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

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

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

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. The expression justice. 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 . e) It may. This was made suitable to the Indian conditions appeasing to the principles of 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. consist merely in not avoiding or preventing harm which the party was bound absolutely or within limits. in special cases. The application of the English law in India has therefore been a selective application. The punishment of crimes in these systems occupied a more prominent place than compensation for wrongs. Its origin is linked with the establishment of British courts in India. but might and should with due diligence have foreseen and prevented. equity and good conscience and as amended by the Acts of the legislature. 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. to avoid or prevent. The Indian courts before applying any rule of English law can see whether it is suited to the Indian society and circumstances.not intend to cause.

the principles of English statute. the Indian courts are not restricted to common law.C. 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. State of Gujarat . Thus the court can draw upon its inherent powers under section 9 for developing this field of liability. . equity and good conscience. 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. J. equity and good conscience. in applying the English law on a particular point. If the new rules of English statute law replacing or modifying the common law are more in consonance with justice. In M. 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. It has also been held that section 9 of The Code of Civil Procedure. Union of India . Sahai.but one of its strengths.. 1945. For example. Further. The development in Indian law need not be on the same lines as in England. the Law Reform (Contributory Negligence) Act. Mehta v. it is open o the courts in India to reject the outmoded rules of common law and to apply the new rules. v. In a more recent judgement of Jay Laxmi Salt Works (p) ltd. have been applied in India although there is still no corresponding Act enacted by Parliament in India.

it would be primitive to close strictly or close finally the ever expanding and growing horizon of tortuous liability. For that purpose. 2. 1974. Activism in Judiciary . S.C. was required to proceed from his office at Bhilwara to Banswara. orderly growth of the society and cultural refineness the liberal approach to tortious liability by court would be conducive. 1952 with six others. However. illiteracy. 890.In India.R. in connection with famine relief work undertaken by the department. spirit of toleration and lack of legal know-how. Therefore.British legislature passes legislations well in advance wherever necessary. A. UK etc. The subject of Law of Torts is well developed in countries like USA. 3. There is an inordinate delay in disposal of cases. The truck took nine hours to travel .I. people approach court even for simple cases. 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. Activism in People . The deceased. It is still in the process of development and adaptation in India due to the lack of triple activism.In England and other advanced countries. he boarded a truck owned by the department from Bhilwara on May 19. in India because of poverty. Even for social development. Activism in Legislature . We may refer to the case of Shyam Sunder vs The State Of Rajasthan .observed: truly speaking the entire law of torts is founded and structured on morality. 1. the number of Courts and judicial offers is very limited and the cost of litigation is highly expensive. who was at the material time in the employment of the State of Rajasthan in the Public Department. the people are reluctant to approach courts.

it held that the State was vicariously liable for his act. The court assessed the damages at Rs. 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. application to the facts of the case. The trial Court relied on the maxim res ipsa loquitur.760/. After having travelled four miles from Peragraph. 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. Accordingly. The deceased struck against a stone lying by the side of the road and died instantaneously. they did so. 14. the driver cautioned the occupants to jump out of the truck. one minor daughter and his parents. the High Court held that the principle of res ipsa loquitur had no. the engine of the truck caught fire. the High Court allowed the appeal. The widow of the deceased brought a suit for damages against the State of Rajasthan under the provisions of the Act. The state resisted the claim denying negligence of the driver and pleading sovereign immunity. the plaintiff. two minor sons.and prayed for a decree for that amount. 20. The plaint also alleged that the deceased had left behind him his widow namely. The plaintiff claimed damages to the tune of Rs. Against this decree the state appealed to the High Court on the evidence on record. The plaintiff alleged.000/. Consequently. The vehicle took 9 . 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.the distance or seventy miles. inter alia. As soon as the fire was seen.and granted a decree for the amount to the plaintiff. From the evidence. 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 was a matter within the exclusive knowledge of the defendant. even when the facts bearing on the matter are at the outset unknown to him and often within the knowledge of the defendant. It was not.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. these circumstances. Torts . The Distt. in which the plaintiff proves a case so as to call for a rebuttal from the defendant. There was no explanation by the defendant about it.tances. It is perhaps not a rule of any kind but simply a caption to an arguments on the evidence. There is no evidence as to how the truck caught fire. possible for the plaintiff to give any evidence as to the cause of the accident. 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. The maxim is only a convenient label to apply to a set of circums. The maxim does not embody many rule of substantive law nor a rule of evidence. without having to allege any specific act or omission on the part of the defendant. Crimes v. 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. the maxim ipsa loquitur is attracted. 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.

We'll elaborate on most of these differences in class. only victim injured. plaintiff try/trial. represented by prosecutor the victim. not df's moral wrong offense to all society. equitable estoppel. public interest private interest only the state. not victim's injury Torts compensation of victim emphasis on victim's injury. 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. or between criminal law and tort law. or sue/suit prosecute/prosecution yes (6th Amendment) only sometimes (7th Amendment) no laches.This table summarizes some of the basic differences between crimes and torts. sometimes a statute of limitations liability defendant's yes right to counsel deadline on action category of statute of limitations guilt . "the people".

defense condonation general domain criminal of law . sometimes punitive damages. justification immunity. consent. privilege (and others) consent always a defense civil effect of victim consent. consent rarely a forgiveness.responsibility standard of proof "by a "beyond a reasonable preponderance of doubt" the evidence" yes pays compensatory damages. imprisonment. death) ignored by defendant only (state barred by double jeopardy) may not be compelled (privilege against may be compelled self-incrimination) excuse. 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.

whose breach of contract with B has also resulted in the commission of tort against C? When A’s 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.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. bring an action against A.C has also to show privity of contract before he can bring an action for tort. prior notice. clarity and prior promulgation of notice important law retroactivity of law no ex post facto. the question is : can C. “Winterbottom v Wright” was responsible for introduction of this “privity of . it was thought that just like B. always written. 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. sometimes for life for substance unwritten except as cases after the fact may be ex post facto availability. who is a stranger to the contract.

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. Therefore. & W. Similar social engineering saw the courts in that era shield employers from actions by injured workers. The defendant Wright had been contracted by the Postmaster to maintain the coach in a safe state. This fallacy had its end in 1932." In Winterbottom v. The coach collapsed while Winterbottom was driving and he was injured. 109 Facts The plaintiff Winterbottom had been contracted by the PostmasterGeneral to drive a mail coach supplied by the Postmaster. . It held that since the defendant had a duty of care in contract it could not also have a duty of care in tort. the court held that the plaintiff had no redress. and so utterly disregarded his aforesaid contract and so wholly and negligently failed to perform his duty in this behalf. The action in tort is independent of a contract. 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. He claimed that Wright had "negligently conducted himself.contract fallacy” into the law. Wright. • Winterbottom v Wright (1842) 10 M. as the industrial revolution developed in the 19th century. manufacturers owed no duty of care to consumers.

Stevenson . his judgment was at variance with the majority of the court. The case was also possibly influenced by public policy.Judgment In 1842. the law’s only recognition of "negligence" was in respect of a breach of contract. Pender (1883). 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. The privity argument was subsequently rejected in common law in the U.S. Buick Motor Co. Significance of the Judgement Though Master of the Rolls William Brett sought to establish a general principle of duty of care in Heaven v. (1916) and finally in England by the doctrine of the "neighbour principle" in Donoghue v. in MacPherson v. 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.

boarded a tram in Glasgow for the thirty-minute journey to Paisley.• Donoghue v Stevenson (1932) A.C. named Bethany took their seats in the Bethany Café in the town's Wellmeadow Place. she and a friend. Renfrewshire and is therefore an authority principally in Scots law. They were approached by the café owner. It was claimed that the remains of a . and is one of the most famous decisions in British legal history. by setting out general principles whereby one person would owe another person a duty of care. née M’Alister. At around ten minutes to nine. Facts On the evening of Sunday 26 August 1928 May Donoghue. 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. The owner brought the order and poured part of an opaque bottle of ginger beer into a tumbler containing ice cream. Francis Minchella. 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. Donoghue drank some of the contents and her friend lifted the bottle to pour the remainder of the ginger beer into the tumbler. and Donoghue's friend Bethany ordered and paid for a pear and ice and an ice-cream drink. The case originated in Paisley. Donoghue v Stevenson is often referred to as the "Paisley snail" or the "snail in the bottle" case. but the House of Lords determined that the English law of negligence and the Scots law of delict were identical.

Other factual uncertainties include whether the animal (if it existed) was a snail or a slug. Donoghue brought an action against David Stevenson. Donoghue later complained of stomach pain and her doctor diagnosed her as having gastroenteritis and being in a state of severe shock. which was derived from the Christian principle of "loving your neighbour" . The identity of Donoghue's friend is unknown.snail in a state of decomposition dropped out of the bottle into the tumbler. Following the House of Lords judgement. The most famous section was his explanation of the "neighbour" principle. in which she claimed £500 as damages for injuries sustained by her through drinking ginger beer which had been manufactured by him. 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). an aerated water manufacturer in Paisley. the case was settled out of court and so the full facts were not heard in court. On 9 April 1929. 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 Judgment The leading judgment was delivered on 26 May 1932 by Lord Atkin. which dealt with a preliminary matter.

if Lord Atkin's principle were to be law. noting that. every injured party would be permitted to sue the axle manufacturer in such a case.. David Stevenson died within a year of the decision and his executors settled out of court. not just food: "If one step. with Lords Buckmaster and Tomlin dissenting. where he invoked Luke 10 to law so that. Buckmaster also opined. that if such a duty of care existed it must cover the construction of every article. a person will owe a duty of care not to injure those whom it can be reasonably foreseen would be affected by his acts . Donoghue is perhaps best known for the speech of Lord Atkin and his "neighbour" or "neighbourhood" principle. Donoghue is an extension of a principle articulated by Benjamin Cardozo in an earlier case in the United States. though the principles were expressed within the context of product liability only. MacPherson pioneered the tortious principle of a general duty of care. as did Lord Tomlin. Lords Thankerton and Macmillan supported Lord Atkin's opinion. where an established duty of care does not already exist. for less than the original claim of £500. the starting point for any action in negligence. 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. why not fifty?" Tomlin referred to the Versailles train crash in 1842 caused by a defective axle. which the judges referred to in Donoghue. Buick Motor Co."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". In the event. Significance of the Judgement As Justice Allen Linden has pointed out. MacPherson v. The case was returned to Scotland for the Court of Session to apply the ruling to the facts of the case.

or omissions. Tort and Quasi-Contract Distinguished a) There is no duty owed to persons for the duty to repay money or benefit received unlike tort. The reason for the classification is more historical. On the other hand. The beneficiary can claim such compensation which depends upon the loss that the trust property has suffered. 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. 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 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. damages in a tort are unliquidated. Tort and Breach Of Trust Distinguished In the case of breach of trust by the trustee. are liquidated. The amount of damages being ascertainable before the beneficiary brings the action. but to allow such people to bring negligence claims in any circumstance where the conditions for establishing a duty of care were met. in the case of a reach of trust . the damages. .

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

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

. whether actionable as an injury or not. trespass to land is actionable even though no damage has been caused as a result of the trespass. . for which damages are claimed by the latter against the former. a tort consists of some act done by a person who causes injury to another. The word damage is used in the ordinary sense of injury or loss or deprivation of some kind.loss or damage to the plaintiff. while damage means loss or harm occurring in fact. actionable without the proof of any damage or loss. those torts which are actionable per se.In general. The real significance of a legal damage is illustrated by two maxims. Injuria Sine Damno Injuria Sine Damno (a latin maxim) means violation of a legal right without causing any harm . Damnum Sine Injuria and Injuria Sine Damno. i.e. Damages are claimed and awarded by the court to the parties. There are two kinds of torts: Firstly. In this connection we must have a clear notion with regard to the words damage and damages. namely. For instance. The word injury is strictly limited to an actionable wrong. whereas damages mean the compensation claimed by the injured party and awarded by the court.

At the time. • “Ashbey v White” (1703) 2 Lord Raym. For a successful action the onle thing which has to be proved is that the plaintiff’s legal right has been violated. Mr White. not the courts.Secondly. on the apparent pretext that he was not a settled inhabitant. i. In such cases there is no need to prove that as a consequence of an act the plaintiff has suffered any harm. It was later known as the Aylesbury election case. the case attracted considerable national interest. the torts which are actionable only on the proof of some damage caused by an act. 938 is a leading case explaining the maxim injuria sine damno.e. 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. Sir Thomas Powys defended William White in the House of Lords. thereis injuria. Facts Mr Ashby was prevented from voting at an election by the misfeasance of a constable. The argument submitted was that the Commons alone had the power to determine election cases. against Tory insistence on the privileges of the House of Commons. .. and debates in Parliament. Injuria sine damno covers the first of the abovestated cases.

494. 50.I. but his dissent was upheld by the House of Lords by a vote of fifty to sixteen. 1986 S.C. By the time the petition was decided by the upreme Court Bhim Singh had been released. His judgment reads as follows. an MLA of J & K Assembly. to another person is not actionable in law unless there is also violation of a legal right of the plaintiff. There was also violation of fundamental right to personal liberty guaranteed under Article 21 of the Constitution. • In Bhim Singh v State of J & K . As a consequence of this the member was deprived of his constitutional right to attend the Assembly session. was wrongfully detained by the police while he was going to attend the Assembly session . . A. however substantial.000 were awarded to him. Damnum Sine Injuria It means damage which is not coupled with an unauthorised interference with the plaintiff’s lawful right. the petitioner. This is generally so when the exercise of legal right by one results in consequential harm to the other. Causing of damage. but by way of consequential relief exemplary damages amounting to Rs.R. It was held that the defendant was liable. He was not produced before the magistrate within requisite period.Judgment Lord Holt CJ was dissenting from the judgment in the Court of King's Bench.

” • Gloucester Grammar School Case (1410) Y. or does any nuisance of the like sort. Because of the competition the plaintiffs had to reduce their fees from 40 pence to 12 pence per scholar per quarter. contracted dermatitis as a result of wearing woolen underpants which had been manufactured by the defendants (Australian Knitting Mills Ltd). if the act is deliberate . I shall have no action against him.36 There the defendants . 209 The case Dr Grant.p 21. a schoolmaster. said:” Damnum may be abseque injuria. the party injured will have no claim in law even though the injury is intentional . The Privy Council held that the defendants were liable to the plaintiff. Hill 11 Hen . Hankford J. set up a rival school to that of the plaintiffs.. Upon purchase.• Grant v Australian Knitting Mills (1935) All E. the plaintiff. It was held that the plaintiffs had no rememdy for the loss thus suffered by them .” .B.R. -“ The mere fact that a man is injured by another’s act gives in itself no cause of action. as if I have a mill and my neighbour builds another mill whereby the profit of my mill is diminished . But if a miller disturbs the water from going to my mill. although I am damaged …. The garment in question contained an excess of sulphite. 4 of 47. so long as the party is exercising a legal right. I shall have such action as the law gives. he wore them for one entire week without washing them beforehand.

AIR 1978 . The house of Lord’s 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. held that the acts were with a lawful object of protecting and increasing the associations profits. 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. they would have to give notice. Gow & Co Facts A group of ship owners formed an association to raise their profits. Judgment The House of Lords.Mogul Steamship Co Ltd v McGregor. If any member wished to withdraw. 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. Because no unlawful means had been employed. When it sent ships to the loading port to pick up cargo. affirming the Court of Appeal's decision. Mogul Steamship Co Ltd had no cause of action. the association sent more ships and underbid Mogul Steamship Co Ltd. to give a 5% rebate on freights to all shippers of stock who dealt only with members. The association agreed to limit the number of ships sent by the association to different ports. Mogul Steamship Co Ltd had been excluded.

and Parvati in bad light. less than 20 years old. (1848) 12 M & W 324 The defendants by digging a coalpit intercepted the water which affected the plaintiff’s well. at his free will and pleasure.” • Chesmore v Richards (1859) 7 H. and that if in the exercise of such rights he intercepts or drains off the water collected from underground springs in the neighbour’s well. It was contended that the movie depicts the goddesses Laxmi. Saraswati. It was held that hurt to religious sentiments is not recognized as a legal wrong. but not flowing in defined . • Acton v Blundell . at a distance of about mile. Held. they were not liable. an injunction was not granted. may dig therein and apply all that is there found is to his own purposes. a millowner. Since there was no violation of a legal right.L.Plaintiff sought a permanent injunction against the cinema house to restrain them from showing the movie Jai Santoshi Maa.C. which is offensive to the plaintiff. this inconvenience to his neighbour falls within description damnum abseque injuria which cannot become the ground of action. It was observed: “The person who owns the surface. 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. 349 The plaintiff.

but to compel them to purchase his land. His right is the same whatever his motive may be. For this the defendants were held not liable. thereby causing loss to the plaintiff. Held: Defendant has the right to divert or appropriate the water within his own land so as to deprive his neighbour of it. whether genuinely to improve his own land. The defendants sunk a well on their land and pumped large quantities of water .” • Bradford Corporation v Pickles [1895] HL Defendant owned land containing underground streams which fed C's (Bradford Corporation) waterworks. or maliciously to injure his neighbour. Defendant began to sink shafts for the alleged purpose of draining certain beds of stone. 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. The effect of Defendant’s operations was to affect seriously the supply of water to appellant’s springs.channels. The corporation alleged that defendant was not acting in good faith. or to induce his neighbour to buy him out. which would otherwise have gone to the plaintiff’s stream. .

The Allahabad High Court held that the demolition of a building.I. therefore . The plaintiff suaed the defendants contending that the officers of the Town Area Committee had acted maliciously in getting the construction demolished.P. mere act of a person is not enough create his liability .R. A man. under criminal law. A. 2. 1975. . Municipalities Act. In its legal sense it means a willful act done without just cause or excuse and it it known as ‘malice in law’. All 132 The defendant demolished certain constructions which had been erected without complying with the provisions of the U. is not ordinarily punishable for something which he never meant. illegally constructed was perfectly lawful and the question whether the act was done maliciously or not was considered to be irrelevant. In it narrow and popular sense it means an evil motive. and the same is known as ‘malice in fact’. Mental Element In Tortious Liability Mental element is an essential element in most of the forms of crime.• Town Area Committee v Prabhu Dayal . Malice in Law and Malice in Fact The term ‘malice’ has been used in 2 different senses: 1. Mens rea or a guilty is also required. Generally. or the consequences of which he could not foresee.

retiring her prematurely from service. 1976. therefore. She was working as Joint Director.C. when she was served with an order dated March 26.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. or for want of reasonable or probable cause. with immediate effect.R. He may. thus. Venkataraman v. be guilty of malice in law. on the ground that she had already .” 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. Union of India A. and he must act within the law.” Malice in its legal sense. he is taken to know the law. means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse. 1979 S.R. 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. so far the state of his mind is concerned. Family Planning.I. • Smt S. in the Directorate General of the All India Radio. although. the acts ignorantly and in that sense innocently.

D. according to her. It was particularly pointed out 'that as she was confirmed in the post of Director on April 28. with retrospective effect from July 10. 1976. 1973. rather than a bad motive or feeling of ill-will. She therefore filed a writ petition in the Delhi High Court under Article 226 of the Constitution in which she. Vyas who took over as Chairman of the Central Board of Film Censors from her on February 11. 1976. and that the retiring authority had not "applied its mind to the record" of her case. in an action for defamation it may be mentioned that the alleged statement was published falsely and ‘maliciously’. and that the order of premature retirement was not in public interest but was "arbitrary and capricious". 1972. were "totally unfounded. biased. malicious and without any justification". For example. 1972." It was also contended that some baseless allegations were made against her because of "malicious vendetta" carried on by Vyas. but it was rejected on July 1. and the President was of the opinion that her retirement was in the "public interest".attained the age of 50 years on April 11. The appellant made a representation on April 6. 1970. inter alia. made a mention of the hostile attitude of one V. 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. any advers Malice in law simply means a wrongful intention which is presumed in case of an unlawful act. Here it simply means that the statement is false and is also made without lawful justification. 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. Malice in Fact (Evil Motive) .

A wrongful act does not become lawful merely because the motive is good.C. Similarly. the owners of coalmines. a miner’s union. 239 In this case the plaintiffs. a lawful act does not become wrongful because of a bad motive. The house of Lords held the defendants liable. • South Wales Miners Federation v Glamorgan Coal Company (1905) A. . or malice. When the defendant does a wrongful act with a feeling of spite. It is different from intention. the motive for the theft may be to buy food for his children or to help a poor man. brought an action against the defendants. Motive means an ulterior reason for the conduct. which relates to the wrongful act itself. The immediate intention of a person may be to commit theft. for inducing its workmen to make the breach of contract of their employment by ordering them to take certain holidays.In its popular sense or as ‘malice in fact’ or ‘actual malice’ it means an evil motive for a wrongful act. vengeance or ill will the act is said to be done ‘maliciously’. 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 person’s liability in the Law of Torts. 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.

occupied by the plaintiff. It was found that not only the tap on the upper floor waslest fully open. 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. There was evidence of ill-will between the plaintiff and the defendant. Balak Glass Emporium v United India Insurance Co.I. under the control of the defendant escaped to the lower floor. . conspiracy. When the act is otherwise unlawful and the wrongful intention can be gathered from the circumstances of the case.R. 1975 All 132 In a multistoreyed building the water from the upper storey.Exceptions to the rule In the following cases the malice or evil motive becomes relevant in determining liability under the law of torts: 1. that the said act was done by the defendant with wrongful intention. Ltd. when qualified privilege or fair comment is pleaded as a defence. 3. malicious prosecution and injurious falsehood. A. The defence of qualified privilege is available if the publication was made in good faith. In the torts of deceit. In certain cases of defamation. motive becomes relevant. but the outlet of the tank was also closed. one of the essentials to be proved by the plaintiff is malice on the part of the defendant. 2. and hence the plaintiff was held entitled to get damages for the same. There was only one inference.

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

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