Law of Torts

Module 1
Nature and Concept of Tort
Tort is violation of legal right of a person or breach of duty by one person
towards the other.
A tort is derived from the Latin word ‘tortum’ which means wrong or crooked.
The equivalent word in English is wrong. Thus, tort is a civil wrong for which
the remedy is action for unliquidated damages.

What is Tort Law?

The civil wrong surfaces as a result of the breach of a duty imposed by
law
. 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.

Thus there are, for example, duties not to assault another person, not to trespass (entering onto land without
the consent of the landowner) on another’s land, not to take another’s goods, and to take care to not injure
one’s neighbour.

Some duties are laid down by legislation; others are found in the common law. The emphasis on the nature
of tort as a civil wrong differentiates it from crime.

Characteristics of a Tort1
1. Tort is a private wrong that contravenes the legal right of an individual or a group.
2. The person who engages in tort is called “tort-feasor” or “Wrongdoer”.
3. The place of trial for tort is Civil Court.

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%20notorious%20or%20twisted.&text=The%20nature%20of%20Tort%20law,of%20another's%20acts%20or%20omissions.
 4. Tort litigation is compoundable which means that the complainant can withdraw the suit filed by him.
5. Tort is a specie of infringement (the act of breaking the terms of a law, agreement, etc.; violation) of a
person’s rights or civil wrong.

Is It Law of Tort or Law of Torts2

The billion dollar question is, " whether it is a law of tort or only a law of torts?" There are two competing theories in this
regard. According to one theory, there is a general principle that all wrongs are actionable as tort unless there is any legal
justification. The other theory says that there is no general principle of liability as such but only a definite number of torts
as trespass, negligence, nuisance, defamation etc. and the plaintiff has no remedy unless he brings his case under one of
the nominate torts.

It Is Law of Torts:

According to Salmond
“Tort is a civil wrong for which the remedy is a
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http://www.legalserviceindia.com/legal/article-396-is-it-law-of-tort-or-law-of-torts.html
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.

Salmond say there is no law of tort, but there is law of torts. According to him the liability under this branch of law arises
only when the wrong is covered by any one or other nominate torts. There is no general principle of liability and if the
plaintiff can place his wrong in any of the pigeon-holes, each containing a labelled tort, he will succeed. This theory is also
known as ‘Pigeon-hole theory'. If there is no pigeon-hole in which the plaintiff's case could fit in, the defendant has
committed no tort.
According to Salmond, the law of torts may be described as a " a neat set of pigeon- hole,each containing a specific
labeled tort."also he propounded that "just as the criminal law consists of a body of rules establishing specific offences, so
the laws of torts consists of a body of rules establishing specific injuries."

It Is Law of Tort:
Winfield’s definition of tort is:
“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.”

This theory was propounded by sir Frederick Pollock in 1887 and was vehemently supported by Winfield . he is the chief
supporter of this theory. He says, all injuries done to another person are torts, unless there is some justification
recognized by law. Thus according to this theory tort consists not merely of those torts which have acquired specific
names but also included the wider principle that all unjustifiable harm is tortuous. This enables the courts to create new
torts. Winfield while supporting this theory comes to the conclusion that law of tort is growing and from time to time
courts have created new torts.

Supporters of This Theory: The theory given by Winfield has been supported by many eminent Judges both ancient and
modern. Following are some examples:-
· HOLT, C.J. clearly favoured Winfield's theory, by recognizing the principle of ubi jus ibi remedium. He said that, if man
will multiply injuries, actions must be multiplied too; for every man who is injured ought to have recompense [Ref.
case- Ashby v. White (1703) 2 Ld. Raym. 938].

The tort of strict liability had its origin in Rylands v. Fletcher (1868) LR 3 HL 330.
From the above mentioned cases it is clear that the law of tort is steadily expanding and that the idea of its being in a set
of pigeon-holes seems to be untenable.

Winfield's Theory And Indian Judiciary: Indian judiciary has also shown a favour to Winfield's theory. In the words of
Justice BHAGWATI, C.J., 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 constricted by
reference to the law as it prevails in England... we are certainly prepared to receive light from whatever source it comes
but we have to build our own Jurisprudence. In the same case the Supreme Court of India established the concept of
ABSOLUTE LIABILITY in place of strict liability [Ref. case- M.C. Mehta v. Union of India, AIR 1987 SC 1086].

Difference between Tort and Crime

Tort Crime

Private Wrong Public Wrong

Breach of Private Duties Breach of Public Duties

Object of action is punishing the

Object of action is compensation
wrongdoer

They are generally not

They are compoundable
compoundable

Individual has to approach a Civil State initiates prosecution against

Court for redressal the wrongdoer

It is uncodified It is codified
 Difference between Tort and Contract

Differences Between Contract and Tort

The main differences between contract and tort are as expounded below:

1. Meaning of Contract and Tort

A contract means a promise or set of promises that the law can or will enforce if any eventuality
arises while tort means a collection of legal remedies that entitle an affected party to recover from
losses, injuries, or damages. Tort covers such damages that may have been as a result of omissions,
actions, or statements made by another party in such a way that it was regarded as a breach of
their duty or obligation.
2. Rights

In contract law, the obligations, as well as rights, are as a result of the acts of agreement among the
parties involved while in tort, the court usually creates the obligations and rights and applies the
common law.

3. Duties

In contract law, the parties chiefly determine the duties while in tort, the law determines the
duties. This means that the parties can decide to be or not be bound under the contract, but they
cannot choose whether they will be bound under the law or not.

Also, duties in contract are commonly towards definite or specific persons while duties in tort are
generally owed to persons or community at large.

4.Minors

A minor can be made liable for their torts, but they are limited in liability when it comes to
contract. This means the minor can be sued under torts and the damages will be paid from their
property.
5. Privity

In tort, privity does not exist nor is it needed because harm is always done against the injured
party’s will. On the contract’s side, privity must exist which means the parties involved have to be
legally bound to each other.

6.NATURE

TORT IS RIGHT IN REM CONTRACT IS RIGHT IN PERSONAM

7. Damages

Tort laws award damages as either real, contemptuous, or exemplary unliquidated while contract
laws award liquidated damages. Contract law rarely awards exemplary damages.

8.Limitation Period

In torts, the limitation period will run from the time the damage was done while in contract,
the period runs from the day date the contract was breached
 9. CODIFICATION:
CONTRACT IS CODIFIED TORT IS UNCODIFIED.
Damnum Sine injuria & Injuria Sine Damnum3

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The law of torts is a collection of all the circumstances in which court gives a remedy by way of damages, for legally
unjustified harm or injury done by one to another person. There are three elements which need to be proved before
constituting a tort:-

1. There must be an act or omission on the part of the defendant.

2. That act or omission should be in violation of a legal right vested in the plaintiff.
3. The wrongful act or omission thus done by the defendant is of such a nature to give rise to a legal remedy.
Both the maxims are divided into three parts as follows:-

 Damnum/Damno means substantial harm, loss or damage with respect to the

money, health, etc.
 Injuria means an infringement of a right given by the law to the plaintiff.
 Sine means without.

Damnum Sine Injuria

Damnum sine Injuria is a legal maxim which refers to as damages without injury or damages in which there
is no infringement of any legal right which are vested with the plaintiff. Since no legal right has been
infringed so no action lies in the cases of damnum sine injuria. The general principle on which this maxim
is based upon is that if one exercises his common or ordinary rights, within reasonable limits, and without
infringing other’s legal right; such an exercise does not give rise to an action in tort in favour of that other
person. Damages can be in any form either in the form of any substantial harm or loss suffered from respect
to the money, comfort, health, etc.

 It is an implied principle in law that there are no remedies for any moral wrongs, unless and until any
legal right has been infringed. Even if the act or omission such done by the defendant was intentional,
the Court will not grant any damages to the plaintiff. As was cited in the case of Mayor & Co. of
Bradford vs. Pickles (1895) in which the corporation of Bradford filed a suit against the defendant
alleging that the act of defendant by digging a well in the adjoining land owned by the defendant has
cut the underground supply of water in the corporation’s well hence causing them monetary losses
since there was no adequate supply of water to discharge for the people living under the jurisdiction of
the corporation. It was held that the defendant is not liable since they had not violated any legal right of
the plaintiff.
 In another case of Gloucester Grammar School (1410) in which a schoolmaster, set-up a rival school
to that of the plaintiff and since because of the competition the plaintiff had to reduce their fees from
40 pence to 12 pence per quarter. Thus claimed for compensation from the defendants for the losses
 suffered. It was held that the plaintiff had no remedy for the losses suffered, since the act though
morally wrong has not violated any legal right of the plaintiff.
 The court presumes in cases where the legal right has been infringed that damages have to be
awarded, but in cases where no legal right has been infringed, the maxim Damnum sine Injuria applies
& no remedies are available for the same. So, it can be rightly said that an act which is lawfully or
legally done, without negligence, & in the exercise of a legal right, such damages as comes to another
thereby is damage without injury.

Injuria Sine Damnum

 Injuria sine damno is a violation of a legal right without causing any harm, loss or damage to the
plaintiff and whenever any legal right is infringed, the person in whom the right is vested is entitled to
bring an action. Every person has an absolute right to his property, to the immunity of his person, and
to his liberty & infringement of this right is actionable per se. A person against whom the legal right
has been infringed has a cause of action such that even a violation of any legal right knowingly brings
the cause of action. The law even gives the liberty that if a person merely has a threat of infringement
 of a legal right even without the injury being completed, the person whose right has been threatened
can bring a suit under the provisions of Specific Relief Act under Declaration and injunction.
 For Example:- If a person is wrongfully detained against his will, he will have a claim for substantial
damages for wrongful imprisonment even if no consequential loss was suffered upon the detention.
 As was cited in the case of Ashby Vs. White (1703) wherein the plaintiff was a qualified voter at the
parliamentary elections which were held at that point of time. The defendant, a returning officer
wrongfully refused to take the plaintiff’s vote. The plaintiff suffered no damage since the candidate
which he wished to vote already won the elections but still, the defendants were held liable. It was
concluded that damage is not merely pecuniary but injury imports a damage, so when a man is
hindered of his rights he is entitled to remedies.
 Injuria sine Damno is even applicable in the cases of trespass as was observed in the case of Sain Das
Vs. Ujagar Singh (1940) that nominal damages are usually awarded and the principle of injuria sine
damno is applicable to an immovable property when there has been an unjustifiable intrusion on the
property in possession of another. It was also concluded that the rule cannot be extended to every case
of attachment of property irrespective of the circumstances.
In Bhim Singh v. State of Jammu & Kashmir, the petitioner was MLA of Jammu and Kashmir
parliamentary assembly. While he was on his way to attend the parliamentary session he was wrongfully
arrested by a police officer and he was restrained from attending the parliamentary session. He was not
presented before the magistrate in time and he had a legal right to attend the meeting. His fundamental right
under Article 21 of the Constitution was also violated. At last Supreme Court held that the defendants were
responsible and awarded Rs.50,000 as compensation to the petitioner for the infringement of his
fundamental right.4

 So in total, the maxim Injuria Sine Damno refers to the remedies which are provided in the form of
damages or compensation in violation of any legal right such that if the legal right is violated then
action lies even if there is no harm to another. In other words, it is an infringement of a right where no
loss is suffered but it creates a cause of action.

 Difference between Damnum Sine Injuria & Injuria Sine

Damnum5
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https://blog.ipleaders.in/ubi-jus-ibi-remedium/
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S.N
Damnum Sine Injuria Injuria sine Damnum
o

Damnum sine Injuria refers to the

damages suffered by the plaintiff
Injuria Sine damnum is the legal injury caused to the
1. but no damage is being caused to
plaintiff without any damage to the physical injury.
the legal rights as there is no
violation of it

It is the losses suffered without the It is an infringement of a legal right where even if no
2. infringement of any legal right loss has been suffered by the plaintiff still creates an
hence creating no cause of action. actionable cause of action.

No compensation in the form of Compensation in the form of damages is awarded by

3.
damages is awarded by the court. the court.

This maxim is for the moral wrongs This maxim is for the legal wrongs which are
4. which have no action in the eyes of actionable if the person’s legal right has been
the law. violated.
 The principle of this maxim is that
a person exercises in such a The principle of this maxim is that whenever there is
manner within reasonable limits an invasion of a legal right there creates a cause of
5.
which does not ground action in action and the person whose right is vested is
tort merely because it causes entitled to bring an action.
damages to other people

In this, the plaintiff suffers a loss In this, the plaintiff suffers legal injury doesn’t
6.
but has suffered no legal injury. matter they have suffered any loss on that account.

Damages without injury are not This is actionable since there is a violation of a legal
7.
actionable right.

Ubi jus ibi remedium6

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It is a Latin maxim which means that where there is a wrong, there is a remedy. If any wrong is committed
then the law provides a remedy for that. The maxim can be phrased as that any person will not suffer a
wrong without a remedy, it means that once it is proved that the right was breached then equity will provide
a suitable remedy. This principle also underlines the fact that no wrong should be allowed to go without any
compensation if it can be redressed by a court of law. The law presumes that there is no right without a
remedy; and if all remedies are gone to enforce a right, the right in point of law ceases to exist.

Injury (an infringement of a legal right)

1. Without damages( Ashby vs white discussed already)

2. With damages (Donoghue v Stevenson ) 7

"snail in the bottle" case, the case involved Mrs Donoghue drinking a bottle of ginger beer in a café in Paisley, Renfrewshire. A
dead snail was in the bottle. She fell ill, and she sued the ginger beer manufacturer, Mr Stevenson. The House of Lords held
that the manufacturer owed a duty of care to her, which was breached, because it was reasonably foreseeable that failure to

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 ensure the product's safety would lead to harm to consumers. There was also a sufficiently proximate relationship between
consumers and product manufacturers.

Development of Ubi jus ibi remedium

The law of tort is said to be the development of the maxim Ubi jus ibi remedium. The word “jus” means
legal authority to do something or to demand something. The word “remedium” means that the person has
the right of action in the court of law. The literal meaning of the maxim is where there is a wrong there is a
remedy.

This maxim also says that there is no remedy without any wrong and the persons whose right is being
violated has a right to stand before the court of law. This principle also states that if the rights are available
to a person then it is required to be maintained by that person only and remedy is available only when he is
injured in the exercise of duty or enjoyment of it; It is useless to imagine and think a right without a remedy.
It is necessary to keep in mind that both rights violated and the remedy sought or to be obtained should be
legal. There are many moral and political wrong but are not actionable or it does not give many sufficient
reasons to take legal action as they are not recognized by law. The maxim does not mean that there is a legal
remedy for each and every wrong committed.

For example, a contract which was required to be made on stamped paper may be made orally; in such
circumstances, irrecoverable harm may be caused to other person and yet no legal remedy is available.

Thus, the maxim does not mean that there is a remedy for every possible wrong. It is appropriately said
by Justice Stephen that maxim would be correctly stated if maxim were to be reversed to say that “where
there is no legal remedy, there is no legal wrong.

Ashby Vs. White

Sain Das Vs. Ujagar Singh

Bhim Singh vs St. of J & K

Gloucester Grammar School case

Mayor & Co. of Bradford vs. Pickles

Donoghue v Stevenson

Rylands v Fletcher

Where there is a right, there is a remedy

Law of equity highlights the facts that if there is a breach of right then the right which is breached is
incomplete without availability of proper remedy. The common laws were restricted to a limited number of
remedies until the concept of law of equity was developed. In case of breach of rights, there are only a few
writs which can be filed and if in any case the suit is not covered under the writs then the suit will be
dismissed. There are so many rights available but no remedy is available in case of its breach. To remove
this deficiency the concept of a court of chancery came into existence and have the jurisdiction to decide
matters relating to equity and justice.

Essentials of Ubi jus ibi remedium

  The maxim ubi jus ibi remedium can be applied only where the right exists and that right should be
recognized by the court of law;
 A wrongful act must have been done which violates the legal rights of a person clearly.
 This maxim is applicable if any legal injury had been caused to any person, if no legal injury has
been caused then the maxim damnum sine injuria will be used which means damage without any
legal injury.


JUSTIFICATION IN TORT/GENERAL DEFENCES

OF TORTIOUS LIABILITY
INTRODUCTION

Before proceeding ahead, it is necessary to evaluate the situation in which the defence can be used in any tort case. It is
therefore, necessary to understand the word ‘defence’. What it actually means? In legal sense, the word ‘defence’ is used to
refer to those arguments which when used persuades the court to conclude that defendant is not guilty.

While talking about General defences in tort, it is a set of ‘defences’ or ‘excuse’ that you can undertake to escape liability in
tort only if your actions have qualified set of conditions that go with these defences, when the plaintiff brings an action
against defendant for a tort, providing the existence of all the conditions of the tort that the defendant will be liable for the
same. The defendant may also in such condition avoid the liability by taking plea of defence. They are the rules of
immunity that limit the rules of liability in tort.

Now we should see some of the recognised defences to any tort. Defences are been stated below:-

1. Volenti non fit Injuria or Defence of Consent

2. When plaintiff is the wrongdoer
3. Private defence
4. Act of God
5. Inevitable accident
6. Necessity
7. Statutory Authority
8. Mistake

9. Judicial Acts /Quasi Judicial Act/Executive Act

10. Parental/ quasi parental Act

Defences discussed in detail are as follows:-

1.Volenti non fit injuria or Consent

If a plaintiff has consented to a wrongful act with free consent, under no pressure of fraud or coercion with voluntary
acceptance of risk, then he has no right to sue the defendant in which both consented.Consent occurs when plaintiff
displays willingness in defendant’s conduct. Therefore, no man can enforce a right for which he has voluntarily
 waived or abandoned.
For example:- The person bought a ticket to watch a match and itself he agreed or consented to suffer any harm or
damage which may be caused while watching a match and therefore he cannot sue the stadium authorities for the
cause or liability been arises out of the incident.

Elements of Volenti non-fit injuria8

For the application of the defence of volenti non fit injuria there are some essential elements or conditions which should
be present in a case and only when they are fulfilled, this defence can be taken to prevent liability.

There are 2 essential elements in this defence:

1. The plaintiff has the knowledge of the risk

2. The plaintiff with the knowledge of risk has voluntarily agreed to suffer the harm.
Thus, whenever the plaintiff is aware of the possibility of harm which is likely to be caused by an act and when he still
accepts to do that act and therefore agrees to suffer the injury, a defendant is relieved of his liability.

But only having knowledge about the risk is not enough for the application of this defence, It is known as Scienti
non fit injuria, which means that mere knowledge does mean consent to the risk. Thus having knowledge is
only a partial fulfilment of the conditions for the application of volenti non fit injuria.

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%20care.&text=The%20consent%20of%20the%20plaintiff,willing%20person%20no%20injury%20happens.
Illustration: A goes for bungee jumping and he knows that he might get injured by it but he still decides to do it and
as a result, he suffers injury despite all the necessary care being taken by the organisers. Here A cannot claim damages
from the organisers because he had full knowledge of the risks and he had voluntarily agreed to suffer that injury by
choosing to do bungee jumping.

In Smith v. Baker & sons, (1891) AC 325 , the plaintiff was an employee of the defendant and the site
where he used to work had a crane which carried rocks over their heads. The plaintiff had also complained to the
defendant about it. One day the plaintiff was injured because of these rocks falling on him and thus he sued the
defendant for damages. It was held that the defendant was liable and had to pay damages to the plaintiff because the
plaintiff had consented to the danger of the job but not to the lack of care.

Bowater v Rowley Regis Corporation9

Facts
The plaintiff was a carter employed to go around the streets and collect road sweepings. For this purpose, he was provided with a
horse and a cart by his employer – a municipal corporation. The plaintiff was ordered by his foreman to take out a horse, for which
it was known to both of them that it was unruly and had run away on two occasions when another employee was working with him.
The carter protested, but he was told that this was an order of the borough surveyor and eventually agreed to take out the horse in
question. A few weeks later, the horse ran away and the plaintiff was thrown from the cart and suffered personal injuries. The
plaintiff brought an action against the municipal corporation for failure to provide him with a horse that was safe and suitable for
the work he had to perform.
Held
The decision was in favour of the plaintiff.
(1) The defendants are guilty of negligence.
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(2) The defence of volenti non fit injuria is not applicable to this case as it does not apply to occupations that are not inherently
dangerous such as working in an explosive factory

Dann v Hamilton10
Facts
The plaintiff, knowing that the defendant was drunk and that a road traffic accident was highly likely as a result, chose to travel by
the car despite being under no compulsion to do that driven either by necessity or something else. An accident occurred on the
road, which was caused by the driver’s drunkness and the plaintiff was injured. She sued the driver’s personal representative – the
defendant, for damages. In the action against him, the personal representative raised the defence of volenti non fit injuria.
Issue
Can the defence of volenti non fit injuria be used in order to preclude from remedy a person who has voluntarily accepted the risk
which arises from a driver who is driving a car under the influence of alcohol?
Held
The decision was in favour of the plaintiff.
(1) Applying Smith v Baker & Sons [1891] AC 325, except in extreme cases, the defence of volenti non fit injuria does not apply to
the tort of negligence so as to preclude from remedy a person who has knowingly or voluntarily accepted the risk which arises from
a driver who is driving a car under the influence of alcohol.
(2) The present case is not one of the extreme cases.
(3) The doctrine of volenti non fit injuria applies to negligence only in cases where the plaintiff by his words or conduct has
impliedly agreed to absolve the defendant from liability.

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Consent of the plaintiff
The consent of the plaintiff is very important in the defence of volenti non fit injuria because only when he voluntarily
gives his consent to an act, the defendant can take this defence.

In the case of Hall v. Brookland (1932) All E.R. Rep 208 , the plaintiff went to see a car race in which two
cars collided with each other and as a result of the collision, the plaintiff who was sitting as an audience was also
injured when one of the cars flew into the audience. Here the defence of volenti non fit injuria was applied because the
plaintiff had given his consent to such a risk by going to the race.

Consent may be Express or Implied

In the cases of this defence, the consent of the defendant is not required to be expressly given and even by his
conduct, his consent can be taken.

Illustration: C is a cricket player and due to a full toss ball he gets hits by it on his shoulder. Here C cannot claim any
damages because C has consented to the risk by agreeing to play cricket.

Illustration: A goes to watch a cricket match and while watching the match the batsman hits a six that hurts A’s
hands when he attempts to catch it. Here A cannot hold the batsman or the owner of the Cricket stadium liable because
he had impliedly consented to this injury by his act of purchasing the ticket and sitting in the stadium and thus despite
no express consent, the defence of volenti non fit injuria will apply here and his consent will be deemed to be implied
for such injury.

Consent of the Plaintiff must be free

In the case of 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.

Consent by fraud/undue influence

In cases of consent having been obtained by fraud, the defence of volenti non fit injuria will not apply and the
defendant will be held liable for the wrong by him.

For e.g., in the case of R v. Williams (193) 1 KB 340, the defendant was a singing coach and he had convinced a 16-
year-old student to have sexual intercourse with him by telling her that it will help her in improving her voice and
singing. The defendant was held liable by the Court because the consent was obtained by fraud.
Manu vs uma dutt pandey

Limitations/EXCEPTIONS on the application of volenti non fit

injuria11
There are certain limitations under which the defence of volenti non fit injuria cannot be taken by a defendant even if
the essentials of this defence are present in the case.

Rescue Cases
When the plaintiff suffers an injury as a result of him doing an act which he knows is likely to cause harm to him but it
is an act to rescue someone, then this defence will not apply and the defendant will be held liable.

Illustration: A fire is caused due to the negligence of A, and B is trapped inside the fire. C sees B and jumps into the
fire to rescue him but in doing so he is also burned. Here even though C went into the fire voluntarily, knowing fully
well that he may be burned, A will be held liable for negligence and the defence of volenti non fit injuria cannot be
applied in this case, therefore, C will is entitled to receive damages from A.

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%20care.&text=The%20consent%20of%20the%20plaintiff,willing%20person%20no%20injury%20happens.
In the case of Haynes v. Harwood (1935), 1 KB 146, the servant of the defendant brought two horses
in the town near a police station and left them to do some other work. The horses were upset by the children and they
broke free, seeing them in rage the plaintiff who was a police officer went to stop the horses and in doing so he got
injured and brought a case against the owner for damages. The court held the defendant liable because the defence of
volenti non-fit injuria did not apply in a rescue case.

Illegal Acts
If the consent is given for an act which is not allowed by law then, even on the fulfilment of all the essential conditions
of this defence, the liability cannot be escaped and thus in such cases, this defence becomes inoperative.

Illustration: If A and B decide to do a fight with sharp swords, when such an act is prohibited by law, and A suffers a
big cut due to which he suffers serious injuries, then in such case B cannot take the defence of having A’s consent in
doing this act because it was prohibited by law and thus B will be liable.

Negligence of the defendant

The defence of volenti non fit injuria is not applicable in a case where the defendant has been negligent. Thus only
where there is no negligence by the defendant, he can claim this defence to escape liability.

Illustration: If A goes undergoes a heart operation and he gives his consent for it even though he knows that there is
a risk of the operation failing which can cause his death, the surgeon will not be liable if A dies as a result of the
surgery if he had taken all due care. But if the operation had failed because of the negligence in carrying out the
surgery then in such a case, the surgeon cannot claim the defence of having received the consent of A and he will be
liable because there was negligence on his part in conducting the surgery.

2. When plaintiff is the wrongdoer

The law excuses the defendant when the act done by plaintiff itself was illegal or wrong. This defence arise from the maxim
“ex turpi causa non oritur action” which means no action arises from an immoral cause. So an unlawful act of plaintiff
might lead to a valid defence.
If the defendant states that the claimant himself is the wrongdoer and is not entitled for the damages, then it does not mean
that the court will leave him free from the liability but he will not be liable under this head.

3. Private Defence
Private defence is also defined under Indian penal code in general exception chapter. Private defence means to save
your body and property from any injury which is going to be caused by act other. Therefore, private defence is
distributed between two kinds first one is private defence as to body and second one is private defence is to
property . These kinds of private defences have not been defined under the law of tort. But it has been specifically
mentioned that if any kind of injury going to be caused by one person against another person then any of them can
 used reasonable force so as to protect himself and his property, but the force should be reasonable one. If the
excess force has been used by another person so as to save himself or his property than it is not comes under
justification for law of torts.

Cherubin Gregory v. State of Bihar, 196412

Here the deceased was using the latrine/ toilet of the accused for about a week. The accused gave the oral warnings
related to it to the deceased but the deceased continue to use the latrine of the accused. As he (accused) finds his oral
warnings to be insufficient so he put a naked copper wire carrying electricity on the passage leading to the latrine. On
the day of the occurrence of the incident, the woman went to the latrine of the appellant and there she touched the
fixed wire and she died because of this. There were several issues raised in this case. Here the Court held that the
mere fact that the person entering is a trespasser does not entitle the owner of the land to inflict personal injury upon
the trespasser. The same principle also applies to the fact that the owner inflicted the injury by indirect ways of doing
something. The owner should know that it may cause a serious injury to the trespasser.

Bird v. Holbrook in this case the defendant had put up a spring gun in his garden, but he has not fixed any notice to
a public about this. Plaintiff entered his garden and was seriously injured by automatic discharge of the spring gun. It was
held that the plaintiff is entitled for DAMAGES.

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 4 . Act of God
Act of God is also called as ‘Vis Major’. According to Sir Fredric Pollock “act of God” is an operation of natural
forces unexpected that no human forces or skill could reasonably be expected to anticipate, it .” Therefore, any acts
or incidents which are the result of natural forces and unconnected with the agency of the man are called as act of
God.

Some of the essentials of Act of God are:-

 The act should result from a natural force.

 Extraordinary in nature.
 No human intervention

There is a one leading case law which has speaks about act of God is Nichole v. Marsh Land in this case an
artificial lake was created on the defendant’s land due to storage of rainwater coming from natural stream. Once
there was an extraordinary heavy rain, which could never have been reasonably anticipated, as a result of which the
embankment of the lakes breasts out and water began to overflow plaintiffs land. The flow of water carried away for
breaches of plaintiff. It was held that the defendant was not liable as the loss was caused by an act of God which could
not be anticipated by the defendant .
Manindra Nath Mukherjee v. Mathuradass Chaturbhuj
Fact:
The defendant was the proprietor of a motion picture exhibition establishment called Rupali
cinema. On the roof of the building there were some posters and posters were displayed from
the sky-sign and were held against the galvanized sheeting. One day one of the banner fall
causes injury to the plaintiff.
Issue:
Act of god will be applicable or not?

Held that the fact that the velocity of the wind which caused the fall of the banner was less than 27 miles per hour itself showed that the
In the town of Calcutta in the monsoon
defendant was guilty of negligence in keeping the banner properly attached to the sky sign.
season stormy weather is not unusual and cannot be said to be unexpected that no human foresight could reasonably be
expected to anticipate it.and was, therefore, liable for damages.

5 . Inevitable Accident
An inevitable accident id a mishap. Its occurrence cannot be prevented despite taking degree of care and attention by an
ordinary and intelligent individual. It is therefore, a good defence if the defendant is capable of proving that he neither
intended to injure plaintiff nor could he avoid the injury by taking reasonable care. There is no inevitable accident unless the
defendant can prove that something happened over which he had no control and the effect could not have avoided.

Example : A, lost control of his bike because of barking dogs.

6. Necessity
If an act is done to prevent greater harm, even if the act was done intentionally is not actionable and serves as a good
defence. It gives a person or a state a privilege to use or take the property of another.

7. Statutory Authority
if an act is sanctioned by an Statutory enactment or law passes by legislature then the defendant could not be held liable
for the damages resulting in the course of an act.
The powers been given by the legislature should be exercised with caution so that no unnecessary damage is done and the
person must do an act in good faith and should not exceed the powers been granted by legislature.

8. Mistake
there is one important maxim which is speak about above point that is ‘ignorantia non juris execusant’ means ignorance of
law is not excusable. It means that mistake of fact is ignorable only but not mistake of law . Law has not given any excuse
to anyone regarding its ignorance. For example, if a person trespasses over the land of another he cannot take the
defence that he honestly believed that the land belongs to him. But if a person rather than entered into his own house
entered into adjacent house by mistake unintentionally is mistake of fact and ignorable under general exception.

9.Judicial Acts /Quasi Judicial Act/Executive Act

Judicial Act

All judicial officers, judges and magistrate are exempted from any liabilities of work done by them in discharge of their
judicial duties. This exemption is available to all the judicial officers and judges of subordinate courts and higher courts
of the country. This exemption has been given to all judicial members to discharge their duties independently and
without any fear and favour. The Indian Judicial Officers Protection Act, 1850 has been given exemption to all judges
from the actor performed during their course of duties are exempted from liabilities.

Quasi-judicial Authority

Quasi-judicial authority means which looks like judicial authority but not actually a judicial authority even acts like a
judicial authority. The authorities like, a club, university, medical Council etc. these institutions are given certain
authorities to perform act and if any injury is caused out of these acts it is exempted. For example, if club members
have decided to expel any member from membership of club for his misbehavior they can do so because this authority
has been given by their own rules.
 Executive Authority

Executive officers mean all executive bodies such as police officers, collectors etc. the state has given certain privileges
by the Constitution and the statutes to these executive officers. They can under exercise of their duties take away
rights of individuals without being liable for injury. For example, if the curfew has been declared by the collector so as
to maintain peace and security in a district but if public not come under the control then authority has been given to
the police officer to use reasonable force or lathi charge so as to disperse the unlawful assembly. For These kinds of
acts no action can be brought against this authority for injury done in exercise of their duty.

10.Parental and Quasi Parental Authority

Parental authority means authority given to the parents to use force against their children, but it should be
reasonable one. If parents using force against their children so as to teach them discipline it does a not amount to
tortious act but it can be exempted from tortious liability. In the same way there is certain quasi-parental authority
like teachers. Teachers are also given authority to use reasonable force against their student so as to make them a
good human being while doing so if injury has been caused then it is excused from liability.

Teacher stopping student from smoking.

Remedies Available in the Law of Tort

There are two broad types of remedies in Tort Law.
 1. Judicial Remedies
2. Extra-Judicial Remedies

Judicial Remedies
As the term suggests, these are the remedies that the courts of law provide to an aggrieved party. Judicial remedies
are of three main types:

1. Damages
2. Injunction

Extra-judicial Remedies
On the other hand, if the injured party takes the law in their own hand (albeit lawfully), the remedies are called extra-
judicial remedies. These are of five main types:

1. Expulsion of trespasser
2. Re-entry on land
3. Re-caption of goods
4. Abatement
 5. Distress Damage Feasant
Now, let us discuss both judicial and extrajudicial remedies in some detail.

Judicial Remedies
As the term suggests, these are the remedies that the courts of law provide to an aggrieved party. Judicial remedies
are of three main types:

1. Damages
2. Injunction

#1 Damages
Damages, or legal damages is the amount of money paid to the aggrieved party to bring them back to the position in
which they were, before the tort had occurred. They are paid to a plaintiff to help them recover the loss they have
suffered. Damages are the primary remedy in a cause of action for torts. The word “damages” should not be confused
with the plural of the word “damage”, that generally means ‘harm’ or ‘injury’.

Types of damages
 1. Nominal– Nominal damages are awarded when plaintiff’s legal right is infringed, but no real loss has been
caused to him. For example, in cases of trespass, when damage has not been caused, a legal right is still
infringed. Here, the objective is not to compensate the plaintiff.
2. Substantial-Substantial damages are said to be awarded when the plaintiff is compensated for the exact loss
suffered by him due to the tort.
3. Exemplary/Punitive– These are the highest in amount. Punitive damages are awarded when the defendant
has excessively been ignorant of the plaintiff’s rights and great damage has been caused to the defendant. The
objective here is to create a public example and make people cautious of not repeating something similar.

Remoteness of ‘Damage’
As discussed above, the main aim is to bring the aggrieved party back to the status quo, that is, compensating the
plaintiff. As a general rule, damage suffered by the plaintiff should be a direct consequence of the defendant’s act. Any
action can have multiple following consequences. A person cannot be held accountable for all the consequences
resulting from his act. The remoteness of consequences resulting from a person’s act has been an issue of debate in the
Law of Torts over the years. Various tests were developed over time to determine what consequences of an act can a
person be held liable for. When there is no cause and effect relationship between the defendant’s act and the injury
caused to the plaintiff, the damage is said to be too remote to be compensated.
Judges have used their discretion from time to time, and in that process, two formulas have been
highlighted:

1. The test of directness

2. The test of reasonable foresight

1. The test of directness

According to the test of directness, a person is liable for all the direct consequences of his wrongful act,
whether he could foresee them or not; because consequences which directly follow a wrongful act are not
too remote.

Smith v The London and South Western Railway Company: 1869

Workmen, employed by the defendant railway company to cut the grass and trim hedges bordering the railway, placed the
trimmings in heaps near the line, and allowed them to remain there for fourteen days, during very hot weather in the month
of August. Fire from a passing engine ignited one of these heaps, and burned the hedge, and was carried by a high wind
across a stubblefield and a public road, and burned the plaintiff’s goods in a cottage about 200 yards away. The question
was whether there was evidence of negligence to go before the jury. No one argued that the railway company was strictly
liable. Defendant were held liable

Re Polemis Case (Re Polemis & Furness, Withy & Co Ltd)

 In this case, Polemis, the plaintiff owned a cargo ship that they had chartered to the defendants. While
unloading cargo from the ship, the defendant’s employees accidentally knocked a plank into the ship, which
caused a spark to ignite, that resulted in an explosion. The question before the court was, whether the damage
due to the explosion was a direct result of the act of the defendant’s employee.

A negligent actor is liable for all direct results of the negligent act, even if they were not foreseeable before
the accident

2. The Test Of Reasonable Foresight

If the consequences of a wrongful act could be foreseen by a reasonable man, then they are not too remote.
If on the other hand, a reasonable man could not have foreseen the consequences, then they are too remote.
And, an individual shall be liable only for the consequences which are not too remote i.e. which could be
foreseen.

Wagon Mound Case (Overseas Tankship Ltd. v. Morts Docks & Engineering Co.)

. Overseas Tankship had a ship, the Wagon Mound, docked in Sydney Harbour for refuelling in October 1951. The crew had
carelessly allowed furnace oil (also referred to as Bunker oil) to leak from their ship. The oil leaked and reach to the nearby
wharf (600ft away) where ship of the plaintiff was getting repaired. 60 hours after the ship of the defendant was left Hot metal
 produced by welders using oxyacetylene torches on the respondent's timber wharf (Mort's Dock) at Sheerlegs Wharf fell on
floating cotton waste which ignited the oil on the water. The wharf and ships moored there sustained substantial fire damage.

Judgment

The Privy Council found in favour of the defendant, agreeing with the expert witness who provided evidence that the defendant, in
spite of the furnace oil being innately flammable, could not reasonably expect it to burn on water.

The Privy Council's advice soundly disapproved the rule established in Re Polemis, as being "out of the current of
contemporary thought" and held that to find a party liable for negligence the damage must be reasonably foreseeable.

Hughes v Lord Advocate [1963] AC 83713

Remoteness of damage in tort law; that the kind of damage must be foreseeable, rather than the specific damage that actually
occurred.
Facts
Workmen employed by the defendant had been working on a manhole cover, and then proceeded to take a break, leaving the hole
encased in a tent with lights left nearby to make the area visible to oncoming vehicles. Two young boys, the claimants, encountered
the uncovered and unattended man hole and proceeded to climb down to see inside of it, bringing with them one of the paraffin
lamps left out by the workmen. The lamp was subsequently dropped and caused a significant explosion which left both of the boys
with extensive injuries from the fire. The defendant submitted that such an action would have caused this outcome was deemed
unforeseeable.

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Issues
Whether a party can be found liable for injuries that could not have been specifically envisaged as resulting from their actions, even
where the kind of injury was a foreseeable consequence.
Held
Here the House of Lords found for the claimants, and held that whilst it was indeed reasonably unforeseeable that a dropped lamp
in the manhole would have resulted in an explosion of the size that occurred, this did not alter the fact that it was reasonably
foreseeable that a person may have burnt themselves on the unattended paraffin lamps. The emphasis here was placed on the
foreseeability of the kind of damage rather than the specific actual damage as this was considered too high a standard.

Purpose of Damages in Torts

The main object behind remedying by damages is to bring the plaintiff back into the position that he/she was in
before the injury due to the tort occurred, or in other words, to bring him back to the position he would have been
in, if the tort did not ever occur.

2.Injunction
Injunction is an equitable remedy available in torts, granted at the discretion of the court.
An injunction is an order of a court that restrains a person from continuing the commission of a wrongful act, or orders
the person to commit a positive act to reverse the results of the wrongful act committed by him, that is, to make good
what he has wrongly done. To receive injunction against a party one must prove damage or the possibility of
prospective damage (apprehended damage). An injunction can be temporary or permanent,

2.Extra-Judicial Remedies
When a person can lawfully avoid or remedy himself without the intervention of courts, the remedies are called extra-
judicial remedies. In this, the parties take the law in their own hands. Some examples are:

1.Expulsion of trespasser
A person can use a reasonable amount of force to expel a trespasser from his property. The two requirements are:

 The person should be entitled to immediate possession of his property.

 The force used by the owner should be reasonable according to the circumstances.
Illustration: A trespasses into B’s property. B has the right to use reasonable force to remove him from his property
and re-enter himself.
 2.Re-entry on land
The owner of a property can remove the trespasser and re enter his property, again by using a reasonable amount of
force only.

3.Re-caption of goods
The owner of goods is entitled to recapture his/her goods from any person whose unlawful possession they are in. Re-
caption of goods is different from specific restitution in that it is an extra-judicial remedy, in which the person need not
ask the court for assistance, instead, takes the law in his own hands.

Illustration: If A wrongfully acquires the possession of B’s goods, B is entitled to use reasonable force to get them back
from A.

4.Abatement
In case of nuisance, be it private or public, a person (the injured party) is entitled to remove the object causing
nuisance.

Illustration: A and B are neighbours. Branches of a tree growing on A’s plot enter B’s apartment from over the wall.
After giving due notice to A, B can himself cut or remove the branches if they’re causing him nuisance.
 5.Distress Damage Feasant
Where a person’s cattle/other beasts move to another’s property and spoil his crops, the owner of the property is
entitled to take possession of the beasts until he is compensated for the loss suffered by him.