent is not free
 R V. Donovan: House of Lords held that “No one can lawfully consent to his own
death”.
e.g.; Fighting with naked swords.
2. Breach of Statutory Duty
 Wheeler V. New Merton Board Mills: A prisoner who is having suicidal
tendency and due to carelessness on part of police he commits suicide. It was duty of
care on the police officer’s part to make sure that he does not commits suicide.
3. Negligence – Defendant should not be negligent.
 Brandon V. Osborne: Husband and wife entered in a shop and all of a sudden
skylight falls on them causing death. Even if the consent was present but still the
defendant cannot claim for damages under VNFI.
 T.C. Balakrishnan Menon V. T.R. Subramanian: Fireworks during
celebration during a festival caused death of some people due to some fault in the
explosives.
4. Rescue Cases – “Danger invites rescue”
Risk invites rescue but that does not mean that the person being rescued gave his consent of
death.
 Haynes V. Harwood: House of Lords held that, “A man cannot be deemed to have
given real consent if the act is under the compulsion of legal or moral duty.
 Cutler V. United Dairies: House of Lords held that “Rescuer must take
unnecessary risk only then we can consider it as a rescue.”

 Plaintiff the wrongdoer – Plaintiff is deliberately engaged in doing a wrongful act.

 Bird V. Holbrook: Spring guns were set up by plaintiff in his own premises. When
the defendant entered the house, his body punctured. Though trespass is there by the
defendant but the plaintiff is the wrongdoer.

 Inevitable Accident – It is a mix of both Act of God and those factors which are under
human control. We have to analyse the facts and within those facts the case is decided.
So, it is situation specific.
 Brown V. Kendall – Plaintiff’s and defendant’s dogs were fighting with each other.
The defendant tried to stop the fight and he hit the dogs with a stick so as to control
the dogfight but a stick hit plaintiff’s eye causing injury. The court reasoned that
Defendant could only be liable if he was at fault and fault was to be determined by
whether or not Defendant was acting with “ordinary care and prudence,” a
formulation of the reasonable person standard. The court defined “reasonable care”
as follows: “In using this term, ordinary care, it may be proper to state, that what
constitutes ordinary care will vary with the circumstances of cases. In general, it
means that kind and degree of care, which a prudent and cautious man would use,
 such as is required by the exigency of the case, and such as is necessary to guard
against probable danger.”
The court also determined that it was Plaintiff’s burden of proving that Defendant was not
acting within the reasonable person standard of care.
 Nitro-glycerine Case – The act done must be lawful and it must be done by
proper and safe means (resources).
Act of God (vis majeure): -
According to Pollock, it is defined as an operation of natural forces so unexpected to be
anticipated.
Essentials: -
1. Working of natural forces
2. Occurrence must be extraordinary
e.g.; Tsunami, Earthquakes, Floods, Drought, Tornado, Cyclone, etc.
Act of God does not incorporate human intervention.
Case Laws: -
1. Nichols V. Marsland – Defendant is having an artificial lake. Due to heavy
rainfall, the artificial lakes flooded and it resulted in washing away of 4 bridges of
plaintiff.
Held: The defendant cannot be held liable due to Act of God.
2. Slater V. Worthington – There was a heavy snow-storm in the city due to which
there was huge amount of snow lying on the roof of the defendant and after some
time the plaintiff was standing near the same place and all the snow fell down causing
huge injury to the plaintiff.
Held: Defendant was held liable because it was his duty to get rid of the accumulated
snow or at least give a notice about it to the people. So, this case makes a distinction
between Act of God and human intervention.
3. Kallulal V. Hemchand – Rainfall (2.66 inches) occurred and it wasn’t that huge.
The building of defendant was damaged. The building was actually weak and it was
due to the ignorance of the defendant that it got damaged.
Held: Defendant could not take defence of Act of God.
4. Ramalinga Nadar V. Narayyana Raddiar: Unruly mob created a havoc and
identification of the people of the mob became difficult. If any unruly mob attacks
and grabs something then we do not consider it to be act of God. It is rather
considered to be as a result of human intervention.
Private Defence: -
In any sort of emergency, you can initiate an action to save yourself or other. It is good
ground to escape liability. In this case, law permits the use of reasonable force to protect
one’s life and property.
Reasonable force is such that where you can avoid grave injury. That degree of force to avoid
the immediate danger.
Essential elements: -
 There must be an imminent and immediate danger.
 The force employed must be reasonable in nature.
 The force employed must be for the purpose of defence.
To sum up, we can imply that there was a necessary act at that moment.
Case Laws: -
1. Morris V. Nugent: House of Lords held, “The force must not be employed by way
of retaliation if the danger is over.”
Facts: In this case the defendant shot plaintiff’s dog after the dog attempted to bite
him and in fact was running away.
Held: The right of private defence could not be pleaded.
2. Turner V. Jagmohan Singh: A vicious dog (e.g.; English mastiff with an avg.
weight of 80 kgs) continued attacking plaintiff’s horses and as a result the plaintiff
beat the dog until death.
Held: Plaintiff succeeded in pleading private defence.
3. Cherubin V. State of Bihar: Setting up of spring guns in one’s premises without
any notice cannot be a private defence. Even fixing of live current wires without any
notice cannot be considered as a private defence.
4. Ilot V. Wilkes: Plaintiff took a notice of setting up of spring guns in the premises
and succeeded in pleading for private defence.
Necessity: - An act causing damage if done under necessity to prevent a greater evil is not
actionable even though harm was caused intentionally. The definition of necessity is very
much in consonance with the elements of private defence.
 In case of private defence, the action is always secondary.
 In the case of necessity other than private defence, the action may be primary. E.g.;
rescue case (voluntary in nature)
 Necessity can be of voluntary nature but otherwise in case of private defence it is not
voluntary.
Statutory Authority: The damage resulting from an act done by any statutory authority,
which the legislature authorizes or directs to be done, is not actionable even though it would
otherwise be a tort. The act done must be in pursuance of the rules and regulations framed
by the legislation.
Case Laws: -
1. Vaughan V. Taff Vale Rail Company: House of Lords held that, “Immunity
under the statutory authority isn’t only for harm which is obvious but also for the
harm which is incidental to the exercise of such authority.”
Facts: In this case, sparks from an engine of the respondent railway company set fire
to the appellant’s goods on the adjacent land. Although, respondent took all due care
but it was held that the respondent was liable.
2. Hammersmith Rail Co. V. Brand: Plaintiff’s property depreciated due to the
noise; vibration & smoke caused by the running of trains.
Held: Plaintiff could not recover anything as it is all incidental in the course of
business.
3. Smith V. The London and South Western Railway Company: The servants
of a railway company negligently left trimmings of grass and hedges near a railway
line. The sparks from an engine set the material on fire and caught the plaintiff’s
cottage. It was held that the defendant was held liable.
4. The Gas Light and Coke Co V. The Vestry of St Mary’s Abbott’s,
Kensington: Defendant used considerably heavy rollers to repair the highway and
thereby damaged the pipes belonging to the gas company under the highway.
Held: Gas company was entitled for injunction as the defendant did not act
prudently.
5. Bhogilal V. Municipality of Ahmedabad: The municipality demolished the
plaintiff’s wall under its statutory powers which resulted in falling of the roofs. It was
held that, no suit will lie as the execution of powers even by a statute, these powers
being exercised with judgement and caution.
Statutory Authority is further divided in two types of authorities: -
1. Absolute Authority: An authority to do the act causes necessarily a nuisance or
other injuries in consequences. It arises when you’re trying to protect the interest of
the society at large.
2. Conditional Authority: An act which can be done without causing a nuisance or
other injuries in consequences. It arises when you’re dealing with protection of
individual rights.

Law of Specific Torts

It includes several torts such as: -
1. Negligence
2. Nuisance
3. Defamation
4. Trespass
5. Assault
6. Battery
Negligence
Essentials of Negligence are as follows: -
1. The defendant must owe a duty (legal duty) of care.
2. Breach of that legal duty.
3. Plaintiff must suffer from damage.

To claim damages under negligence

In Civil law you can claim only damages and that too when the party is in position to pay
otherwise you have to settle the matter.
In law of torts, there is no difference between negligence and gross negligence

Used in medical negligence cases

Applicability is very important in case of law as distinction between essentials and conditions
are to be kept in mind while writing answer in exams.
Defamation: Basically, means hurting the reputation of a person.
Essentials of defamation: -
1. The statement must be false and defamatory.
2. That statement must be related to the plaintiff.
3. That statement must be published. It means that you have the hard evidence
Negligence: -
An Introduction
Negligence – A duty is imposed on a person by law to act with care towards others, if this
duty exists and there is a failure to act carefully and another suffers loss, then the tort of
negligence is committed.
It is already known that the India law of torts is based on the English Common Law. Thus,
the law relating to negligence is adopted and modified by the courts of India on the
principles of justice, equity and good conscience. The term Negligence is derived from the
Latin word negligentia, which means ‘failing to pick up’. In the general sense, the term
negligence means the act of being careless and in the legal sense, it signifies the failure to
exercise a standard of care which the doer as a reasonable man should have exercised in a
particular situation. Negligence in English law emerged as an independent cause of action
only in the 18th century. Similarly in Indian law, the IPC, 1860 contained no provision for
causing the death of a person by Negligence which was subsequently amended in the year
1870 by inserting section 304A.
Definition of Negligence
In Law of Torts Negligence may be defined as breach of duty caused by the omission to do
something which a reasonable man, guided by those considerations which ordinarily
regulate the conduct of human affairs would, do or doing something which a prudent
reasonable man would not do, actionable negligence consists in the neglect of the use of
ordinary care or observing ordinary care and skill toward a person to whom the defendant
owes a duty of observing ordinary care and skill.

 Negligence has been viewed in three ways firstly involving a careless state of mind,
secondly, a careless conduct, and thirdly done due to negligence injury and damage
may be found due to breach of conduct or tort.

According the Winfield and Jolowicz, Negligence is the breach of a legal duty of care by
the plaintiff which results in undesired damage to the plaintiff.
In Blyth v. Birmingham Water Works Co, Negligence was defined as the omission to
do something which a reasonable man would do or doing something which a prudent or
reasonable man would not do.
According to Jay M. Feinman, the core idea of negligence is that people should exercise
reasonable care when they act by taking account of the potential harm that they might
foreseeably cause harm to other people.

How is Criminal Negligence different from Civil Negligence?

 Criminal Negligence is said to take place when a person acts in a particular way which
is an extreme departure from which a reasonable person would act in a similar or
same circumstance. The difference in civil negligence is that the conduct may not be
seen as a radical departure from the way a reasonable person would have responded.
 Civil negligence occurs when a person fails to exercise ordinary care or due diligence
but criminal negligence relates to a conduct that is considered so extreme and rash
that it is a clear divergence from the way an ordinarily prudent person would act and
is considered to be more than just a mistake in judgment or distraction.
 The punishment for a person who was liable in a civil negligence case only extends to
the extent of damage caused to the plaintiff i.e.; compensation for the damages. In
criminal negligence cases, the punishment is much more serious and can be
 convicted for a prison term, fine and probation supervision. Example the punishment
for criminal negligence amounting to death under section 304A of IPC can extend to
2 years of jail and fine or both.
 For example, if someone driving a vehicle under the influence of drugs and alcohol
and caused the death of an individual, it would amount to criminal negligence since
this is considered extreme carelessness on their part.

Essentials of Negligence: -

Three basic constituents must be proved for the plaintiff to be successful in negligence –
(a) Duty of Care
(b) Breach of the same duty
(c) Consequential damage

Duty of care: -

Duty of care is a specific Legal obligation to not harm others or their property. It means a
legal duty rather than a mere moral, religious or social duty. The Plaintiff has to established
that the defender owed to him a specific legal duty to take care of which he has made a
breach. It depends in each case whether a duty existed between defendant and claimant.
It is one of the essential conditions of negligence in order to make the person liable. It means
that every person owes a duty of care, to another person while performing an act. Although
this duty exists in all act, but in negligence, the duty is legal in nature and cannot be illegal or
unlawful and also cannot be of moral, ethical or religious nature.
The case of Donoghue v. Stevenson (1932) has evolved the principle that we each have a duty
of care to our neighbour or someone we could reasonably expect to be affected by our acts or
omissions. It was held that, despite no contract existed between the manufacturer and the
person suffering the damage an action for negligence could succeed since the plaintiff was
successful in her claim that she was entitled to a duty of care even though the defective good
i.e.; a bottle of ginger beer with a snail in it was bought, not by herself, but by her friend.
In landmark case Donoghue v. Stevenson, allowing the consumer of drink action in tort
against the manufacturer, between whom there was no Contract. A manufacturer of goods
owes a duty of care to the ultimate consumer.
The modern law of negligence can be said to have begun with the case of Donoghue v.
Stevenson (1932) Lord Atkin Propounded the following rule:
“You must take reasonable care to avoid acts or omissions which you can reasonable foresee
would be likely to injury four neighbour”
Duty depends on reasonable foreseeability of injury - A defendant will only owe a duty of
care to Plaintiff who are reasonably foreseeable. When determining whether a defendant
breached his duty of care by acting below the Standard of Care, the court first determines
whether the risk was foreseeable. If it will not be required to take measures to prevent it. A
defendant will only be liable for damage which are reasonably foreseeable (in other words,
not too remote)
Breach of duty to take care: -
It’s not enough for a plaintiff to prove that the defendant owed him a duty of care but he
must also establish that the defendant breached his duty to the plaintiff. A defendant
breaches such a duty by failing to exercise reasonable care in fulfilling the duty. In other
words, the breach of a duty of care means that the person who has an existing duty of care
should act wisely and not omit or commit any act which he has to do or not do as aid in the
case of Blyth v. Birmingham Waterworks Co, (1856). In simple terms, it means non-
observance of a standard of care.
In the case of Ramesh Kumar Nayak vs Union of India (1994), The post authorities
failed to maintain the compound wall of a post office in good condition on the collapse of
which the defendant sustained injuries. It was held that postal authorities were liable since
that had a duty to maintain the post office premises and due to their breach of duty to do so,
the collapse occurred. Hence, they were liable to pay compensation. In the case of Municipal
Corporation of Delhi v. Subhagvanti (AIR 1966)
A very old clock tower situated right in the middle of a crowded area of Chandni Chowk
suddenly collapsed thereby causing the death of many people. The clock tower was 80 years
old although the normal life span of the clock tower should have been 40-45 years. The clock
tower was under the control of The Municipal Corporation of Delhi and they have a duty of
care towards the citizens. By ignoring to repair the clock tower, they had breached their duty
of care towards the public and were thereby liable.
Consequential Damage to the plaintiff: -
Proving that the defendant failed to exercise reasonable care is not enough. It should also be
proved that the failure of the defendant to exercise reasonable care resulted in damages to
the plaintiff to whom the defendant owed a duty of care.
The harm may fall into the following classes: -

a) Bodily harm
b) Harm to the reputation
c) Harm to property
d) Financial Loss
e) Mental Harm

When such damage is proved, the defendant is bound to compensate the plaintiff for the
damages occurred.
In the case of Joseph vs Dr. George Moonjely (1994). The Kerala high court awarded
damages amounting to Rs. 1,60,000 against a surgeon for performing an operation on a 24-
year-old girl without following proper medical procedures and not even administering local
anaesthesia.
Res ipsa loquitur
Res ipsa loquitur is a Latin phrase that means “the thing speaks for itself.”
It is considered to be a type circumstantial evidence which permits the court to determine
that the negligence of the defendant led to an unusual event that subsequently caused injury
to the plaintiff. Although generally the duty to prove that the defendant acted negligently lies
upon the plaintiff but through res ipsa loquitur, if the plaintiff presents certain
circumstantial facts, it becomes the burden of the defendant to prove the was not negligent.
Thus, the flowing are the three essential requirements for the application of this maxim-

1) The thing causing the damage must be under the control of the defendant or his servants.
2) The accident must be such as would not have happened in the ordinary course of things
without negligence.
3) There must be no evidence of the actual cause of the accident.
Defences available in a suit for negligence: -

Contributory negligence by the plaintiff

Contributory negligence means that when the immediate cause of the damage is the
negligence of the plaintiff himself, the plaintiff cannot sue the defendant for damages and the
defendant can use it as a defence. This is because the plaintiff in such a cause is considered to
be the author of his own wrong. It is based on the maxim volenti non fit injuria which states
that if someone willingly places themselves in position which might result in harm, they are
not entitled to claim for damages caused by such harm.

The burden of proving contributory negligence rests on the defendant in the first instance
and in the absence of such evidence, the plaintiff is not bound to prove its non-existence.
In the case of Shelton Vs L & W Railway (1946), while the plaintiff was crossing a
railway line, a servant of the railway company who was in charge of crossing shouted a
warning to him. Due to the plaintiff being deaf, he was unable to hear the warning and was
consequently injured. The court held that this amounted to contributory negligence by him.

An Act of God
An Act of God is a direct, violent and sudden act of nature which by any amount of human
foresight could have been foreseen and if foreseen could not by any amount of human care
and shill have been resisted. Thus, such acts which are caused by the basic forces of nature
come under this category. For example, storm, tempest, extraordinary high tide,
extraordinary rainfall etc.
If the cause of injury or death of a person is due to the happening of a natural disaster, then
the defendant will not be liable for the same provided that he proves the same in the court of
law. This particular defence was talked in the case of Nichols v. Marsland (1876) in
which the defendant has a series of artificial lakes on his land. There had been no negligence
on the part of the defendant in the construction and maintenance of the artificial lakes. Due
to unpredictable heavy rain, some of the reservoirs burst and swept away four country
bridges, it was held by the court that the defendant could not be said to be liable since the
water escaped by the act of God.

Inevitable Accident
An inevitable accident can also be called as a defence of negligence and refers to a defence of
negligence and refers to an accident that had no chance of being prevented by the exercise of
ordinary care, caution, and sill. It means a physically unavoidable accident.
In case of Brown v. Kendal (1850) the plaintiff’s and defendant dogs were fighting and
their owners attempted to separate them. In an effort to do so, Defendant beat the dogs with
a stick and accidentally injured the Plaintiff, severely injuring him in the eye. The Plaintiff
brought suit against the Defendant for assault and battery. It was held that the injury of the
plaintiff was as a result of an inevitable accident.
In order to prove that an act was negligent, it is necessary to prove all the essentials namely
duty, breach of duty, damages and actual and proximate cause. An important maxim
regarding negligence, i.e.; Res Ipsa Loquitur is used by the courts when a negligent act
cannot be explained. Also, the defences in a suit for negligence can be used by the defendant
to defend himself from a suit issued by the plaintiff.