LAW OF TORTS

NATURE AND DEFINITION OF TORTS

DEFINITION

The term 'Tort' means a wrongful act committed by a person, causing injury or damage to another, thereby the injured may file an action for unliquidated damages.

DIFFERENCE BETWEEN TORT AND CRIME

Tort	Crime
i) Less serious wrongs are considered as private wrongs and have been labelled as civil wrong.	i) More serious wrongs have been considered to be public wrongs and are known as crimes.
ii) The suit is filed by the injured person himself.	ii) The case is brought by the state.
iii) Compromise is always possible.	iii) Except in certain cases, compromise is not possible.
iv) the wrongdoers pays compensation to the injured party.	iv) The wrongdoer is punished.

 

Ex: if A digs a ditch on a public road resulting in inconvenience to the public at large, A has committed the offence of public nuisance as per IPC. If X, a passerby, falls into that ditch thereby getting injured, A’s act also becomes a tort of private nuisance as against X. Not only will A be punishable under criminal law but he shall be liable to compensate X under law of torts.

DIFFENRENCE BETWEEN TORT AND CONTRACT

Breach of contract	Tort
i) It results from breach of a duty undertaken by the parties themselves.	i) It occurs from the breach of such duties which are not undertaken by the parties but which are imposed by law.
ii) In contract, each party owes duty to the other.	ii) Duties imposed by law of torts are not towards any specific individual but towards the world at large.
iii) Damage of contract is liquidated.	iii) Damage of tort is unliquidated.
iv) It provides limited remedy	iv) It provides unlimited remedy.

 

Ex: due to the negligence of the driver, a railway passenger is injured, the railway authorities are liable for the breach of the contract of safe carriage, there is also tort of negligence which results in damage to the passenger.

Ex:  if I leave my horse with my neighbour for a week and go out and the neighbour allows the horse to die of starvation, there is a breach of contract inasmuch as the bailee has failed to exercise due care in the matter and the bailee has also committed tort of negligence. The plaintiff cannot claim the damages twice over. He has a choice either to sue for the breach of contract or for the commission of tort.

DIFFERENCE BETWEEN TORT AND QUASI-CONTRACT

Tort	Quasi- contract
i) duty is owed to all members of the public (though only one may be affected)	i) a duty is implied as being owed to a specific person i.e., the rightful recipient.
ii) duty is present at all the times	ii) in case of a quasi-contract duty is formed because of a particular situation i.e., the wrongful recipient of the benefit etc.
iii) damages are unliquidated	iii)  the damages may be liquidated damages.

 

CONSTITUENTS OF A TORT

1.         Act of Omission.

In order to make a person liable for a tort, he must have done some act which he was either not expected to do, or, he must have omitted to do something which he was supposed to do.

Ex:  A commits the act of trespass, he can be made liable for the same.

2.         Legal damage.

It has got to be proved that there was a wrongful act (an act or omission) causing breach of a legal duty or the violation of a legal right vested in the plaintiff. Unless there has been a violation of a legal right, there can be no action under the law of torts. It can be expressed by the following two maxims:

Injuria sine damno

It means violation of a legal right without causing any harm, loss or damage to the plaintiff.

There are two kinds of torts:

Firstly  those which are actionable per se i.e. actionable without the proof of any damage or loss. For instance, trespass to land is actionable even though no damage has been caused as a result of the trespass.

Secondly the torts which are actionable per se only on the proof of some damage caused by an act.

Damnum sine Injuria

It means causing damage without violating the legal right of the plaintiff.

Ex:  in Mogul Steamship Co. v McGregor Gow and Co., 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 extend their trade and increase their profits.

 

 

RULES OF STRICT AND ABSOLUTE LIABILITY

RULE OF STRICT LIABILITY

(In Rule in Rylands v. Fletcher)

In Rylands v. Fletcher, in 1868, the house of lords laid down the rule recognizing ‘No Fault’ liability. The liability recognized was ‘Strict liability’ i.e. even if the defendant was not negligent or rather , even if the defendant did not intentionally cause the harm or he was careful, he could still be made liable for the act done by him.

In Rylands v. Fletcher, the defendant got a reservoir constructed, through independent contractors, over his land for providing water to his mill. There were old disused shafts under the site, which the contractors failed to observe and so did not block them. When the water was filled in the reservoir, it burst through the shafts and flooded the plaintiff’s coal mines on the adjoining land. The defendant did know if the shaftsand had not been negligent although the independent contractors had been. Even though the defendant had not been negligent , he was held liable.

ESSENTIALS FOR THE RULE

1.         Dangerous Thing

According to the rule, the liability for the escape of a thing from one’s land arises when the thing collected or escapes if of a dangerous nature (i.e. likely to cause mischief if it escapes).

2.         Escape

The thing causing damage must escape to an area beyond the control as well as the occupation of the defendant.

Ex: projection of branches of a poisonous tree on the neighbour’s land amounts to escape and if the cattle on the neighbour’s land eats that poisonous leaves and thereby die, thus the defendant can be made liable.

3.         Non Natural use of the land.

For the use to be non- natural, it must be some special use bringing with it increased danger to others, and must not merely by the ordinary use of land or such a use as it is proper for the general benefit of the community.

-          Generally an employer is not liable for the wrongful act done by an independent contractor. However it is no defence to the application of the rule that the act causing damage had been done by an independent contractor.

EXCEPTIONS TO THE RULE

1.         Plaintiff’s own default

If the plaintiff suffers damage by his own intrusion into the property of the defendant, he can then not complain for any damages so caused whatsoever.

2.         Act of God

If the escape has been unforeseen beyond the human power and is because of a supernatural forces without any sort of human intervention, then in such situations the defence of ‘act of god’ can be pleaded.

3.         Consent of the Plaintiff

In cases where the plaintiff has himself consented to the accumulation of the dangerous thing, then in such cases the liability under the rule does not apply.

4.         Act of Third party

If in case the act has been caused by a stranger (third party) who is neither the defendant nor the defendant’s servant nor anyone on his behalf, then in such cases the defendant shall not be made liable under the rule.

5.         Statutory Authority

An act done under the authority of a statute is a defence to an action for tort.

THE RULE OF ABSOLUTE LIABILITY

(The rule in MC Mehta v Union of India)

In MC Mehta v Union of India, the Supreme Court was dealing with claims arising from the leakage of oleum gas from one of the units of Shriram foods and Fertilizers Industries, inthe city of Delhi , belonging to Delhi, belonging to Delhi Cloth Mills Ltd. It was alleged that one advocate practising in Tis Hazari Court had died and several others were affected by the same.

Thus where an enterprise is engaged in a  hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting for example , in the escape of toxic gas, the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate under the rule in Rylands v Fletcher.

 

 

VICARIOUS LIABILITY- SCOPE AND JUSTIFICATION

Vicarious liability is the liability of one person for the act done by another person. However for that liability to arise, there must be a certain kind of a relationship between the parties and also that the ‘wrongful act’ should be connected with the relationship. The common examples of such liabilities are:

I)       Principal and Agent

Where one person authorizes another to commit a tort, the liability for that tort committed will not only lie on the person who committed the tort but also on the person who authorized it. Thus for any act authorized by the principal and done by the agent, both of them are liable.

The authority may be express or implied.

Ex: In Tilok Singh v Kailash Bharti when the owner of the motor cycle was outside the country, his younger brother took the motor cycle without his knowledge and caused the accident. It was held that the younger brother could not be deemed to be an agent of the owner of the motor cycle and the latter could not be vicariously made responsible for the accident.

II)     Partners

For the tort committed by any partner in the ordinary course of business, then all the other partners are to be held liable to the same extent as the guilty partner.

Ex: in Hamlyn v Houston & Co., one of the two partners of the defendant firm, acting within the general scope of his authority as a partner, bribed the plaintiff’s clerk and induced him to make the breach of contract with his employer (plaintiff) by divulging secrets relating to his employers business. It was held that both the partners of the firm were made liable.

III)    Master and Servant

If a servant does any wrongful act in the course of employment, the master is liable for it. The servant of course is also liable. However a master cannot be made liable for the act of an independent contractor.

 Ex: my car driver is my servant. If he negligently knocks down A, I will be held liable for that. But if I hire a taxi and the taxi driver negligently hits A, I will not be made liable towards A because the driver is not my servant but only an independent contractor.

 

DOCTRINE OF SOVEREIGN IMMUNITY

Sovereign immunity, or crown immunity, is a legal doctrine by which the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution.

Ex: In Baxi Amrik Singh v. Union of India, The truck was part of an Army Division which had moved to the Front during the 1971-Indo-Pak War. It was during the movement of this Division back to its permanent location after the war, that the accident took place. The truck was at that time carrying Jawans and rations. It was held by P&H High Court that the accident occurred during the exercise of sovereign functions of the State and consequently the Union of India could not be held liable for the tort committed by its servant-the driver of the military truck.

Ex: in Headmistress, Govt. Girls School v Mahalakshmi the aya, who was a servant of a govt. Managed girls school asked a young girl to bring water on the cycle carrier for school children, which was otherwise the duty of the aya. The spring from the cycle carrier suddenly came off and hit the girl in her right eye and she lost that eye. For this act of aya the school was held liable.