Torts.docx

LAW OF TORTS Project Topic What is law of Torts ? Submitted to: Dr. (Prof.) Manjula Batra Submitted by: Ziaul Haq B.A.LL.B.(Hons) Ist Sem Faculty of Law

Jamia Millia Islamia A Central University

Acknowledgement It gives me immense pleasure and gratitude to thank my tort’s teacher Dr. (Prof.) Manjula Batra who has helped me in each possible way that one could. My project without her help would have been a much difficult task. I would like to thank staff of the central library of Jamia Millia Islamia for helping me in searching valuable information.

WHAT DOES TORT MEAN? “It is a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively breach of contract or the breach of a trust or other merely equitable obligation”- Sir John SALMOND When some wrongful act has been done, it has got to be seen first whether it is civil or a criminal wrong. If the wrong is found to be a civil one ,we have to see whether it exclusively belongs to any other recognized category of civil wrong like breach of contract and breach of trust .If we find that it is not exclusively any of the other civil wrongs, then we can say that it is a TORT. Tort is a civil wrong and every civil wrong is not a tort. There are other civil wrongs also, the most important of which are breach of contract and breach of trust.

TORT A CIVIL WRONG Tort belongs to category of civil wrongs .The basic nature of civil wrong is different from criminal wrong. In case of a civil wrong, the injured party, i.e. the plaintiff institutes a civil proceeding against the wrong doer, i.e. the defendant. In such a case main remedy is damages .The plaintiff is compensated by the defendant for the injury caused to him by the defendant. In case of criminal wrong, the criminal proceedings against the accused are brought by the State. Moreover in case of criminal wrong, the individual who is the victim of the crime, is not compensated. The justice is done by punishing the wrong doer I t is, however, possible that the same act done by a person may result into two wrongs, a crime as well as a tort, at the same time. In such cases there would be civil action as well as a criminal action requiring the defendant to pay compensation as well as a criminal action awarding punishment to the wrongdoer.

TORT AND CRIME The wrongs which are comparatively less serious are considered to be private wrongs and have been labelled as civil wrongs, whereas more serious wrongs have been considered to be public wrongs and are known as crimes. According to Blackstone: “Wrongs are divisible into two sorts or species private wrongs and public wrongs. The former are the infringement or privation of individuals, and thereupon frequently termed civil injuries; the latter are breach and violation of public rights and duties which affect the whole community; and are distinguished by the harsher application of crimes and misdemeanours.”

The various wrongs which find their place both under criminal law and law of torts. Some examples of such wrongs are Assault, Defamation, Negligence, Conspiracy and Nuisance. The definition of any one of these wrongs may be different under civil and criminal laws.

The rules applicable in case of tort are generally different from those in case of crime. I) In case of tortious liability for the wrong of defamation, the truth is in itself a defence, whereas in an action for the offence of defamation, the defence of truth can be taken if the publication was made for the public good.

2) Since tort is considered private wrong, the injured party himself has to file a suit as a plaintiff. If, at any stage the injured party likes, he may agree to a compromise with the tortfeaser and withdraw the suit filed by him. In case of crime, on the other hand, even though the immediate victim is an individual, the criminal wrong is considered to be public wrong. Moreover, except in certain exceptional cases (See Sec 320 Cr. Pc., 1973) the does not permit settlement in criminal cases between the wrongdoer and aggrieved party and , thus the compounding of an offence is, as a general rule, considered to be unlawful. 3) In case of tort, the ends of justice are met by awarding compensation to the injured party. In case of crime the wrongdoer is punished. The idea of awarding compensation to the injured party under civil law is to make the good the loss suffered by him. The punishment under criminal la w protects the society by preventing the offender from committing further offences and deterring him and other potential offenders from committing wrongs.

ESSENTIALS OF A TORT To constitute a tort, it is essential that the following two conditions are satisfied: 1) There must be some act of omission on the part of the defendant, and 2) The act or omission should result in legal damage (injuria), i.e. violation of a legal right vested in the plaintiff.

ACT or OMISSION In order to make a person liable for a tort, he must have done some act which he was not expected to do, or he must have omitted to do something which he was supposed to do. Either a positive wrongful act or an omission which is allegedly made, will make a person liable. For Example, A commits the act of trespass or publishes a statement defaming another person, or wrongfully detains another person, he can be liable for trespass, defamation or false imprisonment, as the case may be. Similarly when there is a legal duty to do some act and a person fails to perform that duty, he can be made liable for trespass, defamation, or false imprisonment, as the case may be. Similarly, when there is a legal duty to do some act and a person fails to perform the duty, he can be made liable for

such omission. For example, if a corporation, which maintains a public park, fails to put proper fencing to keep the children away from poisonous tree and a child plucks and eats the fruits of poisonous trees and dies the Corporation would be liable for such omission (Glasgow Corp. v. Taylor, (1922) 1 A.C. 44). Similarly if the Municipal Corporation, having control of the clock tower in the heart of the city does not keep in it proper repairs and the falling of the same results in the death of number of persons, the Corporation would be liable for its omission to take care in the matter(Municipal Corporation of Delhi v. Subhagwanti, A.I.R. 1996 S.C. 1750). In the same way an employer, failing to provide a safe system of work, would be liable for the consequences of such an omission (General Cleaning Corporation Ltd. V Christmas, 1953 A.C. 180).

LEGAL DAMAGE In order to be successful in an action for tort, the plaintiff has to prove that there has been a legal damage caused to him. In other words, it has got to be proved that there was a wrongful act – an act or omission – causing breach of a legal duty or violation of a legal right vested in the plaintiff. There has been violation of legal right, there can be no action under law of torts. If there has been violation of a legal right, the same is actionable whether the consequence thereof, the plaintiff has suffered any loss or not. This is expressed by the maxim “Injuria Sine Damno.” Injuria means infringement of a right conferred by law on the plaintiff or an unauthorised

interference, howsoever trivial, with the plaintiff’s right. Damnum means substantial harm, loss or damage in the respect of money, comfort, health or the like. Thus, when there has been injuria or the violation of a legal right and the same has not been coupled with a damnum or the harm to the plaintiff, the plaintiff can still go to the court of law because no violation of a legal right should go unredressed. Since what is actionable is the violation of a legal right, it therefore, follows that when there is no violation of a legal right, no action can lie in a court of law even though the defendant’s act has caused some loss or harm or damage to the plaintiff. This is expressed by the maxim “Damnum Sine Injuria.” It means that the damage without the violation of a legal right is not actionable in a court of law. The reason for the same is if the interference in the rights of another person is not unlawful or unauthorised but unnecessary consequence of the exercise of his own lawful rights by the defendant, no action should lie. Thus, the test to know whether the defendant should or should not be liable is not whether the plaintiff has suffered any loss or not but the real test is whether any lawful right vested in the plaintiff, has been violated or not.

INJURIA SINE DAMNO Injuria Sine Damno means violation of a legal right without causing any harm, loss or damage to the plaintiff. There are two kinds of torts: Firstly, those torts which are actionable per se, i.e. actionable without the proof of any damage or loss. For instance, trespass to land is actionable even though no damage has been caused as a result of trespass. Secondly, the torts which are actionable only on the proof of some damage caused by an act. Injuria Sine Damno covers the first of the above stated cases. In such cases, there is no need to prove that a consequence of an act, the plaintiff has suffered any harm. For a successful action, the only thing which has to be proved is that the plaintiff’s legal right has been violated i.e. there is injuria.

Ashby v White (1703) Ld. Raym, 938, is a leading case explaining the maxim injuria sine damno. In this case, the plaintiff succeeded in his action, even though the defendant’s act did not cause any damage. The plaintiff was a qualified voter at a parliamentary election, but the defendant, a returning officer, wrongfully refused to take plaintiff’s vote. No loss was suffered by such refusal because the candidate for whom he wanted to vote, won the election in spite of that. It was held that the defendant was liable.

Holt, CJ said: “If the plaintiff has a right, he must of necessity have a means to vindicate and maintain, and a remedy, if he is injured in the exercise of enjoyment of it; and indeed, it is vain thing to imagine a right without remedy for want of right and want of remedy are reciprocal.” “Every injury imports a damage, though it does not cost the party on farthing. For a damage not merely pecuniary but an injury imports a damage, when a person thereby hindered of his right. As in action of slanderous words, though a man does not lose a penny by reason of speaking them, yet he shall have an action. So, if a man gives another a cough on the ear, though it costs him nothing, no, not so much as a little diachylon (plaster), yet he shall have his action for it is a personal injury. So, a man shall have an action against another for riding over his ground, though it does him no damage; for it is an invasion of his property, and the other has no right to come there.”

In Bhim Singh v State of Jammu & Kashmir, A.I.R. 1986 S.C. 494, the petitioner, an MLA of Jammu & Kashmir assembly was wrongfully detained by the police while he was going to attend the assembly session. He was not produced before the magistrate within the requisite period. As a consequence of this, the member was deprived of his constitutional right to attend the assemble session. There was also violation of fundamental right to personal liberty guaranteed under article 21 of the constitution. By the time, the petition was decided by the Supreme Court, Bhim Singh

had been released, but the way of consequential relief, exemplary damages amounting to Rs. 50,000 were awarded to him.

DAMNUM SINE INJURIA It means damage which is not coupled with an authorised reference with the plaintiff’s lawful right. Causing of damage, however substantial, to another person is not actionable in law unless there is violation of legal right of the plaintiff. This is generally so when the exercise of legal right by one results in consequential harm to the other. Lord Wright said in Grant v Australian Knitting Mills, (1935) All E.R. 209: “The mere fact that a man is injured by another’s act gives in itself no cause of action; if the act is deliberate, the party injured will have no claim in law even though the injury is intentional, so long as the other party is exercising a legal right.”

Gloucester Grammar School Case (1410) explains the point. There the defendant, a schoolmaster, set up a rival school to that of the plaintiffs. Because of the competition, the plaintiffs had to reduce their fees from 40 pence to 12 pence per scholar per quarter. It was held that the plaintiffs had no remedy for the loss thus suffered by them. Hankford J. said: “Damnum may be abseque injuria, as if I have a mill and my neighbour

builds another mill whereby the profit of my mill is diminished, I shall have no action against him, although I am damaged….but if a miller disturbs the water from going to my mill, or does any nuisance of the like sort, I shall have such action as the law gives.”

In Mogul Steamship Co. v Mcgregor Gow & Co. (1892) A.C. 25, a number of steamship companies combined together and drove the plaintiff company out of the tea-carrying trade by offering reduced freight. The House of Lords held that the plaintiff had no cause of action as the defendants had by lawful means acted to protect and extended their trade and increase their profits.

In Ushaben v Bhagyalaxmi Chitra Mandir, A.I.R. 1978 Guj. 13, the plaintiffs sued for a permanent injunction against the defendants to restrain them from exhibiting the film named “Jai Santoshi Maa”. It was contended that the film hurt the religious feelings of the plaintiff in so far as Goddess Saraswati, Laxmi and Parvati were depicted as jealous and were ridiculed. It was observed that hurt to religious feelings had not been recognized as a legal wrong. Moreover, no person has a legal right to enforce his religious views on another or to restrain another from doing a lawful act, merely because it did not fit in with the tenets of his particular religion. Since there was no violation of a legal right, request of injunction was rejected.

In Action v Blundell, (1848) the defendants by digging a coalpit intercepted the water which affected the plaintiff’s well, less than 20 years old, at a distance of about one mile. Held, they were not liable. It was observed: “The person who owns the surface, may dig therein and apply all that is there found to his own purposes, at his free will and pleasure, and that if in the exercise of such rights, he intercepts or drains off the water collected from underground springs in the neighbour’s well, this inconvenience to his neighbour falls within description damnum abseque injuria which cannot become the ground of action.”

In Bradford Corp. (Mayor of) v Pickles (1895), the House of Lords went a step further and held that even if the harm to the plaintiff has been caused maliciously, no action can lie for the same unless the plaintiff can prove that he has suffered injuria. In this case, the plaintiffs had been deriving water from the adjoining land of the defendant which was at a higher level. The defendant sank a shaft over his own land which diminished and discoloured the water flowing to the land of the plaintiffs. The plaintiffs claimed an injunction to restrain the defendant from sinking the shaft alleging that the sole purpose of the same was to injure the plaintiffs as they did not purchase his land at an exorbitant price. The House of Lords held that since the defendant was exercising his lawful right, he could not be made liable even though the act, which injured the plaintiff, was done maliciously. Lord Ashbourne said: “The plaintiffs have no cause unless they can show that

they are entitled to the flow of the water in question, and that the defendant has no right to do what he is doing.” Thus, a legal act, though motivated by malice, will not make the defendant liable. The plaintiff can get compensation only if he proves to have suffered injury because of an illegal act of the defendant and not otherwise.

Town Area Committee v Prabhu Dayal, A.I.R. 1975 All. 132, also explains this point. In that case, the plaintiff constructed 16 shops on the old foundations of a building. The said construction was made without giving a notice of intention to erect a building under Sec. 178 of the U.P. Municipalities Act and without obtaining necessary sanctions required under Sec. 180 of that Act. The defendants demolished this construction. In an action against the defendants to claim compensation for the demolition, the plaintiff alleged that the action of the defendants was illegal as it was mala fide. It was held that the defendants were not liable as no “injuria” could be proved because if a person constructs a building illegally, the demolition of such building by the Municipal authorities would not amount to causing “injuria” to the owner of the property.

Similar was the position in Pagadala Narasimham v The Commissioner and Special Officer, Nellore Municipality. In that case, the plaintiff’s bus, which was not in working condition, was parked on the road and caused obstruction to

the traffic. The traffic police removed the bus with the assistance of the municipal employees. It was held that the police officers were justified in their act, as the same had been done in discharge of sovereign functions, and, therefore, they could not be held liable for the same.

MENTAL ELEMENT IN TORTIOUS LIABILITY : Mental element is an essential element in most of the forms of crime. Generally, under criminal law, mere act of a person is not enough to create his liability, is not ordinarily punishable for something which he never meant, or the consequences of which he could not foresee. It is not easy to make any such generalisation about liability in tort. The position under the law of torts is as follows:

FAULT WHEN RELEVANT In many of the branches of the law of torts like assault, battery, false imprisonment, deceit, malicious prosecution and conspiracy, the state of mind of a person is relevant to ascertain his liability. We may have to see whether a particular wrongful act was done intentionally or maliciously. Sometimes, we may compare the conduct of the defendant with that of a reasonable man and make him liable only if his conduct falls below the standard expected of a reasonable man. When the circumstances demand care and a person fails to perform the duty to take care, he is liable for the tort of

negligence. On the other hand, if the defendant has taken such care as was expected from him, he is not liable for the damage to the plaintiff. Mental element may become relevant in another way also. If the defendant’s conduct is innocent in so far as the act done was due to an inevitable accident, he may be excused from liability. Thus, if I have no reason to believe that there are electric wires beneath my land and the same get damaged on my making the excavations there, I will not be liable for the damage to the wires (National Coal Board v J.E. Evans & Co. 1951). Similarly, if the defendant’s horses, for no fault on his part, cause injury to somebody on a public highway, the defendant can take the defence of inevitable accident (Holmes v Mather, 1875). The defence of necessity may also be available in the same way. Necessity can be pleaded when the defendant’s act is not actuated by a wrongful intent, but he is compelled by the circumstances to cause some smaller harm intentionally in order to prevent a greater evil. It is, therefore, a good defence to an action for trespass that the same has been committed to prevent the spread of fire to the adjoining land (Cope v Sharpe, 1912).

LIABILITY WITHOUT FAULT There are certain cases where the mental element is quite irrelevant and the liability arises even without any wrongful intention or negligence on the part of the defendant. In such cases, innocence of the defendant or an honest mistake on his part is no defence. Tort of conversion is an example of the same. Thus, an auctioneer, who sells goods, under a authority

from a customer having no title to the goods, is liable for conversion, even though at the time of sale he honestly believed that, customer was the true owner (Consolidated Co. v Curtis, 1892). In case of defamation also, the defendant can be made liable when he did not intend to defame but his act turns out to be defamatory (Cassidy v Daily Mirror Newspaper Ltd., 1929). In case of vicarious liability also, a person may be held liable when he himself was not at fault. Rylands v Fletcher, 1868 laid down the rule of strict liability. Under that rule, if a person makes non-natural use of his land by collecting there something which is likely to do mischief by escape, he will be liable if the thing so collected escapes and causes damage. In such a case, it would be no defence to say that the defendant was not negligent in collecting the thing or for its escape. Liability is also strict when a person knowing the dangerous nature of an animal keeps the same. Similarly, in the case of hazardous and inherently dangerous industry, the principle of absolute liability has been recognised (M.C. Mehta v Union of India, 1987).

MALICE IN LAW & MALICE IN FACT

Malice in Law: Malice in law simply means a wilful act done without just cause or excuse. It does not connote any improper motive for doing the act.

Malice in Tort or Evil Motive: It means the motive for doing a wrongful act. When the defendant does an act with a feeling of spite, vengeance or ill will, the act is said to be done maliciously. As a general rule, motive is quite irrelevant in determining a person’s liability under the law of torts. A wrongful act does not become lawful merely because the motive is good. Similarly, a lawful act does not become wrongful because of a bad motive or malice. In South Wales Miners’ Federation v Glamorgan Coal Co., the plaintiffs, the owners of coal mines, brought an action against the defendants, a miners’ union for inducing its workmen to make a breach of contract of their employment by ordering them to take certain holidays. The fact that the defendants were not actuated by any malice because their object was to keep up the price of coal by which the wages were regulated, was considered to be irrelevant. The defendants were held liable. The House of Lords emphasised the rule again in the case of Allen v Flood and there Lord Watson said: “Although the rule may be otherwise with regard to crimes, the law of England does not….take into account motive as constituting an element of civil wrong. Any invasion of the civil rights of another person is in itself a legal wrong, carrying with it liability to repair its necessary or natural consequences, in so far as they are injurious to the person whose right is infringed, whether the motive which prompted it be good, bad or irrelevant”.

In Town Area Committee v Prabhu Dayal, the plaintiff made certain construction without complying with the provisions of the U.P. Municipalities Act. The defendants demolished the construction. The plaintiff sued the defendants contending that the demolition was illegal as some of the officers of the Town Area Committee were acting maliciously in getting the construction demolished. The Allahabad High Court held that the demolition of a building illegally constructed was perfectly lawful. The court did not investigate the question whether the act was done maliciously or not as the same was considered to be irrelevant. In the words of Hari Swaroop, J.: “The plaintiff can get compensation only if he proves to have suffered injury because of an illegal act of the defendant and not otherwise. Malice does not enter the scene at all. A legal act, though motivated by malice, will not make the action liable to pay damages…..merely because some officer has malice against a citizen who has committed a wrong will not render the action of the authority invalid if it is otherwise in accordance with law. Mere malice cannot disentitle a person from taking recourse to law for getting the wring undone. It is, therefore, not necessary to investigate whether the action was motivated by malice or not.”