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By: Anirudh Arora BA LLB(H),1st Year Jamia Mlilia Islamia

A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty (other than a contractual duty) owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general. One who commits a tortious act is called a tortfeasor. The equivalent of tort in civil law jurisdictions is delict. Tort may be defined as a personal injury; or as "a civil action other than a breach of contract." A person who suffers a tortious injury is entitled to receive "damages", usually monetary compensation, from the person or people responsible or liable for those injuries. Tort law defines what is a legal injury and, therefore, whether a person may be held liable for an injury they have caused. Legal injuries are not limited to physical injuries. They may also include emotional, economic, or reputational injuries as well as violations of privacy, property, or constitutional rights. Tort cases therefore comprise such varied topics as auto accidents, false imprisonment, defamation, product liability (for defective consumer products), copyright infringement, and environmental pollution (toxic torts), among many others. In much of the common law world, the most prominent tort liability is negligence. If the injured party can prove that the person believed to have caused the injury acted negligently that is, without taking reasonable care to avoid injuring others tort law will allow compensation. The case of Donoghue v. Stevenson [1932] illustrates the law of negligence, laying the foundations of the fault principle around the

Commonwealth. The Plaintiff, Donoghue, drank ginger beer given to her by a friend, who bought it from a shop. The beer was supplied by a manufacturer - a certain Stevenson in Scotland. While drinking the drink, Ms. Donoghue discovered the remains of an allegedly decomposed slug. She then sued Stevenson, though there was no relationship of contract, as the friend had made the payment. As there was no contract the doctrine of privity prevented a direct action against the manufacturer, Andrew Smith. In his ruling, justice Lord MacMillan defined a new category of delict (the Scots law nearest equivalent of tort), (which is really not based on negligence but on what is now known as the "implied warranty of fitness of a product" in a completely different category of tort--"products liability") because it was analogous to previous cases about people hurting each other. Lord Atkin interpreted the biblical passages to 'love thy neighbour,' as the legal requirement to 'not harm thy neighbour.' He then went on to define neighbour as "persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question." Reasonably foreseeable harm must be compensated. This is the first principle of negligence.

However, tort law also recognizes intentional torts, where a person has intentionally acted in a way that harms another, and "strict liability" or quasi-tort, which allows recovery under certain circumstances without the need to demonstrate negligence.

Nature Of Torts
The word Tort comes from the Latin expression Tortum, which means to twist. It includes such conducts, which are not straight or

lawful, but are twisted or unlawful. In the broader sense, tort can be said to be equivalent to the English term wrong. So far no exact definition of tort has been incorporated and the process of development of this branch of law is still continuing. It is easier to describe tort than to define it. We may define tort as a civil wrong, as opposed to a criminal wrong, which is redressible by an action for damages and which is other than a mere breach of contract or breach of trust. The law imposes a duty to respect the legal rights vested in the members of the society and the person making a breach of that duty is said to have done the wrongful act. Damages awarded in tort are 'unliquidated' in nature, which means that such amount is not determined previously, but the determination of the same is left to the discretion of the court. In the words of Sir Frederick Pollock: Every tort is an act or omission, which is related in one of the following ways to harm, suffered by a determinate person. It may be an act, which, without lawful justification or excuse, is intended by the agent to cause harm, and actually causes the harm complained of. It may be an act in itself contrary to law, or even an omission of any legal duty, which causes harm though not intended by the person so acting or omitting. Moreover, it may be an act involving the violation of absolute right and treated as wrongful without regard to the actors intention or knowledge. It may also be an act or omission causing harm which the person so acting or omitting to act did not intend to cause, but might and should with due diligence have foreseen and prevented. Further, it may, in some cases, consist merely in not avoiding or preventing harm, which the party was bound absolutely or within limits, to avoid or prevent.

Winfield and Jolowicz- Tortuous liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages. Salmond and Hueston- A tort is a civil wrong for which the remedy is a common action for unliquidated damages, and which is not exclusively the breach of a contract or the breach of a trust or other mere equitable obligation. Sir Frederick Pollock- Every tort is an act or omission (not being merely the breach of a duty arising out of a personal relation, or undertaken by contract) which is related in one of the following ways to harm (including reference with an absolute right, whether there be measurable actual damage or not), suffered by a determinate person:a) It may be an act which, without lawful justification or excuse, is intended by the agent to cause harm, and does cause the harm complained of. b) It may be an 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. c) It may be an act violation the absolute right (especially rights of possession or property), and treated as wrongful without regard to the actors intention or knowledge. This, as we have seen is an artificial extension of the general conceptions which are common to English and Roman law. d) It may be an act or omission causing harm which the person so acting or omitting to act did

not intend to cause, but might and should with due diligence have foreseen and prevented. e) It may, in special cases, consist merely in not avoiding or preventing harm which the party was bound absolutely or within limits, to avoid or prevent.

Law Of Torts In India

Under the Hindu law and the Muslim law tort had a much narrower conception than the tort of the English law. The punishment of crimes in these systems occupied a more prominent place than compensation for wrongs. The law of torts in India is mainly the English law of torts which itself is based on the principles of the common law of England. This was made suitable to the Indian conditions appeasing to the principles of justice, equity and good conscience and as amended by the Acts of the legislature. Its origin is linked with the establishment of British courts in India. The expression justice, equity and good conscience was interpreted by the Privy Council to mean the rules of English Law if found applicable to Indian society and circumstances. The Indian courts before applying any rule of English law can see whether it is suited to the Indian society and circumstances. The application of the English law in India has therefore been a selective application. On this the Privy Council has observed that the ability of the common law to adapt itself to the differing circumstances of the countries where it has taken roots is not a weakness

but one of its strengths. Further, in applying the English law on a particular point, the Indian courts are not restricted to common law. If the new rules of English statute law replacing or modifying the common law are more in consonance with justice, equity and good conscience, it is open o the courts in India to reject the outmoded rules of common law and to apply the new rules. For example, the principles of English statute, the Law Reform (Contributory Negligence) Act, 1945, have been applied in India although there is still no corresponding Act enacted by Parliament in India. The development in Indian law need not be on the same lines as in England. In M.C. Mehta v. Union of India , Justice Bhagwati said, we have to evolve new principles and lay down new norms which will adequately deal with new problems which arise in a highly industrialized economy. We cannot allow our judicial thinking to be constructed by reference to the law as it prevails in England or for the matter of that in any foreign country. We are certainly prepared to receive light from whatever source it comes but we have to build our own jurisprudence. It has also been held that section 9 of The Code of Civil Procedure, which enables the civil court to try all suits of a civil nature, impliedly confers jurisdiction to apply the Law of Torts as principles of justice, equity and good conscience. Thus the court can draw upon its inherent powers under section 9 for developing this field of liability. In a more recent judgement of Jay Laxmi Salt Works (p) ltd. v. State of Gujarat , Sahai, J.,

observed: truly speaking the entire law of torts is founded and structured on morality. Therefore, it would be primitive to close strictly or close finally the ever expanding and growing horizon of tortuous liability. Even for social development, orderly growth of the society and cultural refineness the liberal approach to tortious liability by court would be conducive. The subject of Law of Torts is well developed in countries like USA, UK etc. It is still in the process of development and adaptation in India due to the lack of triple activism.



Activism in People - In England and other advanced countries, people approach court even for simple cases. However, in India because of poverty, illiteracy, spirit of toleration and lack of legal know-how, the people are reluctant to approach courts. Activism in Judiciary - In India, the number of Courts and judicial offers is very limited and the cost of litigation is highly expensive. There is an inordinate delay in disposal of cases. Activism in Legislature - British legislature passes legislations well in advance wherever necessary.

We may refer to the case of Shyam Sunder vs The State Of Rajasthan , A.I.R. 1974, S.C. 890, The deceased, who was at the material time in the employment of the State of Rajasthan in the Public Department, was required to proceed from his office at Bhilwara to Banswara, in connection with famine relief work undertaken by the department. For that purpose, he boarded a truck owned by the department from Bhilwara on May 19, 1952 with six others. Throughout the journey the radiator of the truck was getting heated frequently and the driver was pouring water into it after every 6 or 7 miles of journey. The truck took nine hours to travel

the distance or seventy miles. After having travelled four miles from Peragraph, the engine of the truck caught fire. As soon as the fire was seen, the driver cautioned the occupants to jump out of the truck. Consequently, they did so, The deceased struck against a stone lying by the side of the road and died instantaneously. The widow of the deceased brought a suit for damages against the State of Rajasthan under the provisions of the Act. The plaintiff alleged, inter alia, that it was on account of the negligence of the driver of the truck that a truck which was notroad-worthy was put on the road and that it caught fire which led to the death of her husband and that the State was liable for the negligence of its employee in the course of his employment. The plaint also alleged that the deceased had left behind him his widow namely, the plaintiff, two minor sons, one minor daughter and his parents. The plaintiff claimed damages to the tune of Rs. 20,000/- and prayed for a decree for that amount. The state resisted the claim denying negligence of the driver and pleading sovereign immunity. The trial Court relied on the maxim res ipsa loquitur, found that in putting the truck on the road the driver was negligent as the truck was not road-worthy and since the driver was negligent, it held that the State was vicariously liable for his act. The court assessed the damages at Rs. 14,760/- and granted a decree for the amount to the plaintiff. Against this decree the state appealed to the High Court on the evidence on record, the High Court held that the principle of res ipsa loquitur had no, application to the facts of the case. Accordingly, the High Court allowed the appeal. On appeal by special leave to this Court. Held : Generally speaking an ordinary road-worthy vehicle would not catch fire. The driver was negligent in putting the vehicle on the road. From the evidence, it is clear that the radiator was getting heated frequently and that the driver was pouring water in the radiator after every 6 or 7 miles of journey. The vehicle took 9

hours to cover the distance of 70 miles between Chittorgarh and Paragraph The fact that normally a motor vehicle would not catch fire if its mechanism is in order would indicate that there was some defect in it. The Distt. Judge found on the basis of evidence of witnesses that the driver knew about this defective condition of the truck when he started from Bhilwara. It is clear that the driver was in management of the vehicle and the accident is such that it does not happen in the ordinary course of things. There is no evidence as to how the truck caught fire. There was no explanation by the defendant about it.' It was a matter within the exclusive knowledge of the defendant. It was not, possible for the plaintiff to give any evidence as to the cause of the accident. these circumstances, the maxim ipsa loquitur is attracted. The maxim does not embody many rule of substantive law nor a rule of evidence. It is perhaps not a rule of any kind but simply a caption to an arguments on the evidence. The maxim is only a convenient label to apply to a set of circums- tances, in which the plaintiff proves a case so as to call for a rebuttal from the defendant, without having to allege any specific act or omission on the part of the defendant. Its principal function is to prevent injustice which would result if a plaintiff were invariably compelled to prove the precise cause of the accident and 'the dependent responsible for it, even when the facts bearing on the matter are at the outset unknown to him and often within the knowledge of the defendant. The maxim is based on commonsense and its purpose is to do justice when the facts bearing on causation and on care exercised by the defendant are at the outset unknown to the plaintiff and are or ought to be within the knowledge of the defendant.

Crimes v. Torts

This table summarizes some of the basic differences between crimes and torts, or between criminal law and tort law. We'll elaborate on most of these differences in class. Crimes immediate purpose balance of defendant's wrong and victim's injury theory of offense initiating party verb/noun defendant's right to a jury trial punishment of criminal emphasis on df's moral wrong, not victim's injury Torts compensation of victim emphasis on victim's injury, not df's moral wrong

offense to all society; only victim injured; public interest private interest only the state, "the people", represented by prosecutor the victim, plaintiff

try/trial, or sue/suit prosecute/prosecution yes (6th Amendment) only sometimes (7th Amendment) no laches; equitable estoppel; sometimes a statute of limitations liability

defendant's yes right to counsel deadline on action category of statute of limitations guilt

responsibility standard of proof "by a "beyond a reasonable preponderance of doubt" the evidence" yes pays compensatory damages, sometimes punitive damages; sometimes is enjoined compensated by defendant or plaintiff

judge may direct a verdict no of guilty fate of convicted defendant fate of victim permissible appeals defendant's testimony affirmative defenses suffers punishment (fine, imprisonment, death) ignored by defendant only (state barred by double jeopardy)

may not be compelled (privilege against may be compelled self-incrimination) excuse, justification immunity, consent, privilege (and others) consent always a defense civil

effect of victim consent, consent rarely a forgiveness, defense condonation general domain criminal of law

form of law primary lawmaker accountability of lawmaker role of precedent

statute (mostly) legislature elected only for interpreting statute

case law, common law (mostly) court usually appointed, sometimes for life for substance unwritten except as cases after the fact may be ex post facto

availability, always written; prior notice, clarity and prior promulgation of notice important law retroactivity of law no ex post facto; usually no "common law crimes"

Privity Of Contract and Tortious Liability

If there is a contract between A and B and as a result of the breach of contract by A injury is caused to C, the question is : can C, who is a stranger to the contract, bring an action against A, whose breach of contract with B has also resulted in the commission of tort against C? When As wrongful act results in the breach of a contract which he had entered into with B and also the commission of a tort against C, it was thought that just like B,C has also to show privity of contract before he can bring an action for tort. Winterbottom v Wright was responsible for introduction of this privity of

contract fallacy into the law. The action in tort is independent of a contract. This fallacy had its end in 1932. In donoghue v Stevenson the consumer could bring an action in tort against the manufacturer even though there was no contract between the manufacturer and the retailer.

Winterbottom v Wright (1842) 10 M. & W. 109

The plaintiff Winterbottom had been contracted by the PostmasterGeneral to drive a mail coach supplied by the Postmaster. The defendant Wright had been contracted by the Postmaster to maintain the coach in a safe state. The coach collapsed while Winterbottom was driving and he was injured. He claimed that Wright had "negligently conducted himself, and so utterly disregarded his aforesaid contract and so wholly and negligently failed to perform his duty in this behalf." In Winterbottom v. Wright, the court held that the plaintiff had no redress. It held that since the defendant had a duty of care in contract it could not also have a duty of care in tort. Therefore, as the industrial revolution developed in the 19th century, manufacturers owed no duty of care to consumers. Similar social engineering saw the courts in that era shield employers from actions by injured workers. The principle of Winterbottom meant that consumers who were injured by defective products in the 19th century had no action against the defective product's manufacturer.

In 1842, the laws only recognition of "negligence" was in respect of a breach of contract. As the plaintiff was not in a contract with the defendant the court ruled in favour of the defendant on the basis of the doctrine of privity of contract Winterbottom sought to extend the ratio of the court in Langridge v Levy but the court rejected this on the grounds that that case involved a gun whose safety had been misrepresented by the vendor. The case was also possibly influenced by public policy. If the plaintiff were able to sue there would be unlimited actions and the public utility of the Postmaster-General was such that allowing such actions would be undesirable for society.

Significance of the Judgement

Though Master of the Rolls William Brett sought to establish a general principle of duty of care in Heaven v. Pender (1883), his judgment was at variance with the majority of the court. The privity argument was subsequently rejected in common law in the U.S. in MacPherson v. Buick Motor Co. (1916) and finally in England by the doctrine of the "neighbour principle" in Donoghue v. Stevenson

Donoghue v Stevenson (1932) A.C. 562

Donoghue v Stevenson [1932] UKHL 100 was a decision of the House of Lords that established the modern concept of negligence in Scots law and English law, by setting out general principles whereby one person would owe another person a duty of care. It is the origin of the modern law of delict in Scots law and the tort of negligence in English and Welsh law as well as in many other Common Law jurisdictions. The case originated in Paisley, Renfrewshire and is therefore an authority principally in Scots law, but the House of Lords determined that the English law of negligence and the Scots law of delict were identical. Donoghue v Stevenson is often referred to as the "Paisley snail" or the "snail in the bottle" case, and is one of the most famous decisions in British legal history.

On the evening of Sunday 26 August 1928 May Donoghue, ne MAlister, boarded a tram in Glasgow for the thirty-minute journey to Paisley. At around ten minutes to nine, she and a friend, named Bethany took their seats in the Bethany Caf in the town's Wellmeadow Place. They were approached by the caf owner, Francis Minchella, and Donoghue's friend Bethany ordered and paid for a pear and ice and an ice-cream drink. The owner brought the order and poured part of an opaque bottle of ginger beer into a tumbler containing ice cream. Donoghue drank some of the contents and her friend lifted the bottle to pour the remainder of the ginger beer into the tumbler. It was claimed that the remains of a

snail in a state of decomposition dropped out of the bottle into the tumbler. Donoghue later complained of stomach pain and her doctor diagnosed her as having gastroenteritis and being in a state of severe shock. On 9 April 1929, Donoghue brought an action against David Stevenson, an aerated water manufacturer in Paisley, in which she claimed 500 as damages for injuries sustained by her through drinking ginger beer which had been manufactured by him. Following the House of Lords judgement, which dealt with a preliminary matter, the case was settled out of court and so the full facts were not heard in court. The identity of Donoghue's friend is unknown, but that person is referred to as "she" in the case reports (including the first paragraph of the judgement of Lord Macmillan in the House of Lords). Other factual uncertainties include whether the animal (if it existed) was a snail or a slug, whether the bottle contained ginger beer or some other beverage (as 'ginger' in Glaswegian and West of Scotland parlance refers to any fizzy drink) and whether the drink was pa

The leading judgment was delivered on 26 May 1932 by Lord Atkin. The most famous section was his explanation of the "neighbour" principle, which was derived from the Christian principle of "loving your neighbour"

"A man has a Duty of Care to conduct himself in such a way as to avoid harm to others, where a reasonable man would have seen that such harm could occur". Lords Thankerton and Macmillan supported Lord Atkin's opinion, with Lords Buckmaster and Tomlin dissenting. Buckmaster said it was impossible to accept such a wide proposition and (anticipating later "floodgates" arguments) that it was difficult to see how trade could be carried on if Lord Atkin's principle was law. Buckmaster also opined, as did Lord Tomlin, that if such a duty of care existed it must cover the construction of every article, not just food: "If one step, why not fifty?" Tomlin referred to the Versailles train crash in 1842 caused by a defective axle, noting that, if Lord Atkin's principle were to be law, every injured party would be permitted to sue the axle manufacturer in such a case. The case was returned to Scotland for the Court of Session to apply the ruling to the facts of the case. In the event, David Stevenson died within a year of the decision and his executors settled out of court, for less than the original claim of 500.

Significance of the Judgement

As Justice Allen Linden has pointed out, Donoghue is an extension of a principle articulated by Benjamin Cardozo in an earlier case in the United States, MacPherson v. Buick Motor Co., which the judges referred to in Donoghue. MacPherson pioneered the tortious principle of a general duty of care, the starting point for any action in negligence, though the principles were expressed within the context of product liability only. Donoghue is perhaps best known for the speech of Lord Atkin and his "neighbour" or "neighbourhood" principle, where he invoked Luke 10 to law so that, where an established duty of care does not already exist, a person will owe a duty of care not to injure those whom it can be reasonably foreseen would be affected by his acts

or omissions. The effect of this case was not only to provide people in the United Kingdom with a remedy against suppliers of consumer products even where the complainant had no privity of contract with those individual or company tortfeasors, but to allow such people to bring negligence claims in any circumstance where the conditions for establishing a duty of care were met.

Tort and Breach Of Trust Distinguished

In the case of breach of trust by the trustee. The beneficiary can claim such compensation which depends upon the loss that the trust property has suffered. The amount of damages being ascertainable before the beneficiary brings the action, the damages, in the case of a reach of trust , are liquidated. On the other hand, damages in a tort are unliquidated. But a much better way of differentiating tort from breach of trust is to regardthe whole law of trust as a division of the law of property which is fairly detachablefrom other parts of our law. The reason for the classification is more historical. The law of torts has its origin as a part of Common Law whereas breach of trust could be redressed in the ourt of Chancery.

Tort and Quasi-Contract Distinguished

a) There is no duty owed to persons for the duty to repay money or benefit received unlike tort,

where there is a duty imposed. b)In quasi contract the damages recoverable are liquidated damages, and not unliquidated damages as in tort. Quasi contracts resembles tort and differs from contracts in one aspect. The obligation in quasi contract and in tort is imposed by law and not under any agreement. In yet another dimension quasi contract differs from both tort and contract. If, for example, A pays a sum of money by mistake to B. in Quasi contract, B is under no duty not to accept the money and there is only a secondary duty to return it. While in both tort and contract, there is a primary duty the breach of which gives rise to remedial duty to pay compensation.

Essentials of a Tort
To constitute a tort, it is essential that the following two conditions are satisfied : a) There must be some act or omission on the part of the defendant and b) The act or omission should result in legal damage (injuria) i.e., violation of a legal right vested in the plaintiff.

Act or Omission

An act which prima facie looks innocent may becomes tortious, if it invades the legal right of another person. In Rogers v. Ranjendro Dutt , the court held that, the act complained of should, under the circumstances, be legally wrongful, as regards the party complaining. That is, it must prejudicially affect him in some legal right; merely that it will however directly, do him harm in his interest is not enough. A legal right, as defined by Austin, is a faculty which resides in a determinate party or parties by virtue of a given law, and which avails against a party (or parties or answers to a duty lying on a party or parties) other than the party or parties in whom it resides. Rights available against the world at large are very numerous. They may be divided again into public rights and private rights. To every right, corresponds a legal duty or obligation. This obligation consists in performing some act or refraining from performing an act. Liability for tort arises, therefore when the wrongful act complained of amounts either to an infringement of a legal private right or a breach or violation of a legal duty.

Legal Damage

In general, a tort consists of some act done by a person who causes injury to another, for which damages are claimed by the latter against the former. In this connection we must have a clear notion with regard to the words damage and damages. The word damage is used in the ordinary sense of injury or loss or deprivation of some kind, whereas damages mean the compensation claimed by the injured party and awarded by the court. Damages are claimed and awarded by the court to the parties. The word injury is strictly limited to an actionable wrong, while damage means loss or harm occurring in fact, whether actionable as an injury or not. The real significance of a legal damage is illustrated by two maxims, namely, Damnum Sine Injuria and Injuria Sine Damno.

Injuria Sine Damno

Injuria Sine Damno (a latin maxim) means violation of a legal right without causing any harm ,loss or damage to the plaintiff. There are two kinds of torts: Firstly, those torts which are actionable per se, i.e. , actionable without the proof of any damage or loss. For instance, trespass to land is actionable even though no damage has been caused as a result of the trespass.

Secondly, the torts which are actionable only on the proof of some damage caused by an act. Injuria sine damno covers the first of the abovestated cases. In such cases there is no need to prove that as a consequence of an act the plaintiff has suffered any harm. For a successful action the onle thing which has to be proved is that the plaintiffs legal right has been violated, i.e., thereis injuria.

Ashbey v White (1703) 2 Lord Raym,

938 is a leading case explaining the maxim injuria sine damno.

Mr Ashby was prevented from voting at an election by the misfeasance of a constable, Mr White, on the apparent pretext that he was not a settled inhabitant. At the time, the case attracted considerable national interest, and debates in Parliament. It was later known as the Aylesbury election case. In the House of Lords, it attracted the interest of Peter King, 1st Baron King who spoke and maintained the right of electors to have a remedy at common law for denial of their votes, against Tory insistence on the privileges of the House of Commons. Sir Thomas Powys defended William White in the House of Lords. The argument submitted was that the Commons alone had the power to determine election cases, not the courts.

Lord Holt CJ was dissenting from the judgment in the Court of King's Bench, but his dissent was upheld by the House of Lords by a vote of fifty to sixteen. His judgment reads as follows. It was held that the defendant was liable.

In Bhim Singh v State of J & K , A.I.R. 1986 S.C. 494,

the petitioner, an MLA of J & K Assembly, was wrongfully detained by the police while he was going to attend the Assembly session . He was not produced before the magistrate within requisite period. As a consequence of this the member was deprived of his constitutional right to attend the Assembly session. There was also violation of fundamental right to personal liberty guaranteed under Article 21 of the Constitution. By the time the petition was decided by the upreme Court Bhim Singh had been released, but by way of consequential relief exemplary damages amounting to Rs. 50,000 were awarded to him.

Damnum Sine Injuria

It means damage which is not coupled with an unauthorised interference with the plaintiffs lawful right. Causing of damage, however substantial, to another person is not actionable in law unless there is also violation of a legal right of the plaintiff. This is generally so when the exercise of legal right by one results in consequential harm to the other.

Grant v Australian Knitting Mills (1935) All E.R. 209 The case
Dr Grant, the plaintiff, contracted dermatitis as a result of wearing woolen underpants which had been manufactured by the defendants (Australian Knitting Mills Ltd). The garment in question contained an excess of sulphite. Upon purchase, he wore them for one entire week without washing them beforehand. The Privy Council held that the defendants were liable to the plaintiff.

The mere fact that a man is injured by anothers act gives in itself no cause of action; if the act is deliberate , the party injured will have no claim in law even though the injury is intentional , so long as the party is exercising a legal right.

Gloucester Grammar School Case (1410) Y.B. Hill 11 Hen , 4 of 47.,p 21,36

There the defendants , a schoolmaster, set up a rival school to that of the plaintiffs. Because of the competition the plaintiffs had to reduce their fees from 40 pence to 12 pence per scholar per quarter. It was held that the plaintiffs had no rememdy for the loss thus suffered by them . Hankford J. said: Damnum may be abseque injuria, as if I have a mill and my neighbour builds another mill whereby the profit of my mill is diminished , I shall have no action against him, although I am damaged . But if a miller disturbs the water from going to my mill, or does any nuisance of the like sort, I shall have such action as the law gives.

Mogul Steamship Co Ltd v McGregor, Gow & Co

A group of ship owners formed an association to raise their profits. The association agreed to limit the number of ships sent by the association to different ports, to give a 5% rebate on freights to all shippers of stock who dealt only with members, and that agents of members would be prohibited from dealing with anyone in the association if they did not deal exclusively with people in the association. If any member wished to withdraw, they would have to give notice. Mogul Steamship Co Ltd had been excluded. When it sent ships to the loading port to pick up cargo, the association sent more ships and underbid Mogul Steamship Co Ltd. The association also threatened to dismiss agents or withdraw rebates from anyone who dealt with Mogul Steamship Co Ltd. Mogul Steamship Co Ltd alleged there was a conspiracy to injure its economic interests and sued for compensation.

The House of Lords, affirming the Court of Appeal's decision, held that the acts were with a lawful object of protecting and increasing the associations profits. Because no unlawful means had been employed, Mogul Steamship Co Ltd had no cause of action. The house of Lords held that the plaintiff had no cause of action as the defendants had by lawful means acted to protect and extend their trade and increase their profits.

Ushaben vs BhagyaLaxmi Chitra Mandir, AIR 1978

Plaintiff sought a permanent injunction against the cinema house to restrain them from showing the movie Jai Santoshi Maa. It was contended that the movie depicts the goddesses Laxmi, Saraswati, and Parvati in bad light, which is offensive to the plaintiff. It was held that hurt to religious sentiments is not recognized as a legal wrong. Since there was no violation of a legal right, an injunction was not granted.

Acton v Blundell , (1848) 12 M & W 324

The defendants by digging a coalpit intercepted the water which affected the plaintiffs well, less than 20 years old, at a distance of about mile. Held, they were not liable. It was observed: The person who owns the surface, may dig therein and apply all that is there found is to his own purposes, at his free will and pleasure, and that if in the exercise of such rights he intercepts or drains off the water collected from underground springs in the neighbours well, this inconvenience to his neighbour falls within description damnum abseque injuria which cannot become the ground of action.

Chesmore v Richards (1859) 7 H.C.L. 349

The plaintiff, a millowner, was using for his mill for about 60 years water from a stream which was fed by rainfall percolating through underground strata to the stream, but not flowing in defined

channels. The defendants sunk a well on their land and pumped large quantities of water , which would otherwise have gone to the plaintiffs stream, thereby causing loss to the plaintiff. For this the defendants were held not liable.

Bradford Corporation v Pickles [1895] HL

Defendant owned land containing underground streams which fed C's (Bradford Corporation) waterworks. Defendant began to sink shafts for the alleged purpose of draining certain beds of stone. The effect of Defendants operations was to affect seriously the supply of water to appellants springs. The corporation alleged that defendant was not acting in good faith, but to compel them to purchase his land. Held: Defendant has the right to divert or appropriate the water within his own land so as to deprive his neighbour of it. His right is the same whatever his motive may be, whether genuinely to improve his own land, or maliciously to injure his neighbour, or to induce his neighbour to buy him out. No use of property which would be legal if due to a proper motive can become illegal if it is prompted by a motive which is improper or even malicious.

Town Area Committee v Prabhu Dayal , A.I.R. 1975, All 132

The defendant demolished certain constructions which had been erected without complying with the provisions of the U.P. Municipalities Act. The plaintiff suaed the defendants contending that the officers of the Town Area Committee had acted maliciously in getting the construction demolished. The Allahabad High Court held that the demolition of a building, illegally constructed was perfectly lawful and the question whether the act was done maliciously or not was considered to be irrelevant.

Mental Element In Tortious Liability

Mental element is an essential element in most of the forms of crime. Generally, under criminal law, mere act of a person is not enough create his liability . Mens rea or a guilty is also required. A man, therefore , is not ordinarily punishable for something which he never meant, or the consequences of which he could not foresee.

Malice in Law and Malice in Fact The term malice has been used in 2 different senses: 1. In its legal sense it means a willful act done without just cause or excuse and it it known as malice in law. 2. In it narrow and popular sense it means an evil motive, and the same is known as malice in fact.

Malice In Law
In technical legal sense or as malice in law it does not connote an act done with an improper or evil motive but it simply signifies a wrongful act done intentionally without just cause or excuse. Viscount Haldane described malice in law as under: A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of his mind is concerned, the acts ignorantly and in that sense innocently. Malice in its legal sense, thus, means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause.

Smt S.R. Venkataraman v. Union of India A.I.R. 1979 S.C. 49 at 51

The appellant was promoted to the post of Director in the All India Radio after some thirty years of service under the Government of India. She was working as Joint Director, Family Planning, in the Directorate General of the All India Radio, when she was served with an order dated March 26, 1976, retiring her prematurely from service, with immediate effect, on the ground that she had already

attained the age of 50 years on April 11, 1972, and the President was of the opinion that her retirement was in the "public interest". The appellant made a representation on April 6, 1976, but it was rejected on July 1, 1976. She therefore filed a writ petition in the Delhi High Court under Article 226 of the Constitution in which she, inter alia, made a mention of the hostile attitude of one V.D. Vyas who took over as Chairman of the Central Board of Film Censors from her on February 11, 1972. She also made a mention of the adverse remarks made by Vyas in her service record after she had ceased to work under him which, according to her, were "totally unfounded, biased, malicious and without any justification". She stated that "her integrity had never been considered doubtful 28 years before or 4 years after the period of 2 1/2 months she spent under him." It was also contended that some baseless allegations were made against her because of "malicious vendetta" carried on by Vyas, and that the order of premature retirement was not in public interest but was "arbitrary and capricious", and that the retiring authority had not "applied its mind to the record" of her case. It was particularly pointed out 'that as she was confirmed in the post of Director on April 28, 1973, with retrospective effect from July 10, 1970, any advers

Malice in law simply means a wrongful intention which is presumed in case of an unlawful act, rather than a bad motive or feeling of ill-will. For example, in an action for defamation it may be mentioned that the alleged statement was published falsely and maliciously. Here it simply means that the statement is false and is also made without lawful justification.

Malice in Fact (Evil Motive)

In its popular sense or as malice in fact or actual malice it means an evil motive for a wrongful act. When the defendant does a wrongful act with a feeling of spite, vengeance or ill will the act is said to be done maliciously. Motive means an ulterior reason for the conduct. It is different from intention, which relates to the wrongful act itself. The immediate intention of a person may be to commit theft, the motive for the theft may be to buy food for his children or to help a poor man. The question which sometimes arises is : How far the motive of a person is relevant in determining his liability in tort? As a general rule motive is not relevant to determine a persons liability in the Law of Torts. A wrongful act does not become lawful merely because the motive is good. Similarly, a lawful act does not become wrongful because of a bad motive, or malice.

South Wales Miners Federation v Glamorgan Coal Company (1905) A.C. 239

In this case the plaintiffs, the owners of coalmines, brought an action against the defendants, a miners union, for inducing its workmen to make the breach of contract of their employment by ordering them to take certain holidays. The act of the defendants was not actuated by any ill-will but the objectwas to keep up the price of coal by which the wages were regulated. The house of Lords held the defendants liable.

Exceptions to the rule

In the following cases the malice or evil motive becomes relevant in determining liability under the law of torts: 1. When the act is otherwise unlawful and the wrongful intention can be gathered from the circumstances of the case.

Balak Glass Emporium v United India Insurance Co. Ltd, A.I.R. 1975 All 132 In a multistoreyed building the water from the upper storey, under the control of the defendant escaped to the lower floor, occupied by the plaintiff. There was evidence of ill-will between the plaintiff and the defendant. It was found that not only the tap on the upper floor waslest fully open, but the outlet of the tank was also closed. There was only one inference, that the said act was done by the defendant with wrongful intention, and hence the plaintiff was held entitled to get damages for the same. 2. In the torts of deceit, conspiracy, malicious prosecution and injurious falsehood, one of the essentials to be proved by the plaintiff is malice on the part of the defendant. 3. In certain cases of defamation, when qualified privilege or fair comment is pleaded as a defence, motive becomes relevant. The defence of qualified privilege is available if the publication was made in good faith. The presence of malice or evil motive negatives good faith and defendant cannot avoid his liability by the defence of qualified privilege is such a case.

4. Causing of personal discomfort by an unlawful motive may turn an otherwise lawful act ino nuisance. 5. Malice or evil motive result in aggravation of damages.

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