What is a Tort?

Introduction

It is derived from the Latin word “tortum” which means “wrong” or “injury”.
According to Salmond, “A 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 breach of trust or other merely equitable obligation.”

EXAMPLE

You're walking into a bakery. The floor is wet because the staff just mopped it, but
they didn’t put up a “Wet Floor” sign. You slip, fall, and break your arm.

You didn’t do anything wrong. But you got hurt because someone else didn’t
take proper care — they had a duty to warn you about the danger and they
failed.

This is a tort.

• The bakery had a duty to keep customers safe.

• They breached that duty by not warning you.

• You suffered injury because of that.

• So, you can sue the bakery and claim compensation for medical bills,
pain, etc.

You’re not asking the police to arrest them because it’s not a crime, it’s a civil
wrong.
You're just saying: “Hey, I got hurt because of your carelessness. You should pay for
it.”

An individual who commits a tort is called a tortfeasor, or a wrongdoer. And

where there are multiple individuals involved, then they are called joint
tortfeasors. Their wrongdoing is called as a tortious act and they can be sued
jointly or individually. The main aim of the Law of Torts is the compensation of
victims.

Essential Elements of Torts

The essential elements of torts are as follows:

• Wrongful Act- When a person is under some legal duty, and he fails to
perform it causing some loss to the victim, the person has committed a
wrongful act. A wrongful act invades the following private rights of the
victim- Good Reputation, Bodily safety and Legal rights.

• Legal Damage- There is a difference between legal damage and actual

damage. In torts, injuria sine damno is actionable but damnum sine
injuria isn’t. Injuria sine damno means an infringement of a legal right even
if there is no actual damage. Damnum sine injuria means damage without
injury. In Ashby v. White[3], the plaintiff was prevented from exercising her
right to vote. It was held that the plaintiff was entitled to damages. In
the Gloucester Grammar School Case, a rival school was set up near that of
the plaintiff. It was held that the plaintiff could not get compensation as
there was no legal injury.

• Legal Remedy- The damage in tort should be actionable. There cannot be

a tort if there is no legal remedy.
Difference Between Tort and Crime (5 Mark)
A tort is distinguished from a crime in the following manner-

BASIS TORT CRIME

A private wrong that harms a person’s A public wrong that affects society at
Meaning
civil rights. large.
Nature of Infringement of a personal right (right Infringement of public rights (right in
Wrong in rem). personam).
The wrongdoer pays compensation The offender is punished by the State
Remedy
(damages). (e.g., fine, imprisonment).
Legal The injured person files a suit in civil The State files a complaint in criminal
Process court. court.
Tort law is uncodified (based on court Criminal law is codified in written
Law Type
decisions and principles). statutes like the IPC.
Not always necessary to prove Intention (mens rea) is essential to
Intention
intention. establish guilt.
Damage
Vs
Damages
Liquidated damages vs Unliquidated damages

Liquidated damages, on one hand, have their amount of compensation fixed while on the other
hand, unliquidated damages have no prior fixed amount, they change with the intensity of the
offence committed by the defendant.

The extent of the amount to be compensated in the case of liquidated damages is

predetermined whereas in the case of unliquidated damages in order to get the maximum
compensation the plaintiff has to prove the extent of the damage he has suffered from.

Let’s say you run an event, and someone hires a security team. The contract says:

“If the security fails to show up, they must pay ₹20,000.”

✅ That’s liquidated damages — a pre-fixed penalty.

But now imagine someone crashes the event with a car, injures guests, and causes ₹2,00,000
worth damage. You sue the driver.

✅ This is a tort, and the damages are unliquidated — the court decides how much you should
get, based on the injury and loss caused.
Introduction

The concept of Strict Liability in torts is also referred as “No-Fault Liability”, which
can very explain this concept in an obvious manner- “that liability would exist
irrespective of any fault”. There exist certain activities which are inherently so
dangerous in nature that merely carrying them on poses a duty on the person
who does so, to compensate for any damage irrespective of any carelessness on
their part. The rationale behind imposing such liability is the foreseeable risk
involved in such activities. This principle was first applied by the House of Lord in
the case of Rylands v. Fletcher.

The case of Rylands v. Fletcher

Rylands v. Fletcher (1868)

Facts

Mr. Rylands, the defendant, constructed a reservoir on his land to supply water to his mill.
During construction, old, unused mine shafts (which connected underground to his neighbor’s
land) were discovered, but the contractors failed to properly seal or inspect them.

Once the reservoir was filled, large volumes of water escaped through those weak shafts and
flooded the adjacent coal mine owned by Mr. Fletcher, the plaintiff.

Mr. Fletcher had no idea this was happening until his mine was flooded and his work was
disrupted. He sued Rylands for the damage caused, even though Rylands didn’t personally act
carelessly.

Issue: Can the defendant be held responsible for another party's action that causes an
entity to leave his property without his knowledge or consent?

The defendant asserted that it was the contractor’s fault rather than his own. He could
not accept that he was responsible for the harm, even though he did not know what
caused it.

Decision:
The House of Lords held Mr. Rylands liable, even though he didn’t intend to cause harm or act
negligently.

The court laid down the Rule of Strict Liability:

"A person who, for his own purposes, brings and keeps anything likely to do harm if it escapes,
must keep it at his own risk. If it escapes and causes damage, he is liable."

Essentials for Strict Liability in Torts

To prove a case of strict liability, the following ingredients must be fulfilled-
A. Dangerous thing
A person can be held “strictly liable” only in the cases where a dangerous
substance escapes from their land. A dangerous substance is those which are
likely to cause some harm or mischief if escape. In Rylands’ case, such dangerous
thing was a large body of water. In various other torts cases vibrations, electricity,
gas, sewage, explosives, rusty wires, etc were considered to be dangerous things.
B. Escape
It is also essential that such dangerous thing must escape from the premises of
the defendant. In the case of Crowhurst v. Amersham Burial Board[3] where
the branches of the poisonous tree were spread from defendant’s land to
plaintiffs, it was held that such was escaped. Whereas in the case of Read v.
Lyons & Co[4], where an employee suffered an injury due to an explosion in a
shell manufacturing company, it was held such could not be covered under strict
liability principle as nothing escaped from the defendant’s premises.
C. Damage
There must be damage suffered by the plaintiff as a direct consequence of the
dangerous thing that escaped. In the case of Weller v. Foot and Mouth Disease
Institute[5], where the defendant went out of business due to the Government’s
action of closing cattle market, it was held to be sufficient damage.
D. Non-Natural use of land
In the case of Richard v. Lothian[6], Lord Multon defined non-natural use of
land as “some special use bringing with it increased danger to others and not
merely the ordinary use of the land or such a use as it proper for the general
benefit for the community”.
Such would be decided by the courts after considering all the surrounding
circumstances and the prevalent social conditions. For example in Ryland’s case,
storing water in huge quantity was considered to be non-natural use of land
whereas if such would be stored for an ordinary domestic purpose that would
have been natural use of land.
Exceptions to the Rule of Strict Liability in Torts
The concept of strict liability in torts has certain exceptions that the defendant
can plead to escape from the liability. Following are the exceptions-
A. The default of the claimant
The cases where damage is suffered by the plaintiff due to his own fault, the
principle of strict liability would not be applied. In the case of Ponting v.
Noakes[7] where the horse of the plaintiff died after nibbling on leaves of the
poisonous tree in the defendant’s land. It was held that such was due to the
plaintiff’s own fault as such a tree had not reached the plaintiff’s land.
B. Act of God
The principle of strict liability in torts would not be applicable to the cases where
damage is caused due to act of God. Such are those which are beyond human
power or contemplation and are caused by a superior natural force.
C. Consent of the claimant
This is basically a defense of ‘Volenti non fit injuria’ where the plaintiff has either
explicitly or impliedly consented for the presence of such dangerous thing.
D. Statutory Authority
If a particular act is done under authorization of a law or statute, for example, an
act done by the government agencies, such an act cannot be made strictly liable.
In Green v. Chelsea waterworks co.,[8] where the defendant’s company was
engaged to maintain a continuous water supply under statutory authority, it was
held that bursting of such water supplies was without any defendant’s fault and
statutory protection would be granted.
E. Act of the third party
A defendant can claim a defense from strict liability in torts where damage is
caused to the fault of a stranger or a third party. Such an act is not in control of
the defendant. In the case of Rickards v. Lothian[9] where some strangers
blocked the water pipeline, which is usually in control of the defendant. Such
blockage resulted in an explosion which eventually causes damage to the
plaintiff. It was held that the defendant can’t be made liable as it was due to the
act of a third party which was not in control of the defendant.
F. Common Benefit
Where the source of danger is maintained for the common benefit of both
plaintiff and defendant, strict liability in torts would not be applicable. In the case
of Box v. Jubb[10] where the defendant’s reservoir got overflowed partly due to
the plaintiff’s reservoir and partly because of the defendant’s act. It was held
defendant can’t be made liable because such reservoirs were installed for the
common benefit of both the party.

In Rylands v. Fletcher, the person who was made liable was:

Mr. Rylands – the Owner of the Reservoir

Even though he personally did not build the reservoir or act negligently (the mistake was
actually made by the independent contractors), the court still held him liable.

Conclusion
The principle of strict liability in torts is often criticized because of the existing
exceptions which eventually help the defendant to doze off the liability. But we
should also consider the fact that this principle is in itself an exception. A person
can be made liable only when he is at fault. But this principle allows us to make a
person liable even without any fault.

Absolute liability

In the case of M.C. Mehta v. Union of India, the doctrine of absolute liability was
developed. This case was a significant turning point in Indian legal history by establishing
a new rule. The rule stated that an enterprise is strictly liable to compensate all those
harmed by an accident when the enterprise is engaged in a hazardous or inherently
dangerous activity and harm results to anyone as a result of an accident in the operation
of such hazardous or inherently dangerous activity.

M.C. Mehta v. UOI- A company owned by Union Carbide was established in Bhopal. The
factory produced pesticides and similar goods. 40 tonnes of hazardous gas were released
by the plant overnight on December 2nd, 1984. (methyl isocyanate). The surrounding
region of the facility turned into a gas chamber, resulting in 3000 fatalities and numerous
injuries. All of the plant's safety systems were determined to be broken throughout the
examination. The Supreme Court decided against adhering to the strict liability rule
because doing so would let these industries off the hook for the harm they inflicted and
the lives they lost.

The rule stated clearly that when an enterprise engages in a risky or inherently
dangerous activity and harm is caused to anyone as a result of an accident while carrying
out such a risky or inherently dangerous activity, the enterprise is strictly and absolutely
liable to compensate all parties affected by accident and such liability is not subject to
any of the exceptions that apply to the tortious principle of strict liability.

ABSOLUTE LIABILITY= STRICT LIABILITY - EXCEPTIONS

Essentials of absolute liability

1. Hazardous Substance - The accountability for a substance escaping from someone's

land will only become apparent if the substance is hazardous or dangerous under the
existing criteria. The substance must be hazardous because it is damaging, hurtful, and
potentially destructive.

2. Escape - It must be proven that something that caused hurt or damage escaped the
defendant's property or property under their control to hold them accountable. In other
words, the dangerous material must escape to endanger a victim and establish absolute
culpability. However, escape inside the building might also be considered complete
culpability.

3. Non-natural use of land - The facts of the case make it obvious. Water storage for
residential use can be natural, while large-scale water storage in reservoirs can be
unnatural. Growing trees or plants on land might be natural; cultivating toxic plants can
be unnatural.

4. Mischief - To hold the offender accountable, the plaintiff must demonstrate that any
hazardous chemical has escaped and resulted in damages.

Rule in Derry v. Peek

Introduction: Misrepresentation in Tort Law

In tort law, misrepresentation refers to a false statement of fact made by one person to another,
which causes the latter to enter into a contract or act in a particular way, resulting in loss or
damage. Misrepresentation can be innocent, negligent, or fraudulent, depending on the
intention and knowledge of the person making the statement. Among these, fraudulent
misrepresentation is considered the most serious and is treated as a tort under the name deceit.

Fraudulent misrepresentation becomes actionable in tort when a person knowingly or recklessly

makes a false statement, intending that another person should rely on it, and that person suffers
harm by acting on it. The case of Derry v. Peek (1889) is the leading authority that defines the
rule and essentials for establishing fraudulent misrepresentation.

Essentials of Fraudulent Misrepresentation (Deceit)

To prove the tort of deceit, the following conditions must be satisfied:

 1. There must be a false representation of fact.
2. The person making the statement must know it is false, or must not believe it to be true,
or must be reckless about its truth.
3. The statement must be made with the intention to induce the other party to act upon it.
4. The other party must have relied on the statement and suffered actual damage or loss.

These essentials were clearly laid out and explained in the case of Derry v. Peek.

Facts of the Case: Derry v. Peek (1889)

In this case, a tramway company issued a prospectus stating that it had the right to use steam-
powered engines instead of horse-drawn ones for its services. The directors made this statement
believing that they would easily get permission from the Board of Trade, as they expected it to
be a formality. Relying on this representation, Mr. Peek, the plaintiff, purchased shares in the
company. However, the required permission was denied, and the company’s business collapsed.
As a result, Mr. Peek suffered financial loss and sued the company’s directors for fraud.

Judgment and Legal Rule

The House of Lords held that the directors were not liable for fraud because they genuinely
believed that they would receive the required permission. Their statement, although false, was
made in good faith. Therefore, it did not amount to fraudulent misrepresentation.

The court laid down the now-famous Rule in Derry v. Peek, which states:

A false statement amounts to fraud only when it is made: (1) knowingly, or (2) without belief in
its truth, or (3) recklessly, without caring whether it is true or false.

If a person honestly believes in the truth of the statement, even if it turns out to be wrong, it is
not fraud.

Conclusion

The rule in Derry v. Peek is a landmark in tort law, especially in cases involving deceit. It made
it clear that honest mistakes do not amount to fraud, and to hold someone liable for fraudulent
misrepresentation, there must be actual dishonesty or recklessness. This case continues to be a
foundation for understanding the limits of liability for false statements in both tort and contract
law.