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1.

Evolution, Definition, Nature, Scope and


Object of Law of Torts

C J Rawandale,
Associate Professor
1.1. A wrongful act violation of duty imposed by law duty which is owed to
people generally (in rem)

1.2 Tort distinguished from crime and breach of contract

1.3 The concept of unliquidated damages

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Introduction

The word ‘tort’ is the French equivalent of the English word ‘wrong’ and
Roman term ‘delict’.

It is derived from the Latin word ‘Tortum’ which means ‘twisted’ or ‘crooked’
act, i.e. a deviation from straight or right conduct.

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In Jai Laxmi Salt Works (P) Ltd. V. State of Gujarat, (1994) 4 SCC 1,
Sahai, J. observed:

“Truly speaking entire law of Torts is founded and structured on morality


that no one has a right to injure or harm intentionally or even
innocently”.

In Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1


A.C. 32, Lord Bingham of Cornhill said:

“the overall object of tort law is to define cases in which the law may justly
hold one party liable to compensate another”.

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The main aims of law of torts are:

1. to define individual’s rights and duties in the light of prevalent standards of


reasonable conduct and public convenience.

2. compensation of victim/s or their dependent/s.

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Definition/s

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Section 2 (m) Limitation Act, 1963:

“Tort is a civil wrong which is not exclusively breach of contract or breach of


trust”.

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
the breach of a trust, or the breach of other merely equitable obligation”.

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Fraser

“A tort is an infringement of a right in rem of a private individual, giving a


right of compensation at the suit of the injured party”.

Winfield

“Tortious liability arises from the breach of duty primarily fixed by law; this
duty is towards persons generally and its breach is redressible by an action for
unliquidated damages”.

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What is liability?

Liability arises from breach of duty or a wrong.

It is something which a person must do or suffer on account of his failure to do


which he ought to have done (duty).

A person has choice in fulfilling his duty whereas liability arises independent
of one’s choice.

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‘Person’

Salmond

“A person is any being whom the law regards as capable of rights and duties”.

Erray

“A person is an entity on which rights and duties may be attributed”.

These two definitions show that the concept of personality is linked with the
conception of right.

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Kinds of Person

Persons in law are of two kinds.

I. Natural Person: - A natural person is a being on whom law attributes personality in


accordance with reality and truth.

Holland defines a natural person as “such a human being as is recognized by the law as
capable of rights and duties- in language of Roman law is having a status”.

II. Legal Person: - Legal persons are beings, real or imaginary, to whom the law
attributes personality by way of fiction, when there is none in fact.

Salmond

“Legal person is any subject matter other than human beings to which law attributes
personality”.

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Whether Child (foetus) in the Womb is a
person?

In Walker v. Great Northern Railway, (1890) 28 LR Ir. 69, [Irish Case] the
infant claimed 1.030 Pound as damages from the railway company. It was held
that the infant could not maintain an action. (Ireland)

The Unborn Victims of Violence, Act 2004 has granted personhood to a


human foetus. (United States of America)

Congenial Disabilities (Civil Liability) Act, 1976 gives a right of Action to


an infant if he is born disabled due to the fault of some other person. (United
Kingdom)

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India

Section 13 of the Transfer of Property Act, 1887 (Transfer for benefit of


unborn person)

Section 113 of the Indian Succession Act (Bequest to person not in existence
at testator’s death subject to prior bequest)

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Section 11 of the Indian Penal Code: - The word “person” includes any
Company or Association or body of persons, whether incorporated or not.

Section 11 of the IPC has not define the term “person’ in a narrow and
technical sense but has given a wider meaning to the term to include both a
natural person (a human being, whether a man or a woman) and an artificial or
juridical person.

In Jabbar v. State, AIR 1966 All 550 (593) the court held that a child in the
womb whose body has sufficiently developed to have a separate identity of its
own is a person.

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Kanta Mohanlal Kotecha v. The Branch Manager, United India
Insurance Co. Ltd. (Reported in the Times of India Tuesday, March 6, 2007)

Is an unborn child a consumer entitled to insurance coverage?

A pregnant woman is a consumer. But can the foetus in the womb be


considered a separate entity in respect of which an insurance claim can be
made?

This unique and interesting case has recently been decided through a landmark
judgment of the Maharashtra State Commission in this case. The judgment
was delivered on 6 November, 2006 by Justice B.B. Vagyani on behalf of the
bench presided over by him along with members P.N. Kashalkar and Swati
Lele.

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According to science, during the second trimester of pregnancy- from the 13th
to the 27th week- the embryo turns into a foetus and attains a recognizable
human form.

The scientific terminology “human foetus” implies that a human is present


where the organism is alive and growing and possessing a unique genetic code.
Hence an unborn child in the womb is living is entitled to personhood.

The Maharashtra State Commission decreed that an unborn foetus should be


considered as a separate entity with respect to insurance claims.

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Distinction between Torts & Crime

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1. Tort is a less serious wrong whereas Crime is more serious wrong.

2. To make one liable under law of torts, one must prove fault, negligence or
wrongful intent on the part of the defendant. Generally speaking, intention
does not form an essential element to make one liable under Law of Torts.

In case of Crime one must prove both act as well as intention.

Exception: Doctrine of Strict Liability

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3. Tort being a private wrong, the injured party himself has to file a suit as a
plaintiff.

On the other hand, the criminal proceedings against the wrongdoer are not
brought by the injured party but by the State. In case of the crime, even though
the immediate victim is an individual, the criminal wrong is considered to be a
public wrong i.e. a wrong against the State.

Exception: Section 497 Adultery; Section 499 IPC Defamation

4. In case of tort, the plaintiff may agree to compromise with the tort-feasor
and withdraw the suit filed by him.

In case of Crime, in general the compounding of offence is considered to be


unlawful. Except in certain exceptional cases, the law does not permit a
settlement between the wrongdoer and the aggrieved party [Section 320
Cr.P.C gives a list of compoundable offences and the persons by whom
particular offences areCcompoundable].
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5. In case of Tort, the object of law is payment of compensation i.e. to make
good the loss suffered by him.

Exception: Under Section 57 Cr.P.C. a judgment debtor may be arrested and


imprisoned in execution of a decree. Such a person is released even before the
expiration of fixed term, if the decree is satisfied.

In case of Crime, the object of law is punishment of the offender.

Exception: Section 357 Cr.P.C. 1973 even a Criminal Court while passing
judgment may order that the injured party may be paid compensation out of
the fine imposed.

In England, compensation payments are made under the Powers of Criminal


Courts Act 1973. Further the Criminal Injuries Compensation Scheme 1964
makes ex gratia payments to victims of violent crime.
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Felonious Tort

Sometimes, the same set of facts may constitute both a tort and a crime. Such
wrongs are called as “Felonious Torts”.

The civil and criminal remedies in such a case are not alternative but are
concurrent. E.g. Defamation, Negligence, Nuisance etc.

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Distinction Between Tort & Contract

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1. In case of tort, the wrong committed is violation of right in rem whereas in
case of contract it is violation of right in personam.

2. In case of Torts, the duty is primarily fixed by law whereas in Contract, it is


fixed by the parties to the contract with their free consent.

In a contract, the duty is based on the privity of contract and each party owes
duty only to the other contracting parties. Duties imposed by law under law of
torts are not towards any specific individual or individuals but they are
towards the world at large.

3. Damages in case of contract may be liquidated or unliquidated. In Torts, the


damages are always unliquidated.

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There may be certain cases when the same fact results in a breach of contract
as well as a tort.

E.g. 1. Due to negligence of a driver, a railway passenger is injured, the


railway authorities are liable for the breach of the contract of safe carriage, and
there is also tort of negligence which results in damage to the passenger.

2. If I leave my horse with my neighbour for one week and go out and the
neighbour allows the horse to die of starvation, there is 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.

One must remember that 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.

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Doctrine of privity of contract fallacy & the
Exception

Winterbottom v. Wright, (1842) 10 M & W. 109- When A’s wrongful act


results in the breach of a contract which he had entered into with B and also
the commission of a tort against C, it was thought that just like B, C has also to
show privity of contract before he can bring an action for tort.

This rule lost its sanctity in 1932.

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Donoghue v. Stevenson, (1932) A.C. 562.

A went to a restaurant with a woman friend and bought one bottle of ginger
beer manufactured by the defendants. The woman consumed part of the
contents but when the remainder was poured into the glass, she observed the
decomposed body of a snail in it. The ginger beer bottle, being made of dark
opaque glass and sealed with metal cap, the presence of snail could not have
been observed earlier.

The woman brought n action against the manufacturer for negligence and
alleged that by taking a part of the contaminated drink, she had contracted
serious illness.

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The House of Lords held that the manufacturer owed her a duty to take care
that the bottle did not contain noxious matter injurious to health.

Referring to the liability of the manufacturer of food articles Lord Macmillan


observed: “The duty, in my opinion, he owes to those whom he intends to
consume his product”.

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Klaus Mittelbachert v. East India Hotels Ltd. AIR 1997 Del 201.

There was a contract between Lufthansa, a German Airlines and Hotel Oberoi
Inter-Continental of Delhi for the stay of the crew of Lufthansa as guests in the
hotel. The plaintiff Klaus Mittelbachert, a co-pilot in Lufthansa stayed in the
hotel for a few days. During his stay, as a plaintiff took a dive in a swimming
pool in the hotel, due to defective design of the swimming pool, his head hit
the bottom of the pool and he received serious head injuries. As a consequence
of that, he was paralysed and continued in agony for 13 years before he died.
In an action for damages by the plaintiff, one of the defences pleaded was that
he was a stranger to contract, as the contract for stay was made between the
employer, i.e. Lufthansa and the hotel. The plea was rejected.

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It was held that he could sue under contract as a beneficiary of the contract.
Moreover, for an action under Law of Torts, for compensation the plea of
stranger to contract was irrelevant.

Due to hazardous nature of the premises, the rule was absolute liability was
applied and the defendants were required to pay exemplary damages
amounting to 50 lac rupees.

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Essentials of a Tort

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To constitute a tort, it is essential that the following two conditions are
satisfied;

1. There must be some act or 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.

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1. 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.

E.g. A commits the act of trespass or publishes a statement defaming another


person, or wrongfully detains another person; he can be made liable for
trespass, defamation or false imprisonment, as the case may be.

One must note that the wrongful act or a wrongful omission must be one
recognized by law. If there is a mere moral or social wrong, there cannot be a
liability for the same.

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Glasgow Corporation v. Taylor, (1922) 1 A.C. 44

If a corporation, which maintains a public park, fails to put proper fencing to


keep the children away from a poisonous tree and a child plucks and eats the
fruits of the poisonous tree and dies, the Corporation would be liable for such
omission.

Municipal Corporation of Delhi v. Subhagawanti, AIR 1966 SC 1750

Municipal Corporation, having control of a clock tower in the heart of the city
does not keep it in proper repairs and the falling of the same results in the
death of a number of persons, the Corporation would be liable for its omission
to take care in the matter.

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2. 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, unless there has been violation of a legal right, there can be no
action under law of torts.

This makes it necessary to discuss the following two maxims:

a. Injuria Sine Damno

b. Damnum Sine Injuria

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a. Injuria Sine Damnum

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 respect of money,


comfort, health or the like.

Sine means without.

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

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There are two kinds of torts:

1. those torts which are actionable per se, i.e. actionable without the proof of
any damage or loss. E.g. Trespass to land is actionable even though no damage
has been caused as a result of the trespass;

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

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Illustrations

If a claimant 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.

If a tenant makes improvements to the property leased without the right to do


so, the tenant commits the tort of waste and is liable for damages even though
the premises may be improved and rendered more valuable by the alterations.

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Ashby v. White, (1703) 2 Lord Raym 938; (1703) 1 Sm. L.C. 13th ed., 253

The plaintiff was a qualified voter at a Parliamentary election. The defendant,


a returning officer wrongfully refused to take plaintiff’s vote. The Plaintiff
suffered no damage as the candidate for whom he wanted to vote won the
election in spite of that. The defendant was held liable.

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Bhim Singh v. State of J. & K. AIR 1986 SC 494

The petitioner, an M.L.A. of Jammu & Kashmir, was wrongfully detained by


the police while he was going to attend the Assembly session. Further he was
not produced before the Magistrate within the requisite period. As a
consequence of this, he was deprived of his constitutional right to attend the
Assembly 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 by way of consequential relief, exemplary damages
amounting to Rs. 50,000 were awarded to him.

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b. Damno Sine Injuria

It means damage which is not coupled with an unauthorised interference with


the plaintiff’s lawful right.

Gloucester Grammar School Case (1410) Y.B. Hill 11 Hen, 4 of 47, P.21,
36

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. Thus claimed the compensation for
the loss caused. It was held that the plaintiffs had no remedy for the loss thus
suffered by them.

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Mogul Steamship Co. v. McGregor Gow and Co. (1893) 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 extend their trade and increase their profits.

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Ushaben v. Bhagyalaxmi Chitra Mandir, AIR 1978 Guj. 13

The plaintiff contended that the film “Jai Santoshi Maa” hurt the religious
feelings of the plaintiff in so far as Goddesses Saraswati, Laxmi, and Parvati
were depicted as jealous and were ridiculed and thus sued for a permanent
injunction against the defendants to restrain them from exhibiting the film.

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.

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Ubi Jus Ibi Remedium

The law of torts is said to be a development of the maxim ‘ubi jus ibi
remedium’.

It means that where there is a right there is remedy.

In other words, whenever the right is violated the person whose right has been
infringed has remedy against the person who has violated it.

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A tort is a civil wrong for which the remedy is an action for unliquidated
damage, thus the main remedy for tort is an action for damage.

This principle explains about the right of an injured person to damage which
brings such wrongful act within the category of torts.

It should however be noted that the maxim does not mean that there is legal
remedy for every moral or politic wrong.

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Questions, If any…

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Thank YOU!

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