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1.Ques. Define Torts & Give its essential elements.

Ans. The term 'Tort' has been derived from the Latin word 'Tortum' which means
to twist or to crook or a wrongful act rather an act which is straight or lawful. The
word tort is equivalent the word wrong in English & delict in Roman. The word
tort was used first time in case of Boulten Vs Hardley.

Definition - Tort is completely based on common law of England which is


uncodified & also tort is a progressive law, so it is very difficult to give a certain
definition of this word, but various eminent jurists defined the term tort in
following manner -
Tort is a civil wrong which is repressible by an action for unliquidated & which is
other than a mere breach of contract or breach of trust Sec 2(m) of Indian
Limitation Act, 1963
Tort is a civil wrong for which the remedy is a common law activity for
unliquidated damages & which is not exclusively the breach of a contract or the
breach of a trust or other merely equitable obligation .Salmond
"Tortious Liability arises from the breach of duty primarily fixed by the law: this
duty is toward persons generally and its breach is redressible by an action for
unliquidated damages Winfield
Tort is an infringement of a right in Rem of private individual giving a right of
compensation at the suit of the injured party .Fraser
Essentials of Torts On the analysis of the above definitions we find some
common elements which are necessary to constitute a tort -
1. A wrongful act or omission committed by the one person;
2. The wrongful act or omission must result in legal damages to another person;
3. The wrongful act must be of such a nature as may give rise to a legal remedy in
the form of an action for damages.

Essentials of Torts

Act or Omission
Legal Damages

Legal Remedy

Damnum sine Injuria

Injuria sine Damnum

[1] Wrongful Act or Omission - To determine Liabilities in tort it must be proved


that the act or omission done by the one person was a wrongful. The act or
omission must be legally wrongful. Violation of moral, social & religious rights
does not come under the category of torts.
[2] Legal Damages - Another essential element is wrongful act or omission
committed by one person must result in legal damages to the other i.e. such act or
omission resulted into violation of legal rights of another person.
[3] Legal Remedy - To be successful in action for torts the last essential is that the
wrongful act or omission must come under the category of wrongs for which the
remedy is civil action for damages.

2.Ques. Whether breach of a moral, religious or social right constitutes tort?

Ans. To constitute a tort it is essential that a wrongful act or omission committed


by one person must result in legal damage to the other & the other person have
the right or legal Remedy. So, it is clear that only violation of legal right constitutes
tort, nor the violation of Moral, Religious or Social Right.

3.Ques. Whether tort is a codified law?


Ans. Tort is not a codified law in India, the reason behind that it is based on
Common law of England which is unwritten & uncodified. Secondly, it is an ever
growing law and the court is expanding its horizon continuously by recognizing
new tort. In India it is to be tried to codified tort in state of Karnataka as the name
of Law Of Torts.
4. Ques. How many sections are there in a Law of Torts?
Ans. Since torts is not codified in India, so there arise no question of having
sections in an uncodified law.
Can the same act be a tort, Crime & breach of contract In fact tort, crime and
breach of contract are three different kinds of wrongs, however there are certain
circumstances in which the same act may amount to tort, crime as well as breach
of contract. For e.g. - A purchase, a motor car and contracts the municipality that
he will not drive faster than a prescribed speed in the city. There is also a provision
in the Penal Code of that state that if A drives negligently with a fast speed he will
be punished. A committing the breach of the terms of the contract drives the car
negligently and fast and there by harms B. Here A is liable for his negligent act in
tort, crime as well as breach of contract. B is entitled to file a civil suit for
damages, the state will prosecute A in criminal court to get him punished and the
municipality will file a suit for the breach of contract.
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5.Ques. Discuss the rule of Damnum Sine Injuria. Or
Discuss the rule formulated in the case of Gloucester Grammar School or
Write a short note on the following in the reference of two Latin maxims-
1. Gloucester Grammar School
2. Ashby Vs White Or
Violation of a legal right it is actionable even without the proof of any damage
(Injuria sine Damnum), but when there is no violation of a legal right, no action
lies even though damage may have been caused to the plaintiff (Damnum sine
Injuria), discuss with the help of decided cases.
Ans. Damnum Sine Injuria - Damnum means damage in the form of money,
comfort & health, Injuria means violation of legal rights & Sine means without.
Thus it means harm which is caused without violation of legal rights; harm caused
without violation of legal rights is not actionable in the law of tort.
In Gloucester Grammar School case, the plaintiff suffered loss of fees because the
defendant set up a rival school next door. It was held that no action would lie
because there was no violation of any legal right of the plaintiff.
In Ushaben Vs Bhagyalaxmi Chitra Mandir the plaintiff filed a suit for a permanent
injunction against the defendants to restrain them from exhibiting the film
entitled Jai Santoshi Maa as it hurt her religious feelings. In this film Goddesses
Laxmi, Saraswati & Parvati are depicted as zealous of each other & they were
ridiculed. The court held that hurt of religious feelings has not been recognized as
a legal wrong therefore it is not actionable.
Injuria Sine Damnum - It means violation of legal rights without any damage to the
plaintiff. Violation of legal rights of a person is actionable, whether it has caused
any real harm or loss to him or not.
In Ashby Vs White, the defendant, a reputed officer in a parliamentary election,
wrongfully refused to take the vote of plaintiff, although the plaintiff did not suffer
any loss by this refusal because the candidate for whom he wanted to vote won in
spite of that. Holt, C.J said, - every injuria imports damage though it does not cost
the party one farthing. So the defendant was held liable to pay damages to
plaintiff.

Differences between Damnum Sine Injuria & Injuria Sine Damnum -


1. Nature In Damnum Sine Injuria harm is caused without violation of legal right
while injuria sine damnum is exactly opposite to it.
2. Damages Damnum sine injuria is not damageable while injuria sine damnum
is.
3. Right Damnum sine injuria is concerned with violation of moral rights while
injuria sine damnum is with violation of legal rights.
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6.Ques. Describe the Maxim Ubi jus ibi remedium.
Ans. Ubi jus ibi remedium - This maxim means that where there is a right there is
remedy. That is to say whenever a right is violated the person whose right has
been infringed has a remedy against the person who has violated it. The Maxim is
also said to mean that there is no wrong without a remedy, that is to say that
whenever someone is wrong he is given some remedy.
This principle has been established for the first time in the leading case of Ashby
Vs White. In this case The defendant, a reputed officer in a parliamentary
election, wrongfully refused to take the vote of plaintiff, although the plaintiff did
not suffer any loss by this refusal because the candidate for whom he wanted to
vote won in spite of that. Holt, C.J said, - every injuria imports a damage though
it does not cost the party one farthing. So the Defendant was held liable to pay
damages to plaintiff. ________________________

7.Ques. Write down the difference between-


[1] Tort & Crime
Ans. - Although both are right in rem though the following are distinction between
the two
1. Codified Tort is not a codified law while crime is codified in the form of I.P.C
1860.
2. Definition Tort is defined under section 2(m) of Indian Limitation Act while
crime is defined u/s 40 of IPC.
3. Nature Torts proceeding concerned with unliquidated damages while crimes
proceeding concerned with punishment or fine.
4. Enforceability In tort the action against the wrongdoers is initiated in a civil
court while in a crime, the legal proceedings are initiated in a criminal court.
5. Scope n tort the suit for damages is filed in the court against the wrongdoers
by the plaintiff himself whereas in crime proceedings are initiated against the
accused by the state.
6. Purpose In the tort the main aim is to re-compensate the plantiff for the loss
suffered by him from the wrongful act of the defendant, while in crime the main
task is to teach him a lesson by punishing the accused so that he may not repeat it
in future, as well as it becomes an example for others.
[2] Tort & Contract (Breach of Contract)-
Although both the proceedings of tort & contract are enforceable for damages by
civil court though they both are differ in the following manner
1. Codified - Tort is not a codified law while Contract is codified in the form if ICA
1872.
2. Right Tort is a right in rem while contract is a right in personam.
3. Privity Doctrine of Privity is not applicable in case of tort while it is applicable
in case of a Contract.
4. Nature - Torts proceeding concerned with unliquidated damages while
Contracts proceedings is with liquidated damages.
5. Scope In tort generally damages are determined by the court on the fact &
circumstances of the case while in contract the damages are fixed according to the
terms & conditions of contract.
6. Purpose In case of tort damages are of punitive nature while in contract
damages are of compensatory nature.
[3] Tort & Quasi Contract -
1. Codified - Tort is not a codified law while quasi contract is codified from sec. 68-
72 under ICA 1872.
2. Right - Tort is a right in rem while quasi contract is a right in personam.
3. Damages - In tort the claim is for such amount which was not given earlier
while in quasi Contract the claim for damages for the amount of money given for
definite service rendered in future .
4. Nature Torts Proceeding concerned with unliquidated damages while in quasi
contracts proceedings is with liquidated damages.
5. Scope - In tort generally damages are determined by the court on the fact &
circumstances of the case while in contract the damages are fixed according to the
terms & conditions of contract.
6. Purpose - In case of tort damages are of punitive nature while in contract
damages are of compensatory nature.
[4] Tort & Trust (Breach of Trust) -
1. Codified - Tort is not a codified law while trust is codified in the form of Trust
Act.
2. Nature - Torts proceeding concerned with unliquidated damages while trust
proceedings are with liquidated damages.
3. Enforceability The proceeding of tort is enforceable by common law court
while the proceeding of trust is by chancery court.
4. Relation Tort is related with the Common Law while trust is related with
property law.
5. Privity - Doctrine of Privity is not applicable in case of tort while it is applicable
in case of a Contract.

________________________
Ques. Define Defamation as tort and bring out the difference between Libel &
Slander also discuss its exception or defences.
Ans. A mans reputation is more valuable than other property. Everyman has the
right to protection of his reputation. Injury to ones reputation has been termed as
defamation. Defamation is an act which constitutes both civil & criminal liability.
The object of law of defamation is to maintain the balance between freedom of
speech and right of reputation.
Defamation is defined by the eminent jurist as under
Defamation is the publication of a statement which tends to lower a person in
the estimation of right thinking members of society generally or which tend to
make them shun or avoid that person ..Dr. Winfield
Defamation is the publication of false & defamatory statement regarding another
without any justification .Salmond
English Law Under English law there are two types of defamation i.e. Libel &
Slander
English Law

Libel Slander
Libel Libel is the defamation in a written permanent form, normally addressed to
the eye, through printed picture caricature, film etc. it is self prosecuted i.e. it
shall not be necessary to allege or prove special damage.
Slander It is the defamation in a oral, temporary form, normally addressed to
the ear, through words or gesture. It is not self prose cured i.e it shall be necessary
to allege or prove special damage.
Difference between Libel & Slander -
1. Nature In Libel the defamation statement is made in some permanent &
visible form, such as written printing & pictures etc while in slander defamation
statement is made by some spoken words whether visible or audible such as
gesture etc. it is therefore generally said that libel is addressed to the eye &
slander is addressed to the ears.
2. Scope Libel is actionable perse (in itself) i.e. without proof of actual damage,
where as slander is actionable only on proof of actual damage.
3. Injury - Libel is not merely an actionable tort but also a criminal offence while
slander is a civil injury only and not a criminal offence except in some cases.
4. Limitation Limitation for instituting criminal proceeding or civil suit against the
defendant for libel in 6 yr in England and 1 yr in India while in Slander it is 2 yr & 1
yr respectively.
Indian Law - In India both civil & criminal action can be taken against defamation.
Sec 499 of I.P.C defines defamation as publication of false statement with
intentions, while the liability for defamation in tort does not depend on the
motive or malice of the defendant. The distinction between Libel & Slander is not
recognized under Indian Law.
Essential of Defamation - In an action for defamation as tort, the plaintiff has to
prove the following essentials
Essentials of Defamation

Statement must Statement must Statement must


be defamatory refer to plaintiff be published
1. The statement must be defamatory A statement is defamatory if it tends to
injury the reputation of a person to whom it refer. Such a statement tends to
diminish the good opinion that other holds about the person and it has a
tendency to make other look at him with a feeling of hatred, Contempt, ridicule,
fear or dislike him in his profession or trade.
2. The statement must refer to the plaintiff In an action of defamation, the
plaintiff has to prove that the defamatory statement made by the defendant
referred to the plaintiff, through his name might not have seen expressly
mentioned in that statement.
3. Statement must be published Publication of defamatory matter is essential. If
there is no publication there is no injury to reputation and no action will arise. The
term publication in general means making a thinking public known but here it
means the act of making known to any person or persons other than the plaintiff
himself.
Defences in case of Defamation - The following are the defences generally taken in
following an action of defamation-

Defences
Truth Comment Privilege Apology

Absolute Privilege Relative Privilege


1. Justification of truth In an action for defamation, truth of the defamatory
statement is a complete defence. It is not necessary for the defendant to prove
that every words of the defamatory statement is true. It will be sufficient, if the
statement through not perfectly true is substantially correct.
2. Fair & Bona-fide Comment Every person is entitled to express his opinion on
matters of public interest is a good defence in an action for defamation.
3. Privileged Statement There are certain occasion which are so important that
those making statement up on them are not liable in defamation, even through
their statement are untrue & even malicious. The privilege is of two kinds-
(A) Absolute Privilege A statement is absolute privileged when no action lies
even through it is false, deliberate or defamation & made out of malice. The
defence of absolute privilege is available in :-
(a) Parliamentary Proceedings; (b) Judicial Proceedings; (c) Military & Naval
Proceedings; (d) State Proceedings
(B) Qualified Privilege In certain circumstances it is thought desirable that
reflection on the reputation of others although untrue, should not give rise to
tortious liability provided that they were not published with malice. The defence
of qualified privilege in an action against defamation may extend to the statement
has been made in discharge of a duty, or when the statement is made in self
defence or in public interest
4. Apology The offer or the making of an apology is not at common law, a
defence although it may be given in evidence in mitigation of damage. The plea of
apology is maintainable only when the person defamed accepted the apology.
Problem - Whether defamation of a deceased person can be made?
Solution - Defamation of deceased person is not a tort, but it is a crime. According
to Exp 1 of Sec 499- the statement may amount to defamation to impute
anything to a deceased person if the imputation would have been alive & it is
intended to hurt the feelings of his family or other relatives.
Problem - Whether defamatory statement from husband to wife or vise versa
constitutes defamation?
Solution - Legally husband & wife to be assume a single person, so defamatory
statement only by husband to his wife or vise versa would not amount to
defamation but if the defamatory statement is published, then it would amount to
defamation.
Also a communication between a husband & a wife does not amount to
publication. Example A writes to his wife B that X is dishonest person & also that
nobody else knows that. Then X cant sue A for defamations he has not made
publication of libel. Similarly the wife can safely communicate a defamatory
statement to her husband. But on the other hand, if the defendant makes a
statement to the wife or the husband of the plaintiff makes defamatory statement
of the other spouse, he makes a publication and is liable.
Problem - A abuse B in a alone room. Discuss the liability of A.
Solution - The most essential element of defamation is that defamation statement
should be published means It comes to the knowledge of any person other than
plaintiff himself. In the above problem there is no one else in a room who can
hear the abuses of A. So defamation would not constitute.
Problem A ordered to his servant that he did not make B to come in the shop
because B is a thief. Is this a defamatory statement?
Solution In the above problem A said thief to B in front of his servant means
the statement is published, so B can sue on A for defamation but the statement
of A is true then no defamation said to be constituted.
Problem A say..to a woman. Discuss the liability of A.
Solution - The essential element of defamation is that there should be the
publication of the defamatory statement. In the above problem if any other
person listened this statement of A then the woman sue for defamation against
A but if this is not listened by of any person other than plaintiff (woman), then
the woman cannot sue for defamation.
Innuendo - Sometimes the statements may not be Prima facie defamatory and
they appear to be innocent in their natural & ordinary sense but because of some
latent or secondary meaning the plaintiff may prove that they are defamatory &
carry a libelous meaning with reference to him. e.g., where a proprietor of a
newspaper published erroneously the news which he believed to be true, that the
plaintiff (a girl) had given birth to twins although she was married only a month
ago, he was held liable for defamation as it indirectly caused as perisions on the
character of the girl for giving birth to an illegitimate child.
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Ques. Discuss the rule of strict liability & Absolute liability.
Ans. Strict liability - This is a famous rule of English law. Under this rule the
defendant is liable for the harm even though the same is unintentional & also
without any negligence on the part of the defendant. The rule of strict liability was
formulated in 1868 by the House of Lords in Rylands Vs Fletcher & therefore it is
also known as Rylands Vs Fletcher rule.
In the above case Blackburn J, summarized the above rule as If the person who,
for his own purpose brings on his land & collects & keeps there anything likely to
do mischief it escapes must keep it as his peril & he does not do so, he is Prima
facie answerable for all the damage which is the natural consequences of its
escape though he had not been negligent.
Essential Elements - For application of the rule of strict liability, following essential
conditions must be present-
Essentials of Strict Liability

Some dangerous thing Non natural use of land Plaintiff suffered from damages
bought or collected on land
& it should be escaped

1. Some dangerous thing bought or collected on land - The first essential condition
for the application of the rule is that the defendant must have bought or collected
on his land & kept there some dangerous things or anything likely to do mischief if
it escapes like water, gas, electricity, poisonous trees, sewages, explosive etc.
2. Non natural use of land - Every person have a exclusive right to use his land but
he cant use his Land in non natural manner. The use of land is natural or not is
depend upon the fact & circumstances of each & every case.
3. Plaintiff suffered from damages - Move on ones land bringing or keeping a
dangerous thing & non natural use of land is not an actionable wrong, unless &
until plaintiff suffered some damage from that thing.
Exception (Defences) of strict liability - The rule of strict liability not follows in the
following conditions or following are the defences of defendant in case of strict
liability
Exceptions of Strict Liability

Plaintiffs own default Natural use of land Act of the stranger Mutual Benefit

Act of God Consent of the plaintiff Legal Authority


(Vis Major) (Volenti non fit injuria)

1. Plaintiffs own default - Where the damage is caused to the claimant solely by
his own act or default he shall have no remedy against the defendant. As in case
of Ponting Vs Noakes where in the plaintiffs horse reached over the defendants
boundary, nibbed some poisonous leaves & died, the plaintiff could not recover
anything because the damage was due to his own horses intrusion & there had
been no escape of vegetation.
2. Act of God (Vis Major) - The principle of strict liability does not apply for the
damage caused due to acts which are irresistible & beyond human contemplation
& caused due to operation of some superior force which is beyond human control.
3. Natural use of land - The rule of strict liability does not apply in the case where
the things are present on a persons land in the natural form or arise on the land,
even though they are dangerous.
4. Consent of the plaintiff -The rule of strict liability is not applicable in the cases
where the things which escapes was brought or kept upon defendants premises
by the defendant with the consent of the plaintiff. This exception is also called
volentin non fit injuria.
5. Act of the stranger - Where damage is caused due to wrongful act of a third
party or a Stranger over whom the defendant had no control the defendant will
not be liable.
6. Statutory Authority -Where the defendant acted in pursuance of special
statutory authority in placing the dangerous thing on the land from which it
escaped the rule is not applicable.
7. Common Benefit -If the dangerous thing has been bought on the defendants
land for the common benefit of both the plaintiff & the defendant, the defendant
will not be liable for harm caused by the escape of such things.
Ques. Whether the rule of Rylands Vs Fletcher applicable in India?
Ans. In a case of state of Punjab Vs M/s Modern Cultivators, the Supreme Court
expressly held that India is a agricultural based country so to store a water on land
is not to be considered unnatural use of land. Supreme Court held that, In India
the general rule in Ryland Vs Fletcher is accepted, though in some cases, the
principle in the case was considered to be modified in application to the Indian
conditions.