04/22/23 1

GENERAL PRINCIPLES OF LIABILITY IN TORT

• MODULE- II • MODULE- II

Module- II General Principles of Liability in Tort

( Sessions- 05)

I. Constituents of Tort – Wrongful Act/ Omission, Legal Damage and Legal Remedy

II. Essential Conditions of Liability- Injuria Sine Damno- Damno Sine Injuria, Malice and Motive

III. Schools- Law of Tort or Law of TortsIV. Capacity – who can sue and who can be sued?V. Remedies and Extinction of Liability in TortLegal Text: Indian Succession Act, 1925Motor Vehicle Accident Act, 1988Indian Majority Act, 1999Specific Relief Act, 1963

04/22/23 2

Cases on Module II

1. Municipal Corporation of Delhi vs. Subhagwanti, AIR 1966 SC 1750

2. Bhim Singh vs. State of J&K, AIR 1968 SC 4943. Ashby v. White, 1703 4. Constantine vs. Imperial Hotel Ltd., (1944) KB 6935. Gloucester Grammar School Case 1410 YB 116. Mogul Steamship Co. vs. Mc Gregor Grow and Co.,

1892 AC 257. Mayor of Bradford Copn. vs. Pickles, (1895) AC 5878. Glasgow Copn. Vs. Taylor (1922) 1 AC 44

04/22/23 3

General Conditions- Liability For A TortGeneral Conditions- Liability For A Tort

• Alterum non leadere- to hurt nobody by word or deed• An action of tort is usually a claim for pecuniary (monetary)

compensation in respect of damage suffered as the result of the invasion of a legally protected interest.

• Tort consists of an act or omission by the defendant which causes damage to the claimant. The damage must be caused by the fault of the defendant and must be a kind of harm recognised as attracting legal liability.

• This model can be represented:• act (or omission) + causation + fault + protected interest +

damage = liability

04/22/23 4

04/22/23 5

Constituent of tort

04/22/23 6

Act or omission Either a wrongful act or an omission which is illegally

made will make a person liable. Wrongful Act: Eg; Violation of a legal right by

committing the act of trespass/ defamation. Example of omission Glasgow Corp v Taylor [1922] 1 AC 44 • 7 year old died after eating poisonous berries in park.

Def. knew of the berries but took no precautions against children. Omission of legal duty to put proper fencing to keep the children away.

• It does not include moral or social wrong..-- Somebody fails to save a starving man

• – Municipal Corporation Delhi v Subhagwanti [AIR 1966 SC 1750]

04/22/23 7

04/22/23 8

COMPENSATIONCOMPENSATIONNO COMPENSATIONNO COMPENSATION

Legal damage-

• MAXIM- Injuria sine damnum

• MEANS- • an infringement of a legal right without any

actual loss or damage. • In which case, the person whose right has

been infringed has a good cause of action. And hence will be entitled to compensation

04/22/23 9

ASHBY V WHITE (1703) 2 ER 938

• Mr Ashby was prevented from voting at an election by the misfeasance of a constable, Mr White, on the apparent pretext that he was not a settled inhabitant..

• Held- If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it, and, indeed it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal...

• Violation of a right (right to vote ) of the plaintiff04/22/23 10

BHIM SINGH V STATE OF J&K AIR 1986 SC 494

BHIM SINGH V STATE OF J&K AIR 1986 SC 494

FACTS- a member of the Legislative Assembly of the State of

Jammu and Kashmir was arrested by the police. The unfortunate Mr Bhim Singh, who was so arrested, was not produced before the Magistrate for a period of four days and further was kept hidden in an undisclosed location.

Before the Supreme Court of India – said that the State machinery violated human rights.

It is clear that the unfortunate incidents visited upon Mr Bhim Singh were a result of a particular session of the Legislative Assembly where his vote may have been crucial. Since Mr Bhim Singh had later been freed, the courts were left with a dilemma as to the remedy to be provided to him.

04/22/23 11

04/22/23 12

Marzetti v Williams Bank [(1830) 1 B & Ad 415]

• It has been held that an action will lie against a banker, having sufficient funds in his hands belonging to the customer, for refusing to honour his cheque, although the customer has not thereby sustained any actual loss or damage.

04/22/23 13

Damnum sine injuriaDamnum sine injuriaIn some cases the act or omission of the

defendant may have caused damage to the claimant but the claimant may have no action as the interest affected may not be one protected by law. Lawyers refer to this as damnum sine injuria or harm without legal wrong.

It means that the plaintiff may suffer actual or substantial loss without any violation or infringement of legal right and therefore no action lies in such cases.

04/22/23 14

04/22/23 15

EXAMPLES Damage suffered from justifiable acts

• Loss inflicted on individual traders by competition in trade

• Where the damage is done by a man acting under necessity to prevent a greater evil

04/22/23 16

Gloucester Grammar School Case (1410) Y.B. 11• The defendant, a school master, set up a rival school to

that of the plaintiff. The boy’s from the plaintiff’s school flocked to the defendant’s. Because of the competition the plaintiff has to reduce their fees. Held that the plaintiffs had no remedy for the loss thus suffered by them.

• Mogul Steamship Co Ltd v McGregor, Gow & Co [1892] AC 25

• A group of ship owners formed an association to raise their profits. The association agreed to limit the number of ships sent by the association to different ports, to give a 5% rebate on freights to all shippers of stock who dealt only with members, and that agents of members would be prohibited from dealing with anyone in the association if they did not deal exclusively with people in the association.

HELD • If any member wished to withdraw, they would have to

give notice. • Mogul Steamship Co Ltd had been excluded. When it sent

ships to the loading port to pick up cargo, the association sent more ships and underbid Mogul Steamship Co Ltd. The association also threatened to dismiss agents or withdraw rebates from anyone who dealt with Mogul Steamship Co Ltd. Mogul Steamship Co Ltd alleged there was a conspiracy to injure its economic interests and sued for compensation.

• The House of Lords, affirming the Court of Appeal's decision, held that the acts were done with a lawful object of protecting and increasing the associations profits. Because no unlawful means had been employed, Mogul Steamship Co Ltd had no cause of action.

04/22/23 17

P. Seetharamaya v Mahalakshmi AIR 1958 AP 103

P. Seetharamaya v Mahalakshmi AIR 1958 AP 103

• The owner of land on or near the river has a right to build a fence upon his ground to prevent damage to his ground by the overflow of river even though as a result of which the over-flowing water is diverted to the neighbors' land and causes damage (it is to be noted that if the flood water already entered one’s land, the law does not permit him to transfer it upon another's land)

04/22/23 18

Dickson v Reuter’s Telegram Co. (1877) 3 CPD

Dickson v Reuter’s Telegram Co. (1877) 3 CPD

• FACTS-• A sent a telegram to B for the shipment of certain goods.

The telegram co. by a mistake delivered the telegram to C. C acting on the telegram sent the goods to A who refused to accept the goods stating that he had ordered the goods not from C but from B.

• Held –• C had no cause of action against the telegram company for

the company did not owe any duty of care to C and no legal right of C could, Therefore, said to have been infringed. Defendant company owed a contractual duty only to the sender of the telegram. Since they did not owe any duty to the recipient of the telegram, they were not liable.

04/22/23 19

USHABEN V. BHAGYALAXMI CHITRA MANDIRAIR 1978 Guj 13

USHABEN V. BHAGYALAXMI CHITRA MANDIRAIR 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 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 her particular religion. Since there was no violation of a legal right, request of injunction was rejected.

04/22/23 20

Acton v. Blundell (1848) 12 M&W 324

Acton v. Blundell (1848) 12 M&W 324

• The defendants by digging a coal pit 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.

04/22/23 21

Mental element in tortMental element in tort

04/22/23 22

04/22/23 23

04/22/23 24

Allen v Flood [1898] AC 1Allen v Flood [1898] AC 1• FACTS:• A trade union official told an employer his

members would not work alongside the claimants. The employer was pressured to get rid of the claimants. For the loss of work, the claimants sued the trade union official. An important fact is that all the workers in the case were only hired day by day. Therefore, the trade union official had never threatened a breach of contract because the contracts began afresh with a new day's work.

04/22/23 25

04/22/23 26

• HELD:• The House of Lords held that even though there

was a malice , this could not render the conduct unlawful, because the effect actually complained of (not rehiring) was in itself entirely lawful.

• Lord Davey pointed out an ‘employer may refuse to employ [an individual] for the most mistaken, capricious, malicious or morally reprehensible motives that can be conceived, but the workman has no right of action against him.’

Town Area Committee v Prabhu Dayal AIR 1975 SC

Town Area Committee v Prabhu Dayal AIR 1975 SC

• Plaintiff’s case was that he had made construction of 16 shops on the old foundations of the building known as Garhi and the defendant Town Area Committee acting through its Chairman and Vice-Chairman, who are defendants 2 and 3 demolished these constructions. By this demolition plaintiff suffered a loss of Rs. 1,000.

• According to him the notice under Section 186 of the U.P. Municipal Act was bad as it gave to the plaintiff only two hours’ time to demolish the constructions and not a reasonable time as contemplated in Section 302 of the Act. It was also asserted that demolition, after this notice was bad as the notice was served at a time when the plaintiff was out of station. The action was said to be mala fide.

04/22/23 27

HELD

• IF A person constructs a building illegally, the demolition of such building by the municipal authorities (though motivated by malice) would not amount to causing “injuria” to the owner of the property.

04/22/23 28

THE MAYOR OF BRADFORD CORPORATION V. PICKLES [1895] AC 587 (HL),

THE MAYOR OF BRADFORD CORPORATION V. PICKLES [1895] AC 587 (HL),

• “a lawful act does not become unlawful merely because of an evil motive”.

• The defendant extracted percolating water in undefined channels with the result that the water supply to the plaintiffs’ reservoir was reduced. The defendant’s motive in doing this was to force the plaintiffs to buy his land at his price. The action failed, as the defendant had a right to extract the water. As he had such a right, his motive, even if malicious, was irrelevant.

• If it was a lawful act, however ill the motive might be, he had a right to do it. If it was an unlawful act, however good his motive might be, he would have no right to do it

04/22/23 29

Hollywood Silver Fox Farm Ltd. v. Emmett, [1936] 2 KB 408 (CA)

Hollywood Silver Fox Farm Ltd. v. Emmett, [1936] 2 KB 408 (CA)

• FACTS-• Where the plaintiff company carried on the business of

breeding silver foxes on its land. • During the breeding season, the vixens are very nervous

and liable, if disturbed, to refuse to breed, to miscarry, or to kill their young.

• The defendant was an adjoining landowner who, as a result of a dispute with the plaintiff, made his son discharge guns on his own land as near as possible to the breeding pens for the sole purpose of injuring the plaintiff’s business by Interfering with the foxes’ breeding.

• The plaintiffs sought an injunction to restrain the defendant’s acts.

04/22/23 30

DEFENDANT CONTENTIONS

• the plaintiff’s business required an extraordinary degree of quiet and that therefore they could not prevent the defendant from using his land in a way that would not be a nuisance apart from the special use to which the plaintiff put its land, and

• the defendant had a right as proprietor to shoot on his own land and that his intentions were irrelevant in that they could not make a lawful act unlawful.

04/22/23 31

HELD• The court granted the injunction and held that in an

action for nuisance by noise, the motive of the noise-maker must be Considered in determining whether or not he was using his property in a legitimate and reasonable manner. The court further observed that:

• “No proprietor has an absolute right to create noises upon his own land, because any right which the law gives him is qualified by the condition that it must not be exercised to the nuisance of his neighbours or of the public. If he violates that condition he commits a legal wrong, and if he does so intentionally he is guilty of a malicious wrong in its strict legal sense.”

04/22/23 32

04/22/23 33

04/22/23 34

• Malicious prosecution

04/22/23 35

In nuisance. • Christie v Davey [1893] • Plaintiff and defendant lived in adjoining houses.

The plaintiff gave music lessons and this annoyed the defendant. In retaliation the defendant banged on the wall and shouted while the lessons were in progress. The plaintiff was held to be entitled to an injunction because of the defendant’s malicious behaviour.

04/22/23 36

• In cases of defamation, when qualified privilege or fair comment is pleaded as a defence, motive becomes relevant. The presence of malice or evil motive negatives good faith and the defendant cannot avoid his liability by the defence of qualified privilege in such a case.

• Malice or evil motive may result in aggravation of damages.

Balak Glass Emporium vs United India Insurance Co. Ltd. And Ors. on 27/7/1993

• Plaintiff-Firm was occupying the ground floor of a building and it was dealing in mirrors, plywood etc. Joseph ran a photo studio in the name and style "Durbar Photo Studio". When the Managing Partner of the plaintiff went to the shop on 21-11-1984, he found that the shop room was flooded with water, escaped from the defendants' studio room and the articles kept in the plaintiffs shop were damaged.

• He sent for the proprietor of the Studio and PW 4 and some others entered the studio, when it was opened by DW 1 -- the son of Joseph. It was found that water was flowing through the water tap and the outlet of the sump/tank was closed, and water tank was overflowing, and that caused the mischief.

04/22/23 37

04/22/23 38

• The plaintiff alleges that himself and Joseph were not in good terms, that Joseph wanted to spite him and on 20-11-1984 when the studio was closed in the night, the water tap was deliberately left open to cause mischief and the entire incident was the result of the intentional acts of Joseph.

• whether the damage incurred by the plaintiff is the result of the malicious act of late Sri Joseph?

HELD

• It is proved that the tap was fully opened and the drain was closed. When that is taken in the background of the evidence of PW1 and the plea in the plaint that there was enmity between the plaintiff and Joseph, the inference irresistible, is that it was an intentional act of Joseph, which resulted in the loss suffered by the plaintiff. So, it is a case where plaintiff suffered loss due to the malicious acts of Joseph and the claim falls within the purview of malicious damages.

04/22/23 39

Mal-feasence, Mis-feasence and Non-feasenceMal-feasence, Mis-feasence and Non-feasence

• Malfeasence- commission of an unlawful act which are actionable per se and do not require proof of intention or motive. Eg. Trespass.

• Misfeasence- improper doing of some lawful act for example where there is negligence

• Non-feasence- omission to do some act when there obligation to perform.

• The expressions misfeasance and nonfeasance, and occasionally malfeasance, are used in English Law with reference to the discharge of public obligations existing by common law, custom or statute.

04/22/23 40

04/22/23 41

• 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.

Capacity under law of torts

• Convict: D. B. Y. Patnaik v. A. P, AIR 1974 SC 2092“Convicts are not by mere reason of the conviction,

denuded of all the fundamental rights which they otherwise possess. A prisoner is deprived of fundamental rights like the right to move freely throughout the territory of India or the right to practice a profession. But other freedoms like the right to acquire, hold or dispose of property are available to the prisoner. He is also entitled to the right guaranteed by Art. 21 that he shall not be deprived of his life or the personal liberty except according to the procedure established by law”

04/22/23 42

SCHOOLS OF TORT LAW

SCHOOLS OF TORT LAW

LAW OF TORTS

LAW OF TORT

04/22/23 43

Two theories

• Winfield, Pollock• All injuries done by one

person to another are torts, unless there is some justification recognized by law.

• Eg. If I injure my neighbor, he can sue me in tort whether or not the wrong has a particular name assigned to it, like assault, battery

• Salmond• There is a definite number

of torts outside which liability in tort does not exist.

• Eg. I can injure my neighbor as much as I like without fear of him suing me in tort provided my conduct does not fall within the rubric of assault, deceit, slander, etc.

04/22/23 44

Two theories

• All unjustifiable harms are tortious.

• Enables courts to create new torts

• Resembles saying: my duty is to hurt no one by words or deeds.

• Eg. Absolute liability, negligence (19th century)

• This theory consist of a neat set of pigeon-holes, each containing a labeled tort. If the defendant’s wrong does not fit into any of these pigeon-holes, he has committed no tort.

• Just as criminal law consists of a body of rules establishing specific offences..

04/22/23 45

• Victoria Park Racing and Recreation Grounds Co. Ltd v. taylor, 1937

• Dr Winfield: it does not follow that all harms are tortious or that any1 who has been harmed by his neigbour can go to the court with the confident expectation of being accorded a remedy..he will recover nothing if he alleges a specific tort and fails to prove the essential ingredients.

• Damnum sine injuria: parties were not able to get damages although they suffered substantial losses.

04/22/23 46

• Many instances in which plaintiff put forward a new claim such as mental pain followed by nervous shock and was awarded damages. ( no label required).

04/22/23 47

04/22/23 48

04/22/23 49

Whether it is a law of tort or law of torts?

• Criticism of salmond-pigeon holes…the law of torts is steadily expanding and the idea of its being cribbed, cabined and confined in a set of pigeon-holes is untenable

• Both the theories are correct from their own perspective – this view was later on adopted by Winfield.

• Criticism of salmond-pigeon holes…the law of torts is steadily expanding and the idea of its being cribbed, cabined and confined in a set of pigeon-holes is untenable

• Both the theories are correct from their own perspective – this view was later on adopted by Winfield.

04/22/23 50

Discharge of torts / Extinction of liability of torts

• Death• Waiver by election• Accord and satisfaction• Release• Acquiescence• Judgment• Limitation

04/22/23 51