Law on Tort

Definition of Tort-

Tort derived from the Latin word tortum, which means to twist. It includes that conduct which
is not straight or lawful. It is equivalent to the English term wrong.

Salmond- It 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 trust or other merely equitable obligation.

We may define tort as a civil wrong which is redressible by an action for unliquidated damages
and which is other than a mere branch of contract or breach of trust.

Distinction between Tort and crime-

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

Distinction between Tort and breach of contract-

Breach of contract Tort

i) It results from breach of a duty undertaken i) It occurs from the breach of such duties
by the parties themselves. which are not undertaken by the parties but
which are imposed by law.
ii) In contract, each party owes duty to the ii) Duties imposed by law of torts are not
other. 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.

Distinction between Tort and Breach of trust-

Tort Breach of Trust

i) Damage of tort is unliquidated. i) Damage of breach of trust is liquidated.
ii) Law of tort was part of common law. ii) Law of trust was part of Court of Chancery.
iii) Tort is partly related to the law of property. iii) Trust is a branch of law of property.

Latin terms and maxims-

Causa causans- An immediate and effective cause.

Causa sine quanon- A necessary cause; the cause without which the thing cannot be or the event
would not have occurred.

Some preceding link but for which the causa causans, that is, the immediate cause could not have
become operative.

East India Commercial Co. v. Collector of Customs, AIR 1962-

Municipal Board v. State Transport Authority, AIR, 1965-

Prem Bus Service v. R.T.A, AIR 1968-

Chockalingam v. C.I.T, AIR, 1963-

Inayatullah v. Custodian, Evacuee Property, AIR, 1958-

Volenti non fit injuria- There is no injury to one who consents.

Hall v. Brooklands Auto Racing Club- The plaintiff was a spectator at a motor car race being held
at Brooklands on a track owned by the defendant company. During the race, there was a collision
between two cars, one of which was thrown among the spectators, thereby injuring the plaintiff. It
was held that the plaintiff impliedly took the risk of such injury, the danger being inherent in the
sport which any spectator could foresee, the defendant was not liable.
Padmavati v. Dugganaika- While the driver was taking the jeep for filling petrol in the tank, two
strangers took lift in the jeep. Suddenly one of the bolts fixing the right front wheel to the axle
gave way toppling the jeep. The two strangers were thrown out and sustained injuries, and one of
them died as a consequence of the same.

It was held that neither the driver nor his master could be made liable, first, because it was a case
of sheer accident and, secondly, the strangers had voluntarily got into the jeep and as such, the
principle of volenti non fit injuria was applicable to this case.

Wooldrige v. Sumner- The plaintiff, who was a photographer, was taking photographs at a horse
show while he was standing at the boundary of the arena. One of the horses, belonging to the
defendant, rounded the bend too fast. As the horse galloped furiously, the plaintiff was frightened
and he fell into the horses course and there he was seriously injured by the galloping horse. The
horse in question won the competition. It was held that since the defendants had taken due care,
they were not liable. The duty of the defendants was the duty of care rather than duty of skill.

Ex turpi causa non oritur actio No action arises from a wrongful consideration.

Hardy v. Motor Insurers Bureau- This was a case where a security officer was dragged along
when he tried to stop a car. Lord Denning MR said: no person can claim reparation or indemnity
for the consequences of a criminal offence where his own wicked and deliberate intent is an
essential ingredient in it It is based on the broad rule of public policy that no person can claim
indemnity or reparation for his own wilful and culpable crime. He is under a disability precluding
him from imposing a claim.

Revill v. Newberry- An elderly allotment holder was sleeping in his shed with a shotgun, to deter
burglars. On hearing the plaintiff trying to break in, he shot his gun through a hole in the shed,
injuring the plaintiff. At first instance, the defendant successfully raised the defence of ex turpi to
avoid the claim.

Damnum sine injuria Damage without wrongful act; damage or injury inflicted without any act
of injustice; loss or harm for which there is no legal remedy. It is also termed damnum absque
injuria.

There are cases in which the law will suffer a man knowingly and wilfully to inflict harm upon
another, and will not hold him accountable for it.
Gloucester Grammar School Case- 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.

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 defendant had by lawful
means acted to protect and extend their profits.

Ushaben v. Bhagyalaxmi Chitra Mandir 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 Goddesses 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.

Action v. Blundell The defendants by digging a coal pit intercepted the water which affected
the plaintiffs 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 neighbours
well, this inconvenience to his neighbour falls within description damnum abseque injuria which
cannot become the ground of action.

Injuria sine damno- This maxim means injury without damage. Wherever there is an invasion
of a legal right, the person in whom the right is vested is entitled to bring an action and may be
awarded damages although he has suffered no actual damage. Thus, the act of trespassing upon
anothers land is actionable even though it has done the plaintiff not the slightest harm.

Ashby v. White

Bhim Singh v. State of J & K The petitioner, an MLA, of J & K 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 wad
deprived of his constitutional right to attend the Assembly session. There was also violation of
fundamental right guaranteed under 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 50,000 were awarded to him.

More

Terminologies

Malice- A condition of mind which prompts a person to do a wrongful act wilfully, that is, on
purpose, to the injury of another, or to do intentionally a wrongful act toward another without
justification or excuse.

In its legal sense it means a wrongful act done intentionally without just cause or excuse.

Malice is a wish to injure a party, rather than to vindicate the law. Malice of two types:

i) Malice in fact

ii) Malice in law

Malice in fact Means an actual malicious intention on the part of the person who has done the
wrongful act. It is also called express or actual malice.

Malice in law It is not necessarily personal hate or ill will, but it is that state of mind which is
reckless of law and of the legal rights of the citizen.

Motive Motive is that which incites or stimulates a person to do an act. It is the moving power
which impels to action for a definite result.

Motive is mainspring of human action. It is cause or reason. It is something which prompts a man
to form an intention.
Intention A settled direction of the mind towards the doing of a certain act; that upon which the
mind is set or which it wishes to express or achieve; the willingness to bring about something
planned or foreseen.

Injury- In legal parlance, injury means any wrong or damage done to another, either in his
person, rights, reputation or property.

Meaning under Penal Code, 1860 (section 44) the word injury denotes any harm whatever
illegally caused to any person, in body, mind, reputation or property.

Hurt Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.

Malfeasance it is a wrongful act which the actor has no legal right to do, or any wrongful conduct
which affects, interrupts, or interferes with performance of official duty, or an act for which there
is no authority or warrant of law or which a person ought not to do at all, or has contracted not, to
do.

The word malfeasance would apply to a case where an act prohibited by law is done by a person.
(Khairul Bahsar v. Thana Lal AIR 1957)

Misfeasance Unlawful use of power; wrongful performance of a normally legal act; injurious
exercise of lawful authority; official misconduct; breach of law.

The word misfeasance would apply to a case where a lawful act is done in an improper manner.

Nonfeasance - Non performance of some act which ought to be performed, omission to perform
a required duty at all, or total neglect of duty.

Nonfeasance would apply to a case where a person omits to do some act prescribed by law.
Distinction between Misfeasance, nonfeasance and malfeasance Misfeasance is the
improper doing of an act which a person may wilfully do. Nonfeasance means the omission of an
act which a person ought to do. Malfeasance is the doing of an act which a person ought not to do
at all.

Remedies

Remedies are of two types- (i) judicial and (ii) extra-judicial.

Judicial remedy is of three types:

(i) Damages, (ii) Injunction and (iii) Restitution of property

Types of damages -

a) Exemplary or Vindictive damages are damages on an increased scale, awarded to the

plaintiff over and above what will barely compensate him for his property loss, where the
wrong done to him was aggravated by circumstances of violence, oppression, malice etc.

b) Ordinary or Real damages are compensation for general damage. General damages are those
which the law implies in every breach of contract and in every violation of a legal right.

c) Nominal damages They are awarded for the vindication of a right where no real loss or
injury can be proved.

d) Contemptuous damages -

Injunction- A judicial process operating in personam, and requiring a person to whom it is

directed to do or refrain from doing a particular thing. Law as to the injunction is contained in the
Specific Relief Act 1963 and the CPC 1908. Types of injunction
(i) Mandatory When, to prevent the breach of an obligation, it is necessary to compel the
performance of certain acts, the Court may in its discretion grant an injunction to prevent the
breach (s. 55 of the Specific Relief Act, 1877).

(ii) Permanent or perpetual By perpetual injunction a defendant is perpetually enjoined from

the assertion of a right, or from the commission of an act, which would be contrary to the rights
of the plaintiff (s. 53, the Specific Relief Act, 1877).

(iii) Temporary Temporary injunction is such as is to continue until a specified time, or until
the further order of the Court. It is regulated by the CPC (s. 53, The Specific Relief Act, 1877;
CPC Order XXXIX Rule 1.

(iv) Ad-interim -

Restitution of property Restitution means restoration of anything to its rightful owner.

Extra-judicial remedies are-

i) Self defence The use of force to protect oneself, ones family, or ones property from a real
or threatened attack.

ii) Expulsion of trespassers Forcibly evicting the trespasser.

iii) Reception of chattels Chattel means movable or transferable property; personal property.

iv) Re-entry of land

v) Abatement of nuisance Abatement is the act of eliminating or nullifying; the act of lessening
or moderating.

vi) Distress damage feasant the right to seize animals or inanimate chattels that are damaging
or encumbering land and to keep them as security until the owner pays compensation.

Who may sue and who may be sued

Every person can sue in case of tort including the minor with the consent of his guardian or the
court.

The following persons cannot sue-

i) Citizen of foreign state If a citizen of foreign country wants to file a suit against a
Bangladeshi or a other citizen of foreign country, he has to file an application to the Home
Ministry through the Law Ministry (s. 83 of CPC)

ii) Alien enemy Every person residing in a foreign country the Government of which is at war
with, or engaged in military operations against Bangladesh and carrying on business without
a license will be regarded as an alien enemy.

Alien enemies residing in Bangladesh with the permission of the Government, and alien
friends may sue. No alien enemy residing in Bangladesh without such permission or residing
in a foreign country shall sue (s. 83 of CPC)

iii) Foreign state A foreign state cannot sue unless it is recognized by the Government.

vi) Bankrupt The guiding law in this regard is the Bankruptcy Act, 1997. If a person is declared
insolvent, his properties are taken over and a receiver is appointed as the supervisor of that
property. A bankrupt cannot sue as long as civil wrongs are concerned.

v) Felons/Convicts Felon is a person who has been proven guilty and declared with punishment
but fled away. Convict is a person who has been proven guilty but has not fled away.

A felon cannot file a suit. But a convict can file a suit.

vi) Corporation A corporation gets a legal entity when it is registered. No unregistered

corporation can file a suit.

vii) Child in mothers womb This is called pre-natal injuries.

Walker v. G.N. Ry. Co. of Ireland the plaintiff, a child, sued the railway company for damages
on the ground that he had been born crippled and deformed because the injury was caused to
it (before birth) by an accident due to railways negligence, when the plaintiffs pregnant
mother travelled on the defendants railway. It was held that the defendants were not liable for
two reasons. Firstly, the defendants did not owe any duty to the plaintiff as they did not know
 about his existence; secondly, the medical evidence to prove the plaintiffs claim was very
uncertain.

Montreal Tramways v. Leveille The Supreme Court of Canada allowed an action by a child
born with club feet two months after an injury to its mother by the negligence of the defendants.

Majority of the writers are in favour of the view that an action for pre-natal injuries should also
be recognized, once that the act of the defendant is considered to be tortious.

Who may not be sued -

i) President/head of the state According to Article 51(1) and 51(2) of the Constitution, no civil
or criminal suit can be filed against the President as long he is holding the post of the President.

ii) Foreign sovereign No suit can be filed against a foreign sovereign unless a consent to the
same is obtained from that sovereign (s. 86 & 87).

iii) Ambassador / High Commissioners High Commission is an embassy from one

commonwealth country to another.

iv) Public servants The list of the public servants are given in s. 21, 13 & 14 of the Penal Code,
1860. Also who are appointed through PSC are to be regarded as public servants.

An application for consent from the Government is required before filing a suit against them.

v) Corporation Unless it is a registered corporation, a suit cannot be filed against it.

vi) Infant / Minor According to the Penal Code, a minor is a child of 9 12 years. But age of
the minor varies in various Statues.

vii) Unsound mind There are

various Act for lunatics and unsound minds, e.g. the Lunacy Act, 1912.

Negligence
Essentials of negligence-

i) The defendant owes a duty of care to the plaintiff;

ii) The defendant made a breach of that duty; and

iii) The plaintiff suffered damage as a consequence thereof.

i) The defendant owes a duty of care to the plaintiff

It means a legal duty rather than a mere moral, religious or social duty. There is no general rule of
law defining such duty. It depends in each case whether a duty exists.

Donoghue v. Stevenson A purchased a bottle of ginger beer from a retailer for the appellant. She
consumed that and seriously suffered in her health. She found some snail at the bottom of the
bottle. She sued for compensation. The defendant pleaded that he did not owe any duty of care
towards the plaintiff. The House of Lords held that the manufacturer owed her a duty to take care
that the bottle did not contain any noxious matter, and that he would be liable on the breach of the
duty.

Palsgraaf v. Long Island Railroad Co. The plaintiff with a package was trying to board a moving
train. Two servants of the defendant came to help her. One of them pushed her from the back. At
this moment the package fell on the rail track. The package contained fireworks and it exploded.
The plaintiff was injured. She sued the defendants alleging negligence on the part of their servants.
It was held that she could not recover. Cardozo CJ said, the conduct of the defendants servant was
not wrong. Relatively to her it was not negligence at all.

Duty depends on reasonable foreseeability of injury

If at the time of omission, the defendant could reasonably foresee injury to the plaintiff, he owes a
duty to prevent that injury and failure to do that makes him liable.

No liability when injury is not foreseeable

Glasgow Corp. v. Muir The manageress of the defendant Corporation tea-rooms permitted a
picnic party. Two members of the picnic party were carrying a urn of tea through a passage. There
were some children buying sweets and ice-cream. Suddenly, one of the persons lost his grip and
the children including Eleanor Muir were injured. It was held that the manageress could not
anticipate that such an event would happen as a consequence of tea urn being carried through the
passage, and, therefore, she had no duty to take precautions against the occurrence of such an
event.

Reasonable foreseeability does not mean remote possibility

Bolton v. Stone A batsman hit a ball and the ball went over a fence and injured a person on the
adjoining highway. This ground had been used for about 90 years and during the last 30 years, the
ball had been hit in the highway on about six occasions but no one had been injured. The Court of
Appeal held that the defendants were liable for negligence. But the House of Lords held that the
defendants were not liable on the basis of negligence.

Duty of care Booker v. Wenborn (1962) - The defendant boarded a train which had just started
moving but kept the door of the carriage open. The door opened outside, and created a danger to
those standing on the platform. The plaintiff, a porter, who was standing on the edge of the platform
was hit by the door and injured. It was held that the defendant was liable because a person boarding
a moving train owed a duty of care to a person standing near it on the platform.

ii) Breach of duty Breach of duty means non-observance of due care which is required in a
particular situation. The law requires taking of two points into consideration to determine the
standard of care required: (a) the importance of the object to be attained, (b) the magnitude of the
risk, and (c) the amount of consideration for which services, etc. are offered.

(a) The importance of the object to be attained

K. Nagireddi v. Government of Andhra Pradesh Due to construction of a canal by the state

government, all the trees of the plaintiffs orchard died. The plaintiff alleged that the government
due to negligence did not cement the floor. It was held that the construction of canal was of great
importance and to not cementing the floor was not negligence from the state government.

(b) The magnitude of risk

Kerala State Electricity Board v. Suresh Kumar A minor boy came in contact with overhead
electric wire which had sagged to 3 feet above the ground, got electrocuted thereby and received
burn injuries. The Electricity Board had a duty to keep the overhead wire 15 feet above the ground.
The Board was held liable for the breach of its statutory duty.
(c) The amount of consideration for which services, etc. are offered

Klaus Mittelbachert v. East India Hotels Ltd. the question of liability of a five star hotel arose
to a visitor, who got seriously injured when he took a dive in the swimming pool. It was observed
that there is no difference between a five star hotel owner and insurer so far as the safety of the
guests is concerned. It was also observed, a five star hotel charging high from its guests owes a
high degree of care as regards quality and safety of its structure and services it offers and makes
available.

iii) The plaintiff suffered damage It is also necessary that the defendants breach of duty must
cause damage to the plaintiff. The plaintiff has also to show that the damage thus caused is not too
remote a consequence of the defendants negligence.

Res ipsa loquitur- It means the things itself speaks. When the accident explains only one thing
and that is that the accident could not ordinarily occur unless the defendant had been negligent,
the law raises a presumption of negligence on the part of the defendant.

Hambrook v. Stokes Bors. Soon after parted with her children in a narrow street, a lady saw a
lorry violently running down the narrow street. When told by some bystander that a child
answering the description of one of her children had been injured, she suffered a nervous shock
which resulted in her death. The defendant was held liable.

Dickson v. Reuter

Contributory negligence

When the plaintiff by his own want of care contributes to the damage caused by the negligence or
wrongful conduct of the defendant, he is considered to be guilty of contributory negligence. This
is a defence in which the defendant has to prove that the plaintiff failed to take reasonable care of
his own safety and that was a contributing factor to harm.

Rural Transport Service v. Bezlum Bibi (1980) The conductor of an overcrowded bus invited
passengers to travel on the roof of the bus. The driver ignored the fact that there were passengers
on the roof and tried to overtake a cart. As a result, a passenger was hit by a branch of tree, fell
down, received injury and died. It was held that both the driver and the conductor were negligent
towards the passengers, there was also contributory negligence on the part of the passengers
including the deceased, who took the risk of travelling on the roof of the bus.

Yoginder Paul Chowdhury v. Durgadas (1972) The Delhi High Court has held that a pedestrian
who tries to cross a road all of a sudden and is hit by a moving vehicle, is guilty of contributory
negligence.

Doctrine of alternative danger

There may be certain circumstances when the plaintiff is justified in taking some risk where some
dangerous situation has been created by the defendant. The plaintiff might become nervous by a
dangerous situation created by the defendant and to save his person or property, he may take an
alternative risk. If in doing so, the plaintiff suffered any damage, he will be entitled to recover
from the defendant.

Jones v. Boyce (1816) The plaintiff was a passenger of defendants coach. The coach was driven
so negligently that the plaintiff jumped off the bus fearing an accident and broke his leg. It was
held that the plaintiff would be entitled to recover.

Shayam Sunder v. State of Rajasthan (1974) Due to the negligence on the part of the defendants,
a truck belonging to them caught fire. One of the occupants, Navneetlal, jumped out to save himself
from the fire, be struck against a stone lying by the roadside and died. The defendants were held
liable.

Negligence in our laws

The Penal Code, 1860

s. 284 If anyone has custody of poisonous substance and fails to guard against probable danger
is punishable with 6 month or 1000 taka or with both.

s. 285 - If anyone acts rashly or negligently to endanger human life with fire or combustible
substance is punishable with 6 month or 1000 taka or with both.
s. 286 If anyone acts rashly or negligently to endanger human life with explosive substance is
punishable with 6 month or 1000 taka or with both.

s. 287 If anyone acts rashly or negligently to endanger human life with any machinery is
punishable with 6 month or 1000 taka or with both.

s. 288 If anyone in pulling down or repairing any building knowingly or negligently omits to
guard against probable danger to human life, he will be punishable with 6 months or 1000 taka or
with both.

s. 289 If anyone knowingly or negligently omits to take such order with any animal in his
possession as is sufficient to guard against any probable danger to human life or any probable
danger or grievous hurt from such animal, shall be punished with 6 months or 1000 taka or with
both.