PRESTIGE INSTITUTE OF MANAGEMENT &

RESEARCH, INDORE.

DEPARTMENT OF LAW

SUBJECT- LAW OF TORTS

TOPIC- DEFINE TORT AND IT’S LIABILITIES

GUIDED BY: SUBMITTED BY:

For the society to peacefully coexist, each member of the society has to fulfill some duties
towards the other people of the society. Duties to respect people’s private spaces, not to do things
that unfairly disturb others, be careful and diligent when we deal with fellow beings, etc. just as
we have such duties, others have the right to expect us to do these duties. Similarly, others also
have duties towards us, and we have the right to expect them o fulfill these duties. Thus all
people are interlinked to each other for these rights and duties towards each other, creating a
world of rights and duties. We have the right to things like private spaces, the right not to be
unfairly disturbed etc. we have the duty of respecting the above rights of others. The law of
torts deals with the violation of these rights by the people. These rights are not mentioned in the
written laws generally, but these have become the part of the legal system by common law and
by the acceptance of the masses.

For explaining this I would like to demonstrate an example, a man was walking in a garden on a
bright sunny day and started swinging the umbrella while walking in the park. Unfortunately, the
umbrella ended up smashing the other pedestrian on his nose. The person injured was very upset
with this act. So when the injured man took up this issue with the first man, first man replied that
he has the right to walk in a public place in the manner which suits him. The second man replied
to the first man saying that the first man’s rights end where the rights of the second man begin.

Few examples of the torts or civil wrongs are: nuisance, negligence, trespass, defamation, etc.

MEANING OF TORT

“Torts are civil wrongs for which the injured party may seek legal redressal for.” The injured
party in case of torts is entitled to claim ‘unliquidated damages’, the judgment of which is given
by the judge of a court based on the facts, circumstances and the amount of injury suffered which
is actually suffered by the injured party. Tort law is largely based on common sense and the
understanding prevalent between people in their everyday interactions with each other. The
purpose of tort law is to ensure that people reasonably coexist with each other. In case of a tort
case there are two parties involved in it i.e. plaintiff and defendant. Plaintiff is the person whose
rights have been violated, the one who has been injured. He is the one who is the complainant,
who comes to the court seeking remedy. On the other hand defendant is a person who has
violated the rights of the other person and has injured the other person.

DEFINITION OF TORT

Faeser defines tort as “Tort is an infringement of a right in rem of a private individual giving of
compensation at the suit of the injured party”.

Peter Bricks contribution in defining torts is “The breach of a legal duty which affects the
interests of an individual to a degree which the law regards as sufficient to allow that individual
to complain on his or her own account rather than as a representative of society as a whole”.

Burdick helps in defining the term as “an act or omission which unlawfully violates a person’s
right created by law and for which the appropriate remedy is a common law action for damages
by the injured person”

Difference Between A Tort And Quasi-Contract

In case of tort duty is owed to all members of the public (though only one may be affected)
whereas in a quasi-contract, a duty is implied as being owed to a specific person i.e., the rightful
recipient. In tort the duty is present at all the times, whereas in case of a quasi-contract is formed
because of a particular situation i.e., the wrongful recipient of the benefit etc. also in case of tort
the damages are unliquidated, but in case of a quasi-contract the damages may be liquidated
damages. Conditions which are necessary for a tort are:

1. There must be an act or an omission on the part of the defendant or the alleged
wrongdoer. In order to be liable for a tort, a person must have done some act which he
was not supposed to do.
 2. The act or omission should result in a legal damage, which means that the act or omission
must result in the violation of a legal right of the plaintiff or the complainant. The legal
damage is called injuria which means ‘legal injury’. One can be injured but he has to be
legally injured.

Also there is no general rule in tort law that one must have intended to the wrongful act in order
to be held liable. In some torts, such as assault, deceit and conspiracy, the mental condition is
relevant, while in most of the other torts the mental condition of the wrongdoer is irrelevant. The
reason for this is that tort law requires not just that people not attempt to hurt others, but also that
people do their best not to allow their actions to accidently hurt others. So basically tort law
primarily wants to catch careless people in order to avoid future misfortunes.

There are two terms which are used to determine whether a party has a valid claim in tort law,
i.e. whether the other person could be held liable in a court of law or not. They are:

Injuria sine damno: this means the violation of the legal right without the cause of actual
damage. This is a valid claim in a court of law. For example, if someone trespasses upon the
property, he can be held responsible, even if the trespass did not cause any actual damage to the
person. The person has a right to non-violation of the bounds of his property and it is this right
which has given rise to a tort claim.

Damnum sine injuria: this means causing of death without the violation of legal right. Such a
case will not be valid in the court of law. For example, the fact that a man is injured by another
man’s act is not sufficient cause; this might be even if the injury-causing act is intentional or
deliberate. A violation of legal right is necessary in order for a valid cause of legal action to
exist. Now I would like to clear the meaning of three words, these are:

Damage: actual harm suffered by the plaintiff

Injury: the violation of a legally-recognized and protected right

Damages: it means the compensation payable to the plaintiff for the harm caused
 General Defenses To Tort Claims

If someone sues one person claiming that the other person has violated the rights of his and has
committed a tort, then certain defenses could be taken. The extent to which they apply against
different torts, may, however, differ. Some of the defenses which can be used in torts are:

1. Volenti Non Fit Injuria: this means ‘voluntary taking of a risk’. It’s when a person
chooses to be in the situation that causes the injury. For example, suppose you are a
spectator at a cricket match , the batsman hits a six, and the ball lands on your head, then
you cannot claim for compensation either from the stadium authorities or the batsman
because when you took a seat in the stadium, you accepted the risks while sitting in the
stadium. Therefore if the defendant can prove that the plaintiff voluntarily put himself in
that situation, he can escape liability. The most important thing to remember is that the
action must be voluntary i.e. with the informed consent of the relevant person. There
must not be any cheating or use of any type of force and so the person must put himself
in the situation by his own choice. There are two things which should be established in
order to use this defense. (a) That the plaintiff knew or could have expected the risks
involved in such a situation. (b) That the person agreed by a statement or conduct, to
suffer the consequence of the risk without force or compulsion or threat.

By this I want to say that it is not enough to defend by saying that the plaintiff knew the risk; it is
also necessary to show that the plaintiff voluntarily agreed to suffer the harm which might be
possible in the risky situation. But in case of a master servant relation there might be some
sought of pressure on the servant. I would like to give an example, a master orders his servant to
go and work in a mine, if one shaft is not in a proper condition, this cannot be assumed that the
servant and so in case if there is an accident than the master cannot claim that the servant knew
and went voluntarily as there is pressure from the master.

1. Plaintiff is the wrongdoer: the most important thing in this case would be that the
plaintiff did something wrong which caused him the injury. Since he plaintiff did
something wrong so he cannot claim damages from someone else for the injury caused to
him. For example, if a person walks into someone’s house and if it is written on the gate
 that ‘beware of dog’, the dog bites him then the plaintiff entered the house after knowing
the risk, as a result he cannot ask for compensation, also he was the wrongdoer.
2. Inevitable accident: When an injury is caused to a person by an event that could not be
foreseen and avoided despite reasonable care on the part of the defendant, the defense of
inevitable accident can be used. For instance, by ‘inevitable’ it is not meant that the
accident was bound to happen, but rather, that the accident could not have been avoided
despite reasonable care. After all, how can a person be blamed for something that he had
no control whatsoever over or could not prevent? For example, a situation where the
defense could not be used is that of a person who, while trying to separate two people
fighting, hits another person accidentally. Here the injury is negligence and no negligence
is involved.
3. Act of God: This defense is similar to the defense of inevitable accident according to me.
The only difference is that in the defense of Act of God the accident happens to occur
because of unforeseen natural event. The requirements which are to be satisfied are (a)
the injury most be caused by the effect of natural forces, (b) the natural forces must be
unforeseen, or the effects must be unavoidable. So even if a natural event like a storm is
taking place, if one can take precautions and avoid the damage, the defense cannot be
used.
4. Private defense: If one injures someone, or something that belongs to someone else,
while defending self or own property, then one can be excused if the force used to protect
self was reasonable. For instance, if someone punches you on stomach and you shoot him
that would be an excessive use of force which is not necessary for defending yourself.
The following must be satisfied in order t claim this defense: (a) the defendant must be
under threat or under attack, (b) the defense must be for self-defense and not for revenge,
(c) the response must be proportional to the attack or threat. The principle for this is that
the law will not hold you responsible for an action that you performed in order to save or
protect yourself. If, however, it was not necessary to use force for protection, the law will
not protect, and you can’t use this defense.
5. Mistake: Mistake is not usually a defense in tort law. It’s not good enough to say that
you didn’t know you were doing something wrong. This defense can be used in case of
 malicious prosecution. In malicious prosecution it must be shown that the prosecution
was acting with malice.
6. Necessity: In necessity, you have to show that the act you did was necessary in the
circumstances. For instance, if one enters someone’s private land in order to collect water
from his well to put out a fire in his house, that the person was prompted by necessity and
the defense could be used in tort claim and it could be used against trespass of property.
The level of necessity should be very high. Basically the wrong done should be smaller
while comparing it to the importance of right done.
7. Act under Statutory Authority: If the act done was under the authority of some statute
that is a valid defense. For example, if there is a railway line near your house and the
noises of the train passing disturbs then you have no remedy because the construction and
the use of the railway is authorized under a statute. However, this does not give the
authorities the license to do what they want unnecessarily; they must act in a reasonable
manner. I have an example for this from my own life, there was a telephone exchange in
my locality and the generators which were used were of very high frequency which was
permitted in a residential area, the court asked the exchange to be removed from that
place.

TYPES OF TORTS

A. Nuisance

“In tort law, causing ‘nuisance’ means ‘unreasonably interfering’ with a person’s right over, and
in connection, with his property or his land.” Nuisance may be caused in various ways, such as
the causing of unnecessary noise, heat, smoke, smell and other such disturbing activities. For
example, your neighbor unnecessary is in the habit of setting on fire the morning piles of the
dead leaves. He burns these in his garden, but the smoke from this fire blows into your house,
and this is a type of general disturbance for you. Such behavior would constitute nuisance and
since you are denied the right to live in your property and enjoy their safely, so you could
complain about this nuisance, even a tenant could complain in a fixed time frame. There are two
types of nuisances, public nuisance and private nuisance.
 1. Public Nuisance: This type of nuisance occurs when the right of the general public is
interfered with. For instance, if a person deliberately blocks a road with his vehicle, then
he interferes with the right of the public in general, and that would be a public nuisance.
This is because the road is a public property, and by blocking it, the person interferes
with the public exercise or enjoyment of that property.

Public nuisance is a sort of crime and it is not merely a civil wrong committed against the rights
of a person, and commission of a public nuisance results in punishment by the state, which may
impose a fine or even put behind bars i.e. punishment. The damages cannot be sought through a
civil suit.

1. Private Nuisance: This is the kind of nuisance that is ground for a tort action for nuisance
by a private party. The damages could be sought through a civil suit. There are certain
requirements which need to be met for this, these include unreasonable interference by
the defendant, also the interference must be with the use or enjoyment of the plaintiff’s
property, the plaintiff should have suffered some damage as a result.

B. Negligence

It is one of the most important in case of torts. This is because it is frequently committed and also
there is some type of negligence in most of the tort cases according to me. Tort is negligently
committed, i.e. negligently causing nuisance, negligently trespassing on someone’s land, etc. in
order to establish the tort of negligence, it must be proved that:

1. The defendant owed a duty of care to the plaintiff

Duty of care: for showing an act of negligence, the plaintiff must show that the defendant owed
the plaintiff a legal duty of care. A legal duty is different from moral, social or religious duty. In
case of Donoghue vs. Stevenson, the plaintiff filled an action for negligence against the
manufacturer claiming that she had been seriously injured by the contents of the drink. The
defendant claimed in his defense that he had no duty as she did not buy the bottle. But the court
held that the manufacture owed a duty of care to the plaintiff and to all its consumers. The court
also held that the manufacturer had breached the duty and caused damage, and was therefore
negligent. I would like to also state that the duty is only there where the injury is foreseeable.

Breach of duty: After having established that the defendant owes the plaintiff a duty of care it
must then be proven that the duty was breached. For seeing whether due care was taken, one
must what was the standard of care required in that situation. If the care taken is less than
standard care than there is a breach of duty.

Damage as a result of Breach of Duty: in order to succeed in a legal action based on negligence,
it is necessary to show that the plaintiff suffered some damage. The plaintiff has to show the
incident happened and it caused injury to him. Also the defendant was in control of or
responsible for whatever caused the incident.

C. The Tort Of Trespass

Trespass means illegally entering in someone else’s property. There are two kinds of trespass,
Trespass to a person and Trespass to land.

Trespass to person: This category of torts deals with the threat of, or actual use of unlawful force
against a person. There are three types of torts in this category: Battery, Assault, False
Imprisonment.

1. Battery: It basically deals with actual use of unlawful force against a person. In order or
a person to prove a tort of battery, one needs to show the following things: one needs to
show that there was a use of force. The force need not have to be great. For example
throwing water or spitting on a person is a battery. Also it must be proven that the use of
force was without any legal justification and the use of force was intentional. By this I
mean that an accident will not constitute battery as long as there was no negligence
involved.
2. Assault: the tort of assault occurs when the defendant does something that causes a
reasonable fear of battery in the mind of the plaintiff. By this I mean that assault occurs
when something scares the plaintiff that he is going to be subjected to use of force. Also
 the defendant should have the ability to harm the plaintiff. . for example if a person in a
hospital having fractures in his body and is plastered and he says you ‘I will bash you’, it
is not an assault. Also assault comes before battery takes place.
3. False Imprisonment: This is tort that constitutes trespass against a person. This takes
place when a person is deprived his liberty or he totally restrained from it. False
imprisonment occurs when a person is locked in a lock up i.e. n a jail or even in a room.
The restraint must be imposed without any lawful justification, then only he can be said
to be falsely imprisoned.

D. Trespass To Land

There are different signboards which could be seen at different places stating “NO
TRESSPASSING”. In law of torts, trespass to land means to interfere with someone’s possession
of land without any lawful justification. Trespass can be committed by the trespasser himself
entering the land, or by the trespasser doing it by using some object. An example of this would
be a person throwing stones in the property of another person while remaining physically out of
the property. Trespass can be committed intentionally, negligently or even accidently. Tort of
trespass does not require any actual damage.

LIABILITY

1) Strict Liability

The rule was laid down in the famous Ryland vs. Fletcher (1868) case. In this case, the defendant
constructed a reservoir on his land to provide water to his mill. The defendant did not know that
there were some disused mineshafts just next to his reservoir. The water burst through the
reservoir into the disused mineshafts, and flooded coal mines in the adjoining land. The
defendant did not know of the shafts, and there was no negligence on his part though there was
negligence on the part of the contractors he had hired to build the reservoir. Yet the court held
him liable. The court said the principal governing such a situation is one of “strict liability”,
because if a person brings a potentially dangerous thing on his land and if such a thing escapes
and does damage, then such person should be held responsible, even if he were not negligent.
Here the reservoir was said to be the potentially dangerous thing. The criterion for strict liability
is that, a dangerous thing must have been brought by the person on his land; such a thing must
have escaped the land. Also the thing must have been intended to be used for some non-natural
purpose.

The defenses for escaping strict liability are: if the plaintiff himself did something which resulted
in damage to him by the defendant’s property, then that is a defense. If there is an act of god than
it is also defense. Also in case if there is an act of third party i.e. some stranger, than that is a
defense. Also in case a government keeps dangerous thing under a statute, then there is no
question of strict liability.

2) Absolute Liability

This is similar to strict liability, except for the fact that there is no defense to it. In effect, there
are no excuses for the harm caused. The rule of absolute liability evolved in the famous Indian
case M.C. Mehta vs. Union of India (1987). In this case the court said that there are no defenses
as were there in the case of Ryland vs. Fletcher. The court came out with a logic that a person a
person who carries on a dangerous activity for profit is responsible for any harm that may flow
from such activity. The rule of absolute liability was followed in Bhopal Gas Leak case and is
also used in environmental pollution cases.

Conclusion

After reading articles on the law of torts and discussing this topic with my friends I feel that the
law of torts is not much developed in India. But the tort law has provided physical security to the
people. “Tort law evolved through the common law. Historically, basic common law principles
were applied to solve legal problems. In the nineteenth century, there was a movement towards
systematizing tort law.”