1.

1 MEANING AND DEFINITION

The word ‘tort’ has been derived from the Latin term ‘tortum’, which means to twist. It,
) therefore, includes that conduct which is not straight or lawfu), but, on the other hand,
twisted, crooked or unlawful. It is equivalent to the English term wrong’. This branch of
law consists of various torts’ or wrGngful acts whereby the wrongdoer violates some
legal right vested in another person. The law imposes a duty to respect the legal rights
vested in the members of the society and the person making a breach of that duty is said
to have done the wrongful act. As ‘crime’ is a wrongful act which results from the breach
of a duty recognized by criminal law, a ‘breach of contract’ is the non-performance of a
duty undertaken by a party to a contract, similarly ‘tort’ is a breach of duty recognized
under the law of torts.

Although defining any term is a tough task yet there are certain advantages which flow
from any attempt to define any term. Some of the definitions of the term ‘tort' are as
follows:

“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 contract or the breach of a
trust or other merely equitable obligation.” — SalmonJ

“It is an infringement of a right in rem of a private individual giving a right of

compensation at the suit of the injured party.” — Fraser

“Tort means a civil wrong which is not exclusively a breach of contract or breach
of trust.” — Section 2(m) of lhe Limitation Act, 1963

“Tortious liability arises from the breach of a duty primarily fixed by law; this
duty is towards persons generally and its breach is redressible by an action for
unliquidated dam2ges.” — Winfield

[I]n framing this definition Winfield was not seeking to indicate what conduct is and
what is not sufficient to involve a person in tortious liability, but merely to distinguish
tort from certain other branches of law. As we shall see, it cannot be accepted as entirely
accurate but it has the merit of comparative brevity and contains elements which deserve
continuing emphasis. It must also be emphasized that the numoer of cases in which ii will
be essential to classify the r' ntifPs clairii as ten., contract, trust, etc., wiil be
comparatively small. A cause of action in modern law is riiere.y a factual situaiion the
existence of which enables the plaintiff to obtain a remedy from the court and he is not
required to head his statement of claim with a description of the branch of the law on
which he relies, still less with a description of a particular category (for example,
negligence, trespass, sale) within the branch. But statutes and rules of procedure
sometimes distinguish between, say, contract and tort with reference to matters such as
limitation of actions, contributory negligcnce, jurisdiction and costs and the couri cannot
then avoid the task of classification.

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 No definition of the term can claim to be accurate or exhaustive. In fact, perfection in the
field of defining a term, beyond a certain limit, is a exercise in futility due is various
factors, e.g., limitation of words, change in social conditions, development of legal
regime, etc. However. ‘tort' can be conceptualized to include following eleme.nts:

l) Tort is civil wrong

2) This civil wrong is other than a mere breach of contract or breach of trust
3) This wrong is redressible by an action for unliquidated damages

Tort is a civil wrong

Tort belongs to the category of civil wrongs. The basic nature of civil wrong is different
from a criminal wrong. In the case of a civil wrong the injured party, i.e., the plaintiff
institutes civil proceedings against the wrongdoer, i.e., the defendant. In such a case the
main remedy is damages. The plaintiff is compensated by the defendant for the injury
caused to him by the defendant. In the case of a criminal wrong, on the other hand, the
criminal proceedings against the accused are brought by the State. Moreover, in the case
of a criminal wrong the individual, who is the victim of the crime, i.e., the sufferer is not
ordinarily compensated. Justice is administered by punishing the wrongdoer in such a
case. It is, however, possible that the same act done by a person may result in two
wrongs, a crime as well as a tort, at the same time. In such case both the civil and the
criminal remedies would concurrently b• available. There would be a civil action
requiring the defendant to pay compensation as well as a criminal action awarding
punishment to the wrongdoer.

Tort is other than a mere breach of contract or breach of trust

Tort is that civil wrong which is not exclusively any other kind of civil wrong. If we find
that a wrong is a mere breach of contract or breach of trust then obviously it would not be
considered to be a tort. Thus, if a person agrees to purchase a radio set and thereafter does
not fulfil his obligation the wrong wilt be mere breach of contract. It is only by the
process of elimination that we may be able to know whether the wrong is civil or
criminal. If it is a civil wrong, it has to be further seen if it exclusively belongs to another
recognized category of civil wrongs, like breach of contract ore breach of trust. If it is
found that it is neither breach of contract nor any other civil wrong, then we can say that
ihe wrong is a ‘tort’.

It may be noted that there is a poss:›bility trial the same act rr.sy arrogant '.c• two or more
civil wrongs and one of which may be a ton. in such a situation tñ .e piaintiff has to
choose one of the available reme‹iies, as both the wrongs are ci•zil wrongs and damages is
the main remedy for any kind of civil wrong.

Tort is redressible by an action for unliquidated damages

Damages is the most important remedy for a tort. After the wrong has been committed,
generally it is the money compensation which may satisfy the injured party. After the
commission of the wrong it is generally not possible to undo the harm which has already
been caused. If, for example, the reputation of a person has been injured the original
position cannot be restored back. The only thing which can be done in such a case is to

2
 see what is the money equivalent to the harm by way of defaination and the sum so
arrived at is asked to be paid by the defendant to the plaintiff. There are other remedies
also which could be available when the Tort is committed. It is also just possible that
sometimes the other remedies may be more effective than the remedy by way of
damages. For example, when a continuing wrong like nuisance is being committed, the
plaintiff may be more inteiested in the remedy by the way of injunction’ to stop the
có ntinuance of nuisance rather claiming compensation from time to time, if the nuisance
is allowed to be continued. The idea of mentioning the remedy by way of damages in the
definition is just to explain the nature of the wrong. Apart from that, the fact that damages
is the most important remedy for tort, and generally it is the only remedy after th• tort is
committed, indicates that the wrong is a civii wrong rather than a criminaì wrong.

Damages in the case of a tort are unliquidated. It is this fact which enables us to
distinguish tort from oth•r civil wrongs, like breach of contract or breach of trust, where
the damages may be liquidated. Liquidated damag•s means such compensation which has
been previously determin•d or agreed to by the parties. When the compensation has not
been so determined but the determination of the same is left to the discretion of the court,
the damages are said to be unliquidated. It is possible in the case of a contract that the
contracting parties, at the time of making of the contract, may make a stipulation as
regards the amount of compensation payable by either of the parties in the event of a
breach of the contract. If it is genuine pre-estimate of the compensation for the breach of‘
the contract it will be known as liquidated damages. There is no possibility of any such
predetermination of damages by the parties in the case of a tort. Generally the parties are
not known to each other until the tort is committed and moreover, it is difficult to
visualize beforehand the quantum of loss in the case of a tort, anci therefore the daiiiagcs
to be paid are left to be determined at the discretion of the court. Such damages,
J therefoi e, are unliquidated.

LAW OF TORTS vis-à-vis LAW OF CRIME AND CONTRA CT

One way of defining a term and understandirig its meaning is to differentiate it with other
terms. Therefore, it may be worthwhile is distinguish law of torts with otf:er branches of
law, for example, law of crime, law of contract, etc.

TORTS A.ED CRIME

There are .several connections. Historically tot iiad its rGots in criminal proccdui e. kven
today there is a punitive clement in some aspects of’ the iules on damage.s. Analytically
some other distinctions must be made.

A tort is a species of civil injury or wrong. The distinction between civil and criminal
wrongs depends on the nature of the apprupriale i einedy provided by law. A civil wrong
is one which gives rise to civil proceedings — proceedings, that is to say, which nave as
their purpose the enforcement of some right claimed by the plaintiff as against the
defendant. Criminal procccdings, un the other hand, arc those which havc for thcir objcct
the punish ment of the defendant for some act of which he is accused. It is settled that not

3
 every breach of a cñ minal statute gives rise to an action in tort. But it is often the case
that the same wrong is both civil and criminal - capable of being made the subject of
proceedings of both kinds. Assault, libel, theft and malicious injury to property, for
example, are wrongs of this kind. Speaking generally, in all sucii cases the civi! a.nd
criminal remedies are not alternative but concurrent, each being independent of the other.
The wrongdoer may be punished criminally by imprisonment or otherwise, and also
compelled in a civil action to make compensation or restitution to the injured person.

But the distinction between crime and tort became much less obvious when the criminal
courts [in UK] in 1972 were given power to order and offender to pay compensation to
his victim, a power which has since been widened. Indeed, ‘power’ is a slightly
misleading expression, for the court is now required to give reasons, on passing sentence,
if it does not make a compensation order. In this respect the distinction between crime
and tort has become more blurred .. . But there is one peculiarity which marks them off
from damages in tort. In every case they are obtainable only as a result of a process the
primary purpose of which, when it is initiated, is the imposition of punishment, or
something in the nature of punishment. In crime, the award of compensation is ancillary
to the criminal process: in tort it is normally its very objet.

Position under Indian law

Although payment of compensation to the injured party is a civil remedy to be provided

by the civil courts, in certain exceptional cases, as provided by Section 357 of the Code
of Criminal Procedure, 1973 (Cr PC), even a criminal court while passing judgment may
order that the injured party may be paid compensation out of the fine imposed. Such
amount of compensation may not be sufficient as compared to the loss suffered by the
injured party and if subsequently a civil suit is filed in respect of the same matter to claim
compensation, the civil court shall take into account any sum paid or recovered as
compensation under Section 357, Cr PC.

Imprisonment is a form of punishment awarded under criminal law. Under civil law also
arrest and detention may be made. There is, however, a basic difference between the
detention made in civil and criminal cases. Under criminal law the imprisonment is made
by the way of penalty for a wrongful act having been already done, whereas under civil
law the idea is to put pressi:re upon the defendant to perform certain duty, and the
defcndaiit is released when tb.e duty has beeri performea. for example, in civil cases a
judgment debtor may be arrested in execution of a decre• under Section 57, CPC. Such a
person is released even before the e.xpirati on of fixed term, if the decree is satisfied.

Sometimes the same set of facts may constitute both a tort and a crime. The civil and
criminal remedies in such a case are not alternative but they are concurrent. The
wrongdoer may be required to pay compensation under the law of torts, he may also be
held liable under criminal law. For instance, if A digs a ditch on a public road resulting in
inconvenience to the public at large. A has conunitted the offence of public nuisance as
defined in b“ection 2ti8, IPC. IN X, a passer-by, tails into that ditch and thereby gets
injured. A’s act also becoriies a tort of private nuisance as against X. A will be punished

4
 under criminal law for the offence of public nuisance, he will also be liable to
compensate X under the law of torts.

TORTS AND CONTRACT

The distinction between tort and contract is that the duties in the former are primarily
'1 fixed by the law, while in the latter they are fixed by the parties themselves. Further, in
tort the duty is towards persons generally; in contract it is towards a specific person or
persons. Moreover, damages for tort is always unliquidated but for breach of contract it
can be liquidated as well. It may still be of practical importance to determine whether an
action is in substance contractual or for a tort — e.g., when damages are sought for mental
distress, or when the defendant is a minor, or in relation to the running of time under
the
Limitation Act — in contract time runs from the breach of warranty, in tort from the
occurrence of the damage. There may also be a difference in relation to remoteness of
damage.

Certain grey aneas

It was Winfield’s view that tortious duties exist by virtue of the law itself and are not
dependent upon the agreement or consent of the persons subjected to them. I am under a
duty not to assault you, not to slander you, not to trespass on your land, because the law
) says I am under such a duty and not becaus• I have agreed with you to underiake such a
duty. Winfield, therefore, considered that tortious liability could for this reason be
distinguished from contractual liability and from liability on bailment, neither of which
can exist independently of the parties’ on at least of the defendant’s agreement or
consent. There are, however, several instances of what is undoubtedly tortious liability
for the existence of w'hich some prior consent on the part of the defendant is essential.
'Fhe liability of the occupier of premises to his visitor, for example, which is now
governed by the Occupiers Liability f.ct, 1957 [UK], is based upon breach of a duty of
care owed by the occupier to persons whom he has permitted to enter upon his premises.
The duty owed to trespassers, i.e., persons who enter without his consent, is not the same.
Again, the duty of care owed by a person who gives gratuitous advice upon a serious
occasion is doubtless, a tomious one, but its existence is depe.odent upon the adviser’s
agreement to give the advice, if not necessarily upon his agreement to accept legal
responsibility for it. Still more difficult is the fact that in some situations an undertaking
(whether or not by contract) by A to B to p•rform a service, the object of which is to
confer a benefit upon C, may give rise to liability in tort to C.

If it is not true that all tortious duties arise independently of*.he wi!i of the dependent, it is
equally not true that contractual duties are always dependent upon that will. Not only is
there the obvious point that the duty not to break one’s contracts is itself a duty imposed
by the law, but it is also the case that the contractual liability may exist even in the
“C abscnce of aiiy true consent between the parties.

A slightly better mode of differentiation between tortious and contractual liability, it is

suggested, is to be found in the proposition that in tort the content of the duties is fixed by
the law whereas the content of contractual duties is fixed by the contract itself. If I

11
 consent to your entry upon my premises then the duty which I owe to you is the duty
fixed by the Occupiers Liability Act, i.e., by the law itself, but whatever, for example, my
duty is to deliver to you 10 or 20 tons of coal can only be discovered from the contract
between us.

At the risk of abandoning the limits of formal definition, a more satisfactory basis for
distinguishing between contract and tort may be sought in considering the aims of the two
heads of liability. Tort, as we have seen, aims principally at the prevention or
compensation of harms whereas the ’core’ of contract is the idea of enforcing certain
promises. This difference of function has two principal consequences: first, that a mere
failure to act will not usually be actionable in tort, for that would be to set at naught the
rule that even a positive promise will not give rise to legal liability unless it is intended as
legally binding and supported by consideration or the formality of a deed; secondly, that
damages cannot be claimed in ’tort for a ‘loss of expectation', of, as it is sometimes
expressed, damages in contract put the plaintiff in the position he would have been in had
the contract been performed, whereas damages in tort put him in the position he •would
have been in had the tort not been committed.

Privity oJ’confract and tortious liability

At one time it seems to have been thought that if A undertook a contractual obligation
towards B, and his non-performance or mis-performance of that obligation resulted in
damage to C, then C could not sue A unless he could show that A had undertaken
towards him the same obligation as he had assumed towards B. Thus in Winterbottom v.
JFrighf Loril Abinger, CB, speaking of a contract of repair, said “Unless we confine the
operation of such contracts as this to the parties who entered into them, the most absurd
and outrageous consequences, to which I can see no limit, would ensue.” Enlightenment
came only when it was realized tb.at the duty (if any) which A owed to C in such
circumstances was not only referable to a legal origin distinct from that of the contractual
obligation assumed towards B but also might well be framed in different terms. The “pri-
zity of contract fallacy” (as it has been conveniently called) was at last exploded by the
House of Lords in Donoghue v. Stevenson, in which it was held that a manufacturer
of products was under a duty to the ultimate user or consumer even though there was no
contractual relationship between them. This duty had its origin in the law of tort and not
:•n the law of contract; ror did it amount to a warranty that care had been taken to see that
the artic!• was soi!nd — en ob!igaticx appropriate only to the contractual relationsiiip of
vendor and purchaser: the duty’ was no mere than to take reasonable care. to protect the
cGnsiimer.

It has also long been clear that a professional person such as an architect or banker might
owe a duty of care to someone other that the other party to the contract. Liability has been
imposed, whether the damaged caused to the plaintiff was physical, or financial. The duty
is imposed not because he or she made a contract, but because he or she has undertaken
the work. So the present position is that the “privity of contract fallacy” has disappeared.
The matter is open: thc absence of a conti’act between the par ties is but or ie of the facfurs
to be considered iii determining whether liability in tort exists. It is of course also

i.- „

12
 necessary to avoid the converse fallacy of assuming that C will automatically have a
good cause of artion against A merely because A's failure to perform his contract with B
has resulted in damage to C.

In the immediate aftermath of the decision of the House of Lords in Junior Books Lid v.
Veitchi to. Ltd., in which a sub-contractor was .hel‹i directly liable in tort to a building
owner with whom he had no direct contractual relationship but for whom he had provided
a floor which was defective but not dangerous, some thought the courts were about to
”y hold that every breach of contract was a tort. But it was quickly held that “if the principle
does not have certain limits, it will come p•ri1ous1y close to abrogating completely the
concept of privity of contract”, and the decision in the Junior Books was soon perceived
to be quite exceptional and not to be capable of general application.

Concurrent liability

The House of Lords, however, has now confirmed in Henderson v. Merret Syndicate
Ltd., that the mere presence of a contractual relationship does not in itself preclude the
existence of a duty of care in tort, even between the same parties. Accordingly, provided
that the contract does not expressly or impliedly preclude it, a plaintiff in such a situation
may enjoy concurrent remedies in contract and tort and be free to choose whichever is the
more advantageous.

Henderson x'. Merreti Syndicates Lf£f.

[1994] 3 All ER 506

The plaintiffs were Lloyd’s names (underwriting members) who had suffered disastrous
financial losses as a result of negligent management of the syndicates of which they were
members. The relationship between names, members’ agents and managing agents was
regulated by the terms of agency and sub-agency agreements which gave the agents
absolute direction in respect of underwriting business conducted on behalf of the names.
It was vital for the plaintiffs, for limitation purposes, to establish that the managing
agents owed the members a Juty of care. in tort in addition is any contractual duty which
may iiave arisen. Thc House of Lords upheld the lower court’s decision that the
defendants owed the plainti ff a duty of care in negligence.

Lord Gof1‘
I turn now to the tortious issues which arise in tne MerrJefi and Feltrlm appeals. The first
issue, in the order in which they are stated, is concerned with the question whether
managing agents, which were not also members’ agents,'Jowed to indirect names a duty of
care in tort to carry out their underwriting functions with reasonable care and skill. The
second issue is concerned with the question whether managing agents, which were also
members’ agents, owed such a duty to direct names.

In neither the specimen agreements nor the agreements prescribed by the 1985 byelaw is
there any express provision imposing on the agent a duty to exercise care and skill in the

13
 exercise of the relevant functions under the agreement; but I understand it not to be in
despite that a term to that effect must be implied into the agreements. It is against that
background that the question falls to be considered whether a like obligation rested upon
the managing agents in tort, so that the managing agen'z which were also members’
agents cwed such a duty of care in tort to direct names, with the effect that the direct
names had alternative remedies, min contract and tort, against the managing agents.

The main argument advanced by the managing agents against the existence of a duty of
care in tort was that the imposition of such a duty upon them was inconsistent with the
contractual relationship between the parties. In the case of direct names, where there was
a ’direct contract between the names and the managing agents, the argument was that the
contract legislated exclusively for the relationship betw•en the parties, and that a parallel
duty of care in tort was therefore excluded by the contract. In the case of indirect names,
reliance was placed on the fact .that there had been brought into existence a contractual
chain, between name and member’s agent, and between members’ agent and managing
agent; and it was said that, by structuring their contractual relationship in this way, the
indirect names and the managing agents had deliberately excluded any direct
responsibility, including any tortuous duty of care to the indirect names by the managing
agents. In particular, the argument ran, it was as a result not permissible for the names to
pi’ay in aid, for the limitation purposes, the more favourable time for accrual of a cause of
action in tort. To do so, submitted the managing agent5, would deprive them of their
contractual expectations, and would avoid the policy of Parliament that their contractual
expectation, and would avoid the policy of Parliament that there are different limitation
regimes for contract and tort.

However in any event, I think it desirable first to consider the principle upon which a
duty of care in tort may in the present context be imposed upon the managing agents,
assuming that to impose such a duty would not be inconsistent with the relevant
contractual relationship.

I turn immediately to the decision of this House in Hedley Byne & Co. Ltd. v. Heller &
Partners Ltd. [ 1963] 2 All ER 575. There, as is of course well known, the question arose
whether bankers could be held liable in tort in respect of the gratuitous provision of a
negligently favourable reference for one of their customers, when they knew or ougi:t to
has e known that the plaintiff wouid rely on their skill and judgment in furnishing the
reference, and tf:s plaintiff in fact relied upon it and in consequence suffered financial
loss. Yo›ar Lordships’ House held that in principle an action would lie in such
cii curr.stances in tort; but that, in the particular case, a duty of care was negatived by a
disclaimer of responsibility under cover of which the reference was supplied.

The governing principles are perhaps now perceived to be most clearly stated in the
speeches of Lord Morris of Both-y-Gest (with whom Lord Hodson agreed) and of Lord
Devlin. Lord Morris said:
'My lords, I consider that it follows and that it should now be regarded as settled
thnt if someone possessed or » special skill :1ndcJakcs, qiiitc irrcspcctiVc of
contract, to apply that skill for the assistance of another person who relies on such

14
 skill, a duty of care will arise. The fact that the service is to be given by means of,
or by the instrumentality of, words can make no difference. Furthermore if, in a
sphere in which a person is so placed that others could reasonably rely on his
judgment or his skill or on his ability to make careful inquiry, a person takes it on
himself to give information or advice to, or allows his information or advice to be
passed on to another person who, as tie knows or should know, will place reliance
J on it, then a duty of care will arise.’

From [this statement], and from their application in Hedley Byne, we can derive some
understanding of the breadth of the principle underlying the case. We can see that it rest
upon a relationship between the parties, which may be general or specific to the particular
transaction, and which may or may not be contractual in nature. All of their Lordships
spoke in terms of one party having assumed or undertaken a responsibility towards tire
other.

I think it is desirable to stress at this stage that the question of concurrent liability is by no
means only of academic significance. Practical issues, which can be of great importance
to the parties, are at stake. Foremost among these is perhaps the question of limitation of
actions. If concurrent liability in tort is not recognized, a claimant may find his claim
barred at a time when he is unaware of its existence. This must moreover be a real
possibility in the case of claims against professional men, such as solicitors or architects,
since the consequences of their negligence may well not come to light until long after the
lapse of six years from the date when the relevant breach of contract occurred.

Other practical problems arise, for example, from the absence of a right to contribution
between negligent contract-breakers: from the rules as to remoteness of damage, which
are less restricted in tort than they are in contract; and from the availability of the
opportunity to obtain leave to serve proceedings out of the jurisdiction.

At all events, even before Tei King we can see the beginning of the redirection of the
common law away from the contractual solution adopted in Groom v. Cracker [1938) 2
All ER 394, towards the recognition of concurrent remedies in contract and tort.

The requisite analysis is, however, to be found in the judgment of Oliver, I in Midland
Bank Trust Co. Ltd. v Jeff Stubbs d: Kemp [1978] 3 All ER 571, in which he held that a
solicitor could be liable to his client for negligence either in contract or in tort, with the
effect that in the case befor• him it w•> cpen to the client to :ake advantage of the m.ore
Favourable date of accrual of ilie cause or action *or the purposes of limitations. He said
“There is not and never has oeen any rule of law that a person having alternative
claims must frame his action in one or the other. If I have a contract with my
dentist to extract a tooth, I am not thereby precluded from suing him in tort if he
negligently shatters my jaw {Edwards v. Mallan [ 1908] l KB 1002).

The origin of concurrent remedies in this type of case may lie in history; but in a modern
context the point is a telling one. Indeed it is consistent with the dccisiun iii Donuffliue v.
Stavc i on itself, and the rejection in that cnsc of the view, powerfully expressed in the

15
 speech of Lord Buckmaster . .. that the manufacturer or repairer of an article owes no
duty of care apart from that contract or imposed by statute. That there might be co-
existent remedies for negligence in contract and in tort was expressly recognized by Lord
Macmillan in Donoghue v. Stevenson [ 1932] All ER 1 at 25 and by Lord Wright in Grant
v. Australian Nfliffifig /rfif/.v Lld. [ 1935] All ER 209 at 216-2 1 7.

My own belief is that, in the present context the common law is not antipathetic to
concurrent liability, and that there is no sound basis for a rule which automatically
restricts the claimant to either a tortious or a contractual remedy. The result may be
untidy; but, given that the tortious duty is imposed by the general law, and the contractual
duty is attributable to the will of the parties, I do not find it objectionable that the
claimant may be entitled to take advantage of the remedy which is most advantageous to
him, subject only to ascertaining whether the tortious duty is so inco.nsistent with the
applicable contract that, in accordance with ordinary principle, the parties must be taken
to have agreed that the tortious remedy is to be limited or excluded.

But, for the present purposes more important, in the present case liability can and in my
opinion should, be founded squarely on the principle estai›1ished in Hedley Byne itself,
from which it follows that an assumption of responsibility coupled with the concomitant
reliance may give rise to a tortious duty of care irrespective of whether there is a
coniractual relationship between the parties, and in consequence, unless his contract
precludes him from doing so, the plaintiff, who has available to him concurrent remedies
in contract and tort, may choose that remedy which appears to him to be the most
advantageous.

1.2.1 IS THERE ANY GENERAL PRINCIPLE OF LIABILITY?

The basic question is: Does the law of torts consist of a fundamental general principle
that it is wrongful to cause harm to other persons in the absence of sorrié specific ground
of justification or excuse, or does it consist of a number of specific -Rules prohibiting
certain kinds of harmful activity, and leaving all the residue outside the sphere of legal
responsibility? The first alternative is supported by a number of dicta going back for at
least a century, which assert that an unlawful, intentional and positive act, which
inca itably causes to the plaintiff is prima Macie actionable, at least if th.e damage is to '!:e
plainiifrs person or tangible property as distinct from economic interests.

SALM OND’S VIEW

Salmond argued that the second of these alternatives, which is supported by decisions and
dicta going back for six centuries, was that which had been accepted by out law. “Just as @
the criminal law consists of a body of rules establishing specific offences, so,” Salmond
said, “the law of torts consists of a body of rules establishing specific injuries. Neither in
the oxic case nor in the other is ther e aiiy geiici al pi iiiciplc uf l'ability. Whether I am
prosccutcd for an allcgcd offence, or sued for an alleged tort, it is for my advcrsary to

16
 prove that the case falls within some specific and established rule of liability, and not for
me to defe.nd myself by proving that it is within some specific and established rule of
jurisdiction or excuse.” For Salmond there was no English law of tort; there was merely
an English law of torts, that is, a list of acts and omissions which, in certain conditions,
were actionable. This book is entitled the law of ForfJ, not the Law of Tort. We still
approach the law of torts as if it were a law of crmes.

Iti ventioii of view torts

Although “most legal writers have come back to Sir John Salmond’s conclusion that
there is no law of tort, it must be admitted that there is not a single case, in the reports in
which an action has been refused ever since the memorable judgment of Sir John Holt,
CJ. in Ashby v. White that mere novelty is no bar to an acticn.. “I wish never to hear this
objection again,” said Sir Charles Pratt, CJ sixty years later. Similar statements may be
found in more modern cases. The novelty of a claim may indeed raise a presumption
against its validity So a court may remark: “It is enough to say that the world has gone
on very well without such actions as these; and I doubt whether it would continue to do
so if such things were allowed, or “ I would not exclude the possibility of such an action;
but none as yet has ever appeared in the books. And this will not be the first.” But there is
undoubtedly power to recognize a novel claim ifjustice so requires, although the process
may take time.

j We can trace back to panicular decisions the origin of many torts which are recognized
as such at the present day, of malicious prosecution, of deceit in Pasley v. Freeman, of
inducement of breach or contract in Lumley v. G ye, and of negligence in Donoghue v.
Stevenson. Again it was only in 1964 that the existence of the tort of intimidation was
definitely established, the House of Lords affirming that it had power to adapt the
common law to changing social circumstances. Again, although in 1888 a claim for
damages for a careless statement causing economic loss n'as dismissed as “an attempt to
manufacture a new action which the court would not sanction, yet in 1963 the House of
Lords rccognized such a tort. In 1979 the House of Lords recognized a great expansion in
the tort of passing off.

But there are limits, difficult to state, but understood by most practitioners, “to what we
can or should do. If we are to extend the law it must be by the development and
application of fundamental principles. We cannot introduce arbitrary conditions or
limitations: thai must be left to legislation.” No English court would, or perhaps could,
utter sucfi a statelier.t *s “Th• !aw is what the law shculd be.” The English view is that a
tort must have been comm.itted “w:thin the legal landscape.” To some extent the critics
seem to have misunderstood Salmond. He never committed himself to the proposition,
certainly untenable now, and probably always so, that the law of torts is a closed and
inexpansible system. “To say that the law can be collected into pigeon-holes does not
mean that those pigeon-holes may not be capacious, nor does it mean that they are
incapable of being added to.” Salmond merely contended that these changes were not
exclusively referable to any single principle. In this he was probably right. The factors
relevant to a decision to impose linbility are many and varied.

17 '’
 WINFIELD’S STAND

Despite occasional judicial canvassing of the idea, English law has not adopted what in
the Unite States is known as the “prima facie tort theory” whereby “the intentional
infliction of temporal damages is a cause of action, whicfi, as a matter of substantive law,
whatever may b•. the form of the pleading, requires a justification if the defendant is to
escape”. Nevertheless, it should be noted that we have for a good many years had
something ve¡y close to a generalized principle of liability in situations where the
defendant’s purpose is the infliction of physical harm on the plaintiff, and despite the
caution. which now characterizes the courts’ attitude to the duty of care in negligence it
will be an unusual case in which the defendant is not liable where his act has caused
foreseeable physical damage to the plaintiff or his property.

Winfield conceded the correctness of the “narrow” view as a practical, day to day matier,
but he contended that from a broader outlook th•re was validity in the theory of a
fundamental general principle of liability, for if we taxe the view, as we must, that the
law of tort has grown for centuries, and is still growing, then some such principle seems
to be at the back of it. It is the difference between treating a tree as inanimate for the
practical purposes of the moment (for example for the purpose of avoiding collision with
it, it is as lifeless as a block of marble) and realizing that it is animate because we know
that it has grown arid is still growing. The caution and slowness which usually mark the
creation of new rules by the judges tend to mask the fact that they have been created; for
they have often come into existence only by a series of analogical extensions spread over
a long period of time. To vary the metaphor, the process has resembled the sluggish
movement of the glacier rather than the catastrophic charge of the avalanche. But when
once a new tort has come into being it might fairly seem to have done so, if the whole
history of its development is taken into account, in virtue of the principle that
unjustifiable harm is tortious.

Where the courts hold that the harm is justifiable, there is, of course, no tort. And they
may hold that it is justifiable for any one or more of several reasons. The plaintiff may be
asking them to do what they think Parliament is more fitted to do; or he may be alleging a
particular tort, without giving proof of some essential requisite of it; or he may be taking
an exaggerated view of what is necessary to his own comfort or prosperity; or he imay be
demanding the creation of a remedy which would throw out of gear other parts of the
law. But, subject to these restrictions and looking at the law of too ts in the whole of its
development, Winfield still inclined to th.c first theory.

Whether two coins or two sides of one coin?

However, since the supporters of the second view do not deny that the law of tort is
capable of development, or even that new heads of liability can come into existence, and
since the supporters of the first view admit that no action will lie if the conduct which
caused the harm was justifiable, the difference between them is perhaps less than is
sometimes supposed. Summing up his investigation into the controversy, Professor
Glanvil Ie Williams said this:

18
 “The first school has shown that the rules of liability are very wide. The second
school has shown that some rules of absence of liability are also very wide.
Neither school has shown that there is any general rule, whether of liability or of
non-liability, to cover novel cases that have not yet received the attention of the
courts. In a case of first impression, that is, a case that falls under no established
rule or that falls equally under two conflicting rules — there is no ultimate
’j principle directing the court to find for one party or the other. ... Why shouid we
not settle the argument by saying simply that there are some general rules
creating liability...and some equally general rules exempting from
liability...Between the two is a stretch of disputed territory, with the courts as an unbiased
boundary
commission. If, in an unprovided case, the decision passes for the plaintiff, it will
be not because of a general theory ef liability but because the court feels that here
is a case in which existing principles of liability may properly be extended.”

Thus, it can reasonably be said that none of the two theories paint t.he whole picture.
What they show to us is only two sides of the same picture. This can further be seen by
understanding the process by which new torts come into picture.

HOW NEW ‘TORTS’ COME INTO RECOGNITION:'

In England plaintiffs do not have to insert legal theories into their claims. All they strictly
have to do is to state the facts that, they allege, entitle them to the remedy they claim
against the defendant. If the defendant says that even if the facts were true the plaintiff
) still should not win, the court has to rule on whether the facts alleged by the plaintiff, or a
sub-set of them, are capable of entitling the plaintiff to win. If the court rules in favour of
the plaintiff, the result is that the pattern of facts alleged gives the plaintiff a ‘cause of
action’ against the defendant. If that 'cause of action’ comes up in a number of cases, it
becomes tempting to give that pattern of facts a shorthand name, for example ‘malicious
falsehood' or the ‘rule in Rylands v. Fletcher’. Plaintiffs are then said by lawyers, for the
sake of convenience to sue ‘in' or ‘for’ the shorthand name, for example ‘in negligence’
or ’for defamation’. But this is only shorthand. In a subsequent case, a plaintiff may be
able to prove only some of the facts described by the shorthand name. The defendant will
say that the plaintiffs facts are insufficient. The plaintiff will say that the missing facts
are not relevant. If the court agrees with the plaintiff, one can describe the situation in
two ways. First one can say that the requirements of the ’tort’ known by the shorthand
n rn• leave chan.ged, and have become less onerous for plaintiffs. Or, secondly, one can
say :l!at ihere is a new ‘tort' to be known by a new shorthand name.

The process of invention/recognition of new torts can be appreciated through the cases of
Wilkinsori v. Downton and Khorasandjian v. Bush.
....... . - - ... - - . . . . . . . . . . . . . . . . . .. - - - . ... . . - . . ... . .... .. ..

. .'. -’ ?
›

19
 Wilkinson v. Downion
[ 1897] 2 QB 57

Wright, J
In this case the defendant, in the execution of what he seems to have regarded as a
practical joke, represented to the plaintiff that he was charged by her husband with a
message to her to the effect that her husband was smashed up in an accident, and was
lying at the Elms at Leytonstone with both legs broken, and that she was to go at once in
a cab with two pillows to fetch him home. All this was false. The effect of the statement
on the plaintiff was a violent shock to her nervous system, producing vomiting and other
more serious and permanent physical consequences at one time threatening her reason,
and entailing weeks of suffering and incapacity to her as w•ll as expense to her husband
for medical attendance. These consequences were not in any way the result of previous ill
health or weakness of constitution; nor was there any other idiosyncrasy.

In addition to these matters of substance there is a small claim for Is. 10 1/2d. for the cost
of railway fares of persons sent by the plaintiff to Leytonstone in obedience to the
pretended message. As to this 1s. 101/2d. expended in railway fares on the faith of the
defendant’s statement, I think the case is clearly within the decision. in Pasley v. Freeman
100 ER 450. The statement was a misrepresentation intended to be acted on to the
damage of the plaintiff.

The real question is as to the $100, the greatest part of which is given as compensation
for the female plaintiffs illness and suffering. Its was argued for her that she is entitled to
recover this as being damage caused by fraud, and therefore within the doctrine
eitablished by Pasley v. Freeman . . .. I am not sure that this would not be an extension of
that doctrine, the real ground of which appears to be that a person who niakes a false
statement intended to be acted on m.ust make good th• damage naturally resulting from its
being acted on. Here there is no injur:•a of that kind. I think, however, that the verdict
may be supported upon another ground. The defendant has, as I assume for the mom•nt,
will tully done an act calculated to cause physical harm to the plaintiff — that is to say, to
infringe her legal right to personal safety, and has in fact thereby cause physical harm to
her. That proposition without more appears to me to state a geod cause of action, there
being no justification alleged for the act. This willful injurio is in law malicious, although
no malicious purpose to cause the harm, which was caused, nor any motive of sorte is
imputed to the defendant.

It remains to consider whether the assumptions involved in the proposition are made out.
One question is whether the defendant’s act was so plainly calculated to produce some
effect of the kind which was produced that an intention to produce it ought to be imputed
to the defendant, regard being had to the fact that the effect was produced on a person
proved to be in an ordinary state of health and mind. I think it was. It is difficult to
imagine that such a statement, made suddenly and with apparent seriousness, could fail to
producc grave effects under the circumstances upon any but and exceptional Iy indifferent
person, and therefore an intention to product such an effect must be imputed, and it is no
answer in law to say that more harm was done than was anticipatcd, for that is commonly

20
 the case with all wrongs. The other question is whether the effect was, to use the ordinary
phrase, too remote to be in law regarded as a consequence for which the defendant is
answerable. Apart from authority, I should give the same answer and on the same ground
as the last question, and say that it was not too remote. .

Suppose tha! a person is in a precarious and dangerous condition, and another person
‘) tells him that his physician has said that he has but a day to live. In such a case, if death
ensued from the shock caused by the false statement, I cannot doubt that at this day the
case might be one of criminal homicide, or that if a serious aggravation of illness ensued
damages might be recovered. I think, however, that it must be admitted that the present
case is without precedent.

There must be judgment for the plaintiff for $ 100 1s. 10 1/2d.

Khorasandjian v. Bush
[1993] 3 All ER 669

The plaintiff, who was aged 18, met the defendant, who • as aged 23, in 1990. They
became friends but never cohabited and never married. In 1991 the plaintiff told the ..„..
defendant that she wanted nothing more to do with him but the defendant was unable to
accept that and started harassing the plaintiff. He assaulted her, threatened violence
towards her, followed her around shouting abuse, and pestered her with telephone calls to
her at her parents and grandmother’s homes to such an extent that the telephone numbers
had to be changed. In March 1992 he was arrested for threats and abuse behaviour
towards the plaintiff and was given a conditional discharge. In May he was sentenced to a
short term of imprisonment for threatening to kill the plaintiff. The plaintiff applied for
an interlocutory ini unction against the defendant complaining that his aggressive
behaviour, pestering and harassment had continued, with persecution by telephone calls
directed not only against the plaintiff but also her mother, her current boyfriend and his
mother and that the defendant had maliciously damaged her car. On 10 July the county
court judge granted the plaintiff an interlocutory injunction restraining the defendant
from using violence to, harassing, pestering or communicating with, the plaintiff in any
way.

Miss Harry Thomas submits, b.owever, that English law does not recognize. any tort of
harassment or invasion of privacy or, sa-ze in the different context or’ such a rase as
Rokkes v. Barnard [ 1964] All ER 367, intimidation. Therefore, she says, that, sa: e as
expressly conceded as set out above, the defendant’s conduct to the plaintiff is, even on
the plaintiffs version of it under the English civil law, legitimate conduct of which the
plaintiff has no power or right to complain.

Dillon, LJ
’l’he substantive point of the appeal is, howcver, that it is said for the defendant that judge
Stockdale had no jurisdiction to restrain the defendant from harassing, pestering or
communicating wjth the plaintiff because those words did not reflect any tort kriowii to

21
 the law and an interlocutory injunction could only be granted to protect a legal right of
the plaintiff.

Miss Harry Thomas for the defendant concedes, as I have already indicated, that an
injunction could be granted to restrain the defendant from assaulting or threatening to
assault the plaintiff. She concedes also that an injunction could be granted to restrain the
defendant from interfering with the plaintifrs property, e.g., there could be an injunction
to restrain wrongful interference with goods such as the taking of the plaintifrs handbag,
or to restrain malicious damage to property, such as, if sufficiently proved, the making of
the scratches on the paintwork of the plaintiffs car. In relation to the telephone calls, she
concedes that if the plaintiiPs mother has a freehold or leasehold interest in the parental
home, the plaintiff’s mother could complain of persistent unwanted telephone calls made
by the defendant to the plaintiffs mother in the parental home, as that would fall within
the tort of private nuisance. But she submits, in reliance on the decision of this court in
Maline v. Laskey [ 1907] 2 KB 141 that the basis of the tort of private nuisance is
interference with the enjoyment of person’s property, an‹i therefore the plaintiff, is in law,
mere licensee in her mother’s property with no proprietary interest, and cannot invoke the
tort of private nuisance to complain of unwanted and harassing telephone calls made to
her in her mother’s home.

To my mind, it is ridiculous if in this present age the law is that the making of
deliberately harassing and pestering telephone calls to a person is only actionable in the
civil court if the recipient of the calls happens to have the freehold or a leasehold
proprietary interest in the premises in which he or she has received the calls.

I apprehend that it is correct, historically, that the tort of private nuisance, which
organized as an action on the case, was developed in the beginning to protect private
property or rights of property, in relation to the use or enjoyment of land. It is stated in
Clerk & Lindsell on Torts (16“ edn, i989, para 24-01) that ‘the essence of the nuisance is
a condition or activity which unduly interferes with the use or enjoyment of land’.

That a legal owner of property can obtain an injunction, on the grounds of private
nuisance, to restrain persistent harassment by unwanted telephone calls to his home was
decided by the Appellate Division of the Alberta Supreme Court in Motherwell v
Motherwell (1976) 73 DLR (3d) 62 The court ihere rejected, by reference to English
authority, a submission -
"that the common law does noi have within itseli’ the resources to recognize
invasion of privacy as either included in an e. isting category or as a new category
of nuisance, and that it has lost its original power, by which indeed it created
itself, to note new ills arising in a growing and changing society and
pragmatically to establish a principle to meet the need for control and remedy;
and then by categories to develop the principle as the interests of justice make
themselves sufficiently apparent.”

22
 Consequently, notwithstanding Malone v Laskey, the court held that the wife of the
owner had also the right to restrain harassing telephone calls to the matrimonial home.
3 Clement JA, who delivered the judgment of thc court, said:
“Here we have a wife harassed jn the matrimonial home. She has a status, a right
*o live there with her husband and children. I find it absurd to say that her
occupancy of the matrimonial home is insufficient to found an action in nuisance.
In my opinion, she is entitled to the same relief as is her husband, the brother.”

I respectfully agree. and in my judgment this court is entitled to adopt the same approach.
The court has at times to reconsider earlier decisions in the light of changed social
. conditions. If the wife of the owner is entitled to sue in respect of harassing telephone
I calls, then I do not see why that should not also apply to a child living at home with her
parents.

Damage is, in the relevant category, a necessary ingredient in the tort of private nuisance
and I shall have to refer further to that later. So far as the harassing telephone calls are
concerned, however, the inconvenience and annoyance to the occupi•r caused by such
calls, and the interference thereby with the ordinary and reasonable use of the property
are sufficient damage. The harassment is the persistent making of the unwanted telephone
calls, even apart from their content; if the content is itself as here threatening and
objectionable, the harassment is the greater.

Peter Gibson, J (Dissenting)

Miss Harry Thomas appearing for the appellant criticized the inclusion in the order of a
restraint against harassment or persisting because that afforded the plaintiff far more
protection than she was entitled to. She submitted that there was no tort of harassment or
pestering, though she accepted that some acts of harassment may constitute an assault or
threatened assault or; but she submitted that threatening would not alone constitute an
assault. Mr. Turl contended that the law of tort had developed and that there now was a
tort of unreasonable harassment. For this he relied on Thomas v. National Urion of
Mineworkers [ 1985] 2 All ER 1. In that case some working miner sought injunctions
restraining the union which had called a miners strike; from organizing unlawful
picketing or demonstrations. Scott, J said:
“The working miners are entitled to use the highway for tb.e purpose of entering
and leaving their respective places of work. In the exercise of that right they are at
present having (sic) to suffer the presence and behaviour of the pickets and
demonstrators. The law has long recognized ti:at unrcasonable interference with
the rights of others is actionable in tort. The law of nuisanc• is a classic example
and was classically described by Lindley MR in J L yous H Sons v. iVilkins 1599]
1 Ch 255 at 267... It is, however, not every act of interference with the enjoyment
by an individual of his property rights that will be actionable in nuisance. The law
must strike a balance between conflicting rights and interests. The point is made
in Clerk and Lindsell, para 23-01: ‘a variety of different things may amount to a
nuisance in /ac/ but whether they are actionable as the tort of nuisance will
depend upon a variety of considcratiuns arid a balancing of r.rinfiicting interests.’
Nuisance is strictly concerned with and may I ,garded as confined to activity

23 ”
 which unduly interferes with the use or enjoyment of land or of easements. But
there is no reason why the law should not protect on a similar basis the e•i yment
of other rights. All citizens have the right to use the public highway. Suppose an
individual were persistently th follow another on a public highway, making rude
gestures or remarks in order to annoy or vex. If continuance of such conduct were
threatened, no one can doubt but that a civil court would, at the suit of the victim,
restrain by an injunction the continuance of the conduct. The tort might be
described as a species of private nuisance, namely unreasonable interference with
the victim’s rights to use the highway. But the label for the tort does not in my
view matt•r.”

For my part, to the extent that Scott, I was holding that there is now a tort of
unreasonable harassment, with all respect to him, I cannot agree with him. There is no
tort of harassment (Patel v. Patel [1988] 2 FLR 179 at 182 per Waterhouse, I) and I do
not think that the addition of the adjective ‘unreasonable’ would convert harassing
conduct into tortious conduct.

24
I

1. GENERAL CONDITIONS OF LIABILITY

n general, tort consists in some act done by the defendant whereby he has without just
cause or excuse caused some form of harm to the plaintiff. The law of torts exits for the
purpose of preventing men from hurting one another, whether in respect of their property,
their persons, their reputations, or anything else which is theirs. The fundamental
principle of this branch of the law is n/ierurii non laedere - to hurt nobody by word or
deed. An action of tort, therefore, is usually a claim for pecuniary compensation in
respect of damage suffered as the result of the invasion of legally protected interest. An
interest lS a claim or demand want or desire put forward by mail in civilized society.
The task of the courts is, first, to decide which interests should receive legal protection,
and secondly, to hold the balance between interests which have received protection. It is
obvious that not all object of human desire can or should receive legal protection. The
law began by affording protection against invasion of interests in bodily security,
integrity of land or chattels, and rreedom of reputa:ion. In the course of time it has
recognized other and less obvious (but perhaps equa)ly valuable) interests. Thus, interests
in the security of domestic or contractual relationships have been protected, and in recent
years considerable advances have been made in the direction of protecting interests in
emotional security, and in protecting financial or pecuniary interest against careless
invasions.
1
But whatever interest gets legal protection and acquires the shape of a tort, the
satisfaction of following two conditions is sine qua non fo- a successful cause of action
of time plaintiff:
! ) Th•re must be some act or omission on the part of the defendant
2) The act or omission should result in legal damage or injuria, i.e., violation of a
legal right vested in the plaintiff

Act or omission
In order to make a person liable for a tort he must have done some act which he was not
expected to do, or, he must have omitted to do something which he was supposed to do.
Either n positive wrongful act or nn omission which i.• illegally made will make a person
liable. Foi‘ example, if A summits the act of trespass or publishes a statement defaining
another person, or wrongfully detains anothcr pcrson, lie can be made liable for trespass,

25
 defamation or false imprisonment, as the case may be. Similarly when there is a legal
duty to do some act and a person fails to perform that duty, he can be made liable for
such omission. For example, if a corporation, which maintains a public park fails to put
proper fencing to keep the children away from a poisonous tree and a child plucks and
eats the fruits of th.e poisonous tree and dies, the corporation would be liable for such
omission. In the same way an employer failing to provide a safe system of work would
be liable for the consequences of such an omission.

It may be noted that the wrongful act or a wrongful omission must be one recognized by
law. If there is a mere moral or social wrong, there cannot be a liability for the same. For
example, if somebody fails to help a starving man or save a drowning child, it is only a
moral wrong and therefore, no liability can arise for that unless it can be proved that there
was a legal duty to help the starving man or save the drowning child.

Legal damage
’) In order to be successful in an action for tort, the plaintiff has to prove that there has been
a legal damage caused to him. In other words, it has got to be proved that there was a
wrongful act - an act or omission causing breach of a legal duty or the violation of a legal
right vested in the plaintiff. Unless there has been the violation of legal right, there can be
no action under law of torts. If there has been violation of a legal right, the same is
actionable whether, as a consequence thereof, the plaintiff has suffered any loss or not.
This is expressed by the maxim Injuria sine dammo. Injuria means infringement of a
right conferred by law on the pJaintiff or an unauthorized interl‘erence, howsoever trivial, with the
plaintiffs right. Damnum means substantial harm, loss or damage in respect of
j money, comfort, health or‘ the like. Thus, when there has been iriyurin or the violation of a
legal right and the same has not been coupled with a damnum or harm to the plaintiff, the
plainti ff can still go to the court of law because no violation of a legal right should go
unredressed.

Since what is actionable is the violation of a legal right, it therefore follows that when
there is no violation of a legal right no action can lie in a court of law even though the
defendant’s act has caused some loss or harm or damage to the plaintiff. This is expressed
by the maxim Damnum size injuria. It means that damage without the violation of a legal
right is not actionable in a court of law. The reason for the same is that if the interference
in the rights of another person is not iirilawful or unauthorized but a necessary
consequen.ce of the exercise of his own lawful rights by the defendant, no action should
lie. Thus, the test to *wew •.'whether the defendant should or should not be liable is not
whether the pieinti*f ha.s suffered any loss or not, but the real test is whether any lawful
right vested in the p1a:ntifF has been violated or not.

Injuria sine damno

Injuria sine damno means violation of a legal right without causing any harm, loss or
damage In the plaintiff. Tliei‘e are two kinds of tort. Firstly, thosc torts which arc
actionable per se, i.e., actionable without the proof of any damage or loss. For instance,

26
 trespass to land is actionable even though no damage has been caused as a result of the
trespass. Secondly, the torts which are actionable only on the proof of some damage
caused by an act.

Injuria sine damno covers the first ot“ the above stated cases. In such cases there is no
need to prove that as a consequence of an act the plaintiff has suffered any harm. For a
successful action the only thing which has to be proved is that the plaintifPs legal right
has been violated, i.e., there is injuria. Ashby v. lPdife is a leading case explaining lhe
maxim injuria sine damno. In this case the plaintiff succeeded in his action, even though
the defendant’s act did not cause any damage. The plaintiff was a qualified voter at a
parliamentaiy el•ction, but the defendant, a retuming officer, wrongfully refused to take
plaintifPs vote. No loss was suffered by such refü sal because the candidate for whom tte
wanted to vote won in spite of that. lt has held that the defendant was liable. Holt, C. J.
said: “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 và in thing to imagine a right without a remedy; for want of right and want of remedy
are reciprocal. Every injury imports a damage, though it does not cost the party one
farthing. For a damage not merely pecuniary but an injury imports a damage, when a
person is thereby hindered of his right. As in an action fer slanderous words, though a
man does not lose a penny by reason of speaking them, yet he shall have an action. So, if
a man gives another a cuff on the ear, though it cost him nothing, no, not so much as a
little diachylon (plaster) yet he shall have his action, for it is a personal injury. So a man
shall have an action against another for riding over his ground though it does him no
damage: for it is an invasion of his property, and the other has no right to come there.”

In Bhim Singh v. State ofJ&K the petitioner, an MLA of Jammu and Kashmir Assembly,
was wrongfully detained by the police white he was going to attend the Assembly
session. He was not produced before the magistrate within requisite period. As a
consequence of this the member was deprived of his constitutional right to attend the
Assembly session. There was also violation of fundamental right to personal liberty
gù aranteed under Article 21 of the Constitution. By the time the petition was decided by
the Supreme Court, Bhim Singh had been released but by way of consequential relief
exemplaiy damages amounting to Rs. 50,000 were awarded to him

In case of injuria sine damno the loss suffered by the plaintiff is not relevant for the
purpose or a cause of action. It may be relevant only as regards *.b.e measure of damages.
If the plaintiff has suffered no harm- and yet tire wrongfiil act‘is' actionable, the question
which arises is how much compensation is to be paid to the plaintiff? In such a case
generally nominal damages may be awarded. For instance, the amount of compensation
payable may be just five rupees. The purpose of law is served in so far as the violation of
a legal right does not remain without a legal remedy. If, however, the court feels that the
violation of a legal right is owing to mischievous and malicious act, as had happened in
Bhim Singh case, the court may grant even exemplary damages.

27
 Damnum sine injuria

There are many forms of harm of which the law takes no account. Damage so done and
suffered is called damnum sine injuria, and the reasons for its permission by the law are
various and not capable of exhaustive statement. For example, the harm done may be
caused by some person who is merely exercising his own rights; as in the case of the loss
inflicted on individual traders by competition in trade, or when the damage is done by a
man acting under necessity to prevent a greater evil, or in the exercise of statutory
authority. Or the courts may hold, on balancing the respective interests of the parties, that
sound policy requises that the in:erests of the defendant should prevail over those of the
plaintiff. So the natural right to support of a natural landowner is subordinate to the
l natural right of his neighbour to exploit his property by the extraction of underground
water not percö lating through defined channels, whether the defendant has acted
intentionally or care)essly. Other examples may be found iii the law relating to damage
caused by defamatory statements made on a privileged occasion. Or the harm complained
of may be too trivial, too indefinite, or too difficult of proof for the legal suppression of it
to be expedient of effective.

So also the harm done may be of such a nature that the law considers it inexpedient to
cö nfer any right to pecuniary compensation upon the individual ini ured, but provides
some other remedy, such as a criminal pros•cution. Such is the case, for example, with
the harm which an individual suffers in common with the public at large by reason of the
ex:stence of a public nuisance. There is no right of action for damages for contempt of
court, or perjuiy. So also there are at present no torts entitled “breach of trust” or
harassment” or “unlawful trading” or “copying”.

Causing of damage, however substantial, to another person is not actionable in law unless
there is also violation of a legal right of the plaintiff. This is generally so when the
exercise of legal right by one results in consequential harm to the other. “The mere fact
that a man is injured by another’s act gives in itself no cause of action; if the act is
deliberate, the party injured will have no claim in law even though the injury is
intentional, so long as the other party is exercising a legal a legal right.” Gloucester
Grammar School case explains the point. There 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
piaintiffs had no remedy for the loss thus suffered by them. Hankford, J. said: “Damnum
mcJ ñ e oñ s,rqii‹r injiiria, as if I have a rriill and my neighbour builds another mill whereby
the prGf.I o* my m.il! is diminished, I shall have no action against him, although I am
damaged, but if a miller disturbs the water’ from going to my mill, or does any nuisance
of the like sort, I shall have such action as the law gives.”

In Acton 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 thcrc found to his own purposes, at his free will and pleasures, and
that if in the exercise of such rights he intercepts or drains off the water collected from

28
 underground springs in the neighbour’s well this inconvenience to his neighbour falls
within description damnum abseque injuria which can not become the ground of action.”

The maxim was also applied by the Andhra Pradesh High Court in P Seetharamayya v.
Mahalakshmma. There, fuur defendants tried to ward off the flow of water into their plot
from a stream by digging a trench as well as putting up a bund on their lands. The fifth
defendant; also, acting independently, put up bunds on her land to prevent the flow of
water to her land. As a result of the act of these five defendants, the rainwater now
flowed to the plaintiffs land causing damage to them. The plantiffs requested for a
mandatory injunction to demolish the bunds and to fill up the trench on the defendar.ts
lands, for a permanent injunction preventing them from making bunds or making such
trench and also for damages amounting to Rs. 300 for the loss already caused due to the
flow of the water to their land. The High Court held that the owner of land on or near a
river has a fight to build a fence upon his own ground to prevent damage to his ground by
the overflow of river even though as a result of the same the over-flowing water is
diverted to t.he neighbour’s land and causes damage. This being a clear case of damfluri
sine injuria, the defendants were not liable for the harm to the plaintiffs.

The law permits the protection of one’s property from apprehended danger by preventing
the entrance of floodwater to his land even though such an act causes damage to the
neighbours. But if the floodwater has already entered one’s land, the law does not permit
him to ease it upon adjoining land.

In Bradford Corporation v. Pickles the House of Lords went a step further and held that
even if the harm to the plaintiff has been caused maliciously no action can lie for the
same unless the plaintiff” can prove that he has suffered injuria. In this case the plaintiffs
had been deriving water from the adjoining land of the defendant which was at a higher
level. The defendant sank a shaft over his own land which diminished and discolored the
woter flowing to the land of the plaintiffs. The plaintiffs claimed an injunction to restrain
the defendant from sinking the shaft alleging that the sole purpose of the same was to
injure the plaintiffs as they did not purchase his land at an exorbitant price. The House of
Lords held thai since the defendant was exercising his lawful right, he could not be made
liable even though the act, which injured the plaintiff, was done maliciously. Lord
Ashbourne said: “The plaintiffs heve no cause unless they can show that they are entitled
to the flow of the water in question, and that the defendant !:as no right to do what he is
doing....The law stated by this House in Chesm.ore v. Richards caiuict be quest‹one . Mr.
Pickles has ac:ed within his legal rights throughout; and is .he to forfeit those rights and
be punished for their legal exercise because certain motives are imputed to him? If his
motives were the most generous and philanthropic in the world, they would not avail him
when his actions were illegal. If his motives are selfish and mercenary, that is no reason
why his rights should be confiscated when his actions are legal.”

Thus, a legal act, through motivated by malice, will not make the defendant liable. The
plaintiff can get compensation only if he proves to have suffered injury because of an
illegal act of the defendant and not otherwise.

29
 Town Area Committee v. Prabhu Dayal also explains this point. In that case the plaintiff
constructed sixteen shops on the old foundations of a building. The said construction was
made without giving a notice of intention to erect a building under Section 178 of the UP
Municipalities Act and without obtaining necessary sanction required under Section 180
of the Act. The defendants demolished this construction. In an action against the
defendants to claim compensation for the demolitions, the plaintiff alleged that the action
of the defendants was illegal as it was mala fide. It was held that the defendants were not
liable as no “injuria” could be proved because if a person constructs a building illegally,
the demolition of such building by the municipal authorities would not amount to causing
“injuria” to the owner of the property.

14 REQUIREMENT OF iYIENTAL ELEMENT

A natural query arises whether the mental state of the tortfeaser is a relevant factor in
judging his liability under the law of torts. The point becomes more pinching in the light
that proving the mental condition of any human being at a particular part of time is a
tough task. Under criminal law menu rea (i.e., guilty mind) is generally required to fix the
liability, though there are certain exceptions as well. In the area of law of torts the state of
mind of a person is relevant to ascertain his liability in number of torts (assault, deccit,
false imprisonment, conspiracy, etc.) whereas in certain cases (conversion, defamation,
etc.) the liability arises even without any wrongful intention or negligence on the part of
.’ the defendant. Hence, it is pertinent to know that what is meant by intention or
negligence, as a state of mind.

Invention

Some torts require intention on the part of the wrongdoer. It is, of course, impossible for
the law to do more that to infer a person’s intention, or indeed any other mental state of
his, from his conduct. The law may frequently attribute to him an intention which a
metaphysician would at most consider very doubtful. Centuries ago, Brian, CJ said: “It is
common knowledge that the thought of man shall not be tried, for the Devil himself
knoweth not the thought of man.” On the other hand, Bowen, LJ in 1885 had no doubt
that “the state of a man’s mind is as much a fact as the state of his digestion”. There is no
contradiction in these dicta. All that Brian, CJ meant was that no one can oc perfectly
certain of what passes in the mind of another person. But Brian would certainly not have
dissented from the proposition tb.at in law what a person thinks must be deduced from
what he says and does; and that is all that Bowen, LJ meant.

Given this basis premise that intention can only be inferred from conduct we are still left
with the problem of defining intention. Everyone agrees that a person intends a
consequence if it is his desire or motive to bring it about, but beyond that it is probable
not possible to lay down any universal definition for the purposes of tort.

30
 .Negligence

‘Negligence’ is an independent tort with a number of elements. What we are concemcd

with at this point is negligence as the state of mind which is one element of the tort (and
of course of some other torts). In this sense it usually 4ignifies inadvertence by the
defendant to the consequences of his behaviour, simple examples being the motorist who
day dreams, the solicitor who forgets about the approach of the limitation period or the
doctor who forgets that the patient is allergic to a treatment. It may be that the word
should only be used in this sense but for the purposes of the tort of negligence a
defendant clearly cannot escape liability because he adverted to the risk if the case is one
where even inadvertence would saddle him with liability. An illustration of advertence is
Vaughan v. Menlove, where the defendant had been warned that his haystack was likely
¡' to overheat and catch fire, which might spread to the land of his neighbour. He said that
he would ‘chance it’ and he was held liable for the damage which occurred when the
stack actually took fire.

TWO TYPES OF LIABILITY

Now we can discuss those situations where mental element (fault) is a relevant factor and
where liability is based on no fault (strict liability).

Fault when relevant

In many of the branches of law of torts like assault, battery, false imprisonment, deceit,
malicious prosecution and conspiracy, the state of mind of a person is relevant to
ascertain his liability. We may have to see whether a particular wrongful act was done
intentionally or maliciously. Sometimes, we may compare the conduct of the defendant
with that of a reasonable man and make him liable only if his conduct falls belo-x the
standard expected of a reasonab!e man. When the circumstances demand care and a
person fails to perform the duty to take care, he is !iable for the tort of negligence. On the
. other hand, if the defendant has taken such care as was expected from him, he is not
liabie for the damage to the plaintiff.

Mental element may become relevant in another way aiso. If the defendant’s conduct is
innocent in sG far as the act done was due to an inevitable accident, he may be excused
from liability. Thus, if I have no reason to believe that there are electric wires beneath my
land an.d the same get damaged on my making time excavations ihere, I wil! not be liabic
for the damage to the wires. Similarly, if the defendant’s horses, for no fault on iris part
cause injury to somebody on a public highway, the defendant can take the defence of
inevitable accident. The defence of necessity may also be available in the same way.
Necessity can be pleaded when the defendant’s act is not actuated by a wrongful intent
but he is compel led by the circumstances to cause some smaller harm intention.ally in
order to prevent a greater evil. It is, therefore, a good defence to an action for trespass
that the same has been committed to prevent the spread of fire to the adjoining land.
SiiTlilarly, pulling out a drowning main out of water, forcibly feeding a hunger-striking
prisoner, or perfomiing of an operation of a unconscious person by a surgeon to save the
foriiier’s life, arc not actionable.

21
 In certain cases, liability is independent of intention or negligence Liability in libel does
not depend on the intention of the deramer, but on the fact of defamation; so too there is
s:rict liabilitv for damage done by a wild animal, or by the escape of dangerous things
accumulated for some non-natural purpose (the rule in Rylands v. Fletcher); again,
liability is strict when one is vicariously responsible for the acts of another. In cases such
as these the security of the particular interest of the plaintiff is predominant over the
dePendant’s interest in freedom of action. It is a mistake, however, to think of the
predominance a complete. In appropriate cases defences such as act of God or act of a
, third party are available. Liability may be s'rict but it is never absolute. (In Indian
context the liabili ' can be even absolute after the Supreme Court decision in M C Mehta
case]

Despite the continuing dominance of fault liability, the English law of tort does contain
certain limited principl•s of strict liability with regard to personal injuries. Some of these
are of common law origin and of respectable antiquity, others have been the creation of
modem statutes and have either been limited in their practical importance or of rather
haphazard application. It is unlikely that any consistent policy has been followed in the
creation of.these areas of strict liability, though it is perhaps possible to discern behind
them some very hazy idea of unusual or increased risk. However, the strictness of the
liability varies considerably along a spectrum form near-absolute liability to little more
than a reversed burden of proof, and in nearly every case the defendant may plead the
contributory fault of the plaintiff as a defence or in diminution of damages.

French law has always had an element of strict liability for motor accidents because of
the provision of the provision in Article 1384 of the Civil Code governing damage caused
by a ‘thing’ in one’s custody, but the law of July 5, 1985 goes further by allowing victims
(other than drivers) to recover damages even though they themselves are at fault. Only if
the victim’s fault is inexcusable and is the sole case of the accident, is he barred.

The trend

The relative recent trend is to shift the liability to those shoulders who can bear it or those
who can pass the loss on to the public. As observed by Lord Justice Henning.legislative
and judicial developments show that the c cation of liability in tort is not so much
culpability, but on whom should the risk fall. “In India as well as in England we come
across various enactments like the Fa!al Accidents Acts anti Workmen’s Compensation
Acts which provide for compensation to th• victim without going into tire ques:ion cf
fault. 3 he reason for the same is that those who are made to pay compensation are either
considered to be in a better position to bear the burden or are in such a position that they
can pass the loss to the public in the form of higher charges for their services or the
products.

32
 RELEVANCE OF MALICE

The term ‘malice' has been used in two different senses. In its legal sense it means a
willfiil act done without just cause or excuse and it is know as ‘malice in law’. On the
other hend, in its narrow and popular sense it means aa evil motive, and the same is know
as ‘malice in fact’.

Malice in law

In thc tcchnical legal sense or as malice in law’ it does not connote an act done with an
improper or evil motive but it simply signifies “a wrongful act done intentionally without
just cause or excuse.” Viscount Haldane described malice in law as under:
“A person who inflicts an injury upon another person in contravention of the law
is not allowed to say that he did so with a innocent mind; he is taken to know the
raw, and he must act within the law. He may, therefore, be guilty of malice in law,
although, so far the state of his mind is concerned, he acts ignorantly and in that
sense innocently.”
Malice in its legal sense, thus, means malice such as may be assumed from the doing of a
wrongful act intentionally but without just cause or excuse, or for want of reasonable or
probable cause. Malice in law simply mean!i a wrongfii) intention which is presumed in
case of an unlawful act, rather than a bad motive or feeling of ill-will. For example, iii an
action for defamation it may be mentioned that the alleged statement was published
falsely and ’maliciously’. Here it simply means that the statem5nt is false and is also
made without lawful justification.

Malice iii fact

In its popular sense or as 'malice in fact’ it mea.us an evil motive for a wrongful act.
When the defendant does a wrongful act with a feeling of spite, vengeance or ill-will the
act is said to be done maliciously. Motive means an ulterior reason for the conduct. It is
different from intention, which relates to the wrongful act itself. The immediate intention
of a person may be to commit theft, the motive for the left may be to buy food for his
children or to help a poor man. The question which sometimes arises is: How far the
motive of a person is relevant in determining his liability in tort? As a general rule motive
is not relevant to determine a person’s liability in the law of torts. A wrongful act does
not become lawnii merely because the motiv• is good. Similarly, a 1s v*ul set does net
become wrongful because of a bad motive, cr marine.
The case of South Wales ñfiners Federation v. Glamorgan Coal Company is an .
illustration to explain the first aspect of the rule, i.e., that a wrongfiil act is not converted e
into a lawful act by a good motive. In this case the plaintiffs, the o• ners of coalmines,
brought an action against the defendants, a 'miners’ union, for including its workmen to
make the breach of contract of their employment by ordering them to take certain
holidays. The act of the defendants was not actuated by any ill-will but the object was to
keep up the price of coal by which the woges were regulated. ‘1 hc I louse of’ Lords held
the defendants liabl•.

33
 Bradford Corporation v. Pickles is an authority which explains the other aspect, i.e., a
lawful act does not become unlawful merely because of an evil motive. Lord
Macnaughten said: “In such a case motives are immaterial. It is the act, not the motive for
the act, that must be regarded. If the act apart from the motive gives rise merely to
damage without legal injury, the motive, however reprehensible it may be, will not
supply that eleinent.”

In Town Area Committee v. Prabhu Dayal provides another example of the application of
the rule. Justice Hari Swaroop opined. “The plaintiff can get compensation only if he
proves to have suffered injury because of an illegal act of the defendant and not
otherwise. Malice does not enter the scene at all. A legal act though motivated by rrialice,
will not make the actor liable to pay damages...merely because some officer has malice
against a citizen who has committed a wrong will not render the action of the authority
invalid if it is otherwise in accordance with law. Mere malice cannot disentitle a person
from taking recourse to law for getting the wrong undone. It is, therefore, not necessary
to investigate whether the action was motivated by malice or not.”

Exceptions to the rule

In the following ex.ceptional cases the malice or e•zil motive becomcs relevant in
determining liability under the law of torts:
1) When the act is otherwise unlawful and the wrongful intention can be gathered
from the circumstances of the case.
2) In the torts of deceit, conspiracy, malicious prosecution and injurious falsehood,
one of the essentials to be proved by the plaintiff is malice on the part of the
defendant.
3) In certain cases of defamation, when qualified privilege or fair comment is
pleaded as a defence, motive becomes relevant. The defence of qualified privilege
is available if the publication was made in good faith. 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.
4) Causing of personal discomfort by an unlawfial motive may turn an otherwise
lawful act into nuisance.
5) Malice or evil motive may result in aggravation of damages.
. . . ........ . ..................- - - - - ....

A!!en v . F/ od
[1898] AC 1 (HL)

The ‘Sam Weller’ was under repair by the Glengall Iron Co. in the Regent Dock at
Millwall; the woodwork was being done by shipwright, including the plaintiffs Flood and
Taylor, members of the tiny Shipwrights Provident Union and the ironwork was being
done by about forty boilermakers, belonging to the huge Independent Society of Boiler
Makers and Iron & Steel Ship Builders, whose London delegate was the defendant Allen.
The boilermakers discovered the L food and Taylor had been employed on ironwork by
anothcr company and wired for A 1 len, who came and talked *o the boilermakers. He then

34
 told the company’s managerthat the boilmakers would go on strike unless Flood and
Taylor were dismissed that very day. It was assumed that all the contracts were
determinable at will.

Kennedy, I ruled that th•re was no eviden.ce of conspiracy, or of intimidation or coercion

of breach of contract. The jury found that Allen maliciously induced the Glengall Co. to
discharge Flood and Taylor from their employment, and also not to engage them again,
and that each plaintiff had suffered damage amounting to $20. After consideration,
Kennedy, J gave judgment for the plaintiffs for $40 { 189 1 2 QB 21. The Court of Appeal
(Lord Fisher, MR, Lopes and Rigby L, JJ.) affirmed that decision [I 895] 2 QB 21, in
judgments whose effect is stated by the headnote, wk.ich reads: “An action will lie against
a person wiio maliciously induces a master to discharge a servant from his employment if
injury ensues thereby to servant, though the discharge by the master does not constitute
breach of the contract of employment. An action will also lie for maliciously including a
person to abstain from entering into a contract to employ another, if injury ensues thereby
to that other.”
The House of Lords allowed the appeal of the Allen.

Lords Hersehell
1 can imagine no greater danger to the community that that a jury should be at liberty
to impose the penalty of paying damages for acts which are otherwise lawful, because
they choose, without any legal definition of the term, to say that they are malicious. ..(His
Lordship referred to the “fair-minded wan” test propounded by Wills, JJ... this suggested
test makes men’s responsibility for their actions depend on the fluctuating opinions of
the tribunal before whom the case may chance to come as to what a right minded man
ought or ought not to do in pursuing his own interests. . . It said that there seemed to be no good
reason why, if an action lay for maliciously inducing a breach of contract, it should not
equally lie for maliciously inducing a person not to enter into a contract. So far from
thinking it a small step from the one decision to the oiher, I think there is a chasm
between them... Even... if it can be said without abuse of language that the employers
were “intimidated and coerc•d” by the appellant, even if this be in a certain sense true, it 3
by no means follows that he committed a wrong or is under any legal liability for his act."
Everything depends on the nature of the representation or statement by which the
pressure was exercised. The law cannot regard the act differently because you choose to
call :: a threat or coercion ir.stead of an intimation or warning.

Lord Rlacough.ten
Even if I am wrong in my view of the evidence and the verdict, if the verdict amounts a
to a finding that Allen’s conduct was malicious in every sense of the word, and that he
procured the dismissal of Flood and Taylor, that is, that it was his act and conduct alone
which caused their dismissal, and if such a verdict were warranted by the evidence, I
should still be of opinion that judgment was wrongly entered for the respondents. I do not
think that there is any foundafion in good sense or in authority for the proposition that a
person who suffers loss by reason of another’ doing or not doing some act which that
other is entitled to do or to abstain from doing nt his own will rind plcnsurc, whatever his
real motive may be, has a remedy against a third person who, by persuasion or some

35
 Bradford Corporation v. Pickles is an authority which explains the other aspect, i.e., a
lawfiil act does not become unlawful merely because of an evil motive. Lord
Macnaughten said: “In such a case motives are immaterial. lt is the act, not the motive for
the act, that must be regarded. If the act apart from the motive gives rise merely to
damage without legal injury, the motive, however reprehensible it may be, will not
supply that element.”

In Town Area Committee v. Prabhu Dayal provides another example of the application of
the rule. Jusiice Hari S waroop opined: “The plaintiff can get compensation only if he
proves to have suffered injury because of an illegal act of the defendant and not
otherwise. Malice does not enter the scene at all. A legal act fhough motivated by malice,
will not make the actor liable to pay damages. . .merely because some officer has malice
against a citizen who has committed a wrong will riot render the action of the authority
invalid if it is otherwise in accordance with law. Mere malice cannot disentitle a person
from taking recourse. to law fo.r getting the wrong undone. Jt is, therefore, not necessary
to investigate whether the action was motivated by malice or not.”

E:xceptions to the rule

In the following exceptional cases the malice or e oil motive becomes ref evnnt in
determining liability under the law of torts:
I) When the act is otherwise unlawful and the wrongful intention can be gathered
from the circumstances of the case.
2) In the torts of deceit, conspiracy, malicious prosecution and injurious falsehood,
one of the essentials to be proved by the plaintiff is malice on the part of the
defendant.
3) In certain cases of defamation, when qualified privilege cr fair comment is
pleaded as a defence, motive becomes relevant. The defence of qualifiea privilege
is available if the publication was made in good faith. The presence of malice oi’
evil motive negatives good faith and tire defendant cannot avoid his liability by
the defence of qualified privilege in such a case.
4) Causing of personal discomfort by an unlawfial motive may turn an otherwise
) lawful act into nuisance.
5) Malice or evil motive may result in aggravation of damages.
. . .. . .. . .. . . -.. ......- - - -. . ... .. . .. ... - .

A!!en v. F/rod
(1898] AC 1 (HL)

The 'Sam Weller’ was under repair by the Glengall Iron Co. in the Regent Dock at
Millwall; the woodwork was being done by shipwright, including the plaintiffs Flood and
Taylor, members of the tiny 5hipwrights’ Provident Union and the ironwork was being
done by about forty boilermakers, belonging to the huge Independent Society of Boiler
Makers and Iron & Steel Ship Builders, whose London delegate was the defendant Allen.
The boilermakers discovered the £’lood and Taylor had been employed on ironwork by
anothcr compnny and wired for A I len, who came and talked to the boilerm‹ikers. He then

36
 told the company’s managerthat the boilmakers would go on strike unless Flood and
Taylor were dismissed that very day. It was assumed that all the contracts were
determinable at will.

Kennedy, J ruled that there was no evidence of conspiracy, or of intimidation or coercion

of breach of contract. i he jury found that Allen maliciously induced the Glengall Co. to
discharge Flood and Taylor from their employment, and also not to engage them again,
and that each plaintiff had suffered damage amounting to $20. After consideration,
Kennedy, I gave judgment for the plaintiffs for S40 [1895) 2 QB 21. The Court of Appeal
(Lord Fisher, MR, Lopes and Rigby L, JJ.) affirmed that decision [ 1895] 2 QB 2 l, in
judgments whose effect is stated by the headnote, which reads: “An action will lie against
a person who maliciously induces a master to discharge a servant from his employment if
injury ensues thereby to servant, though the discharge by the master does not constitute
breach of the contract of employment. An action will also lie for maliciously including a
person to abstain from entering into a contract to employ another, if injury ensues thereby
to that other.”
The House of Lords allowed the appeal of the Allen.

Lords Herschell
... I can imagine no greater danger to the community that that a jury should be at liberty
to impose the penalty of paying damages for acts which are otherwise lawful, because
they choose, without any legal definition of the term, to say that they are malicious...[His
Lordship referred to the “fair-minded man” test propounded by Wills, J].. . this suggested
test makes men’s responsibility for their actions depend on the fluctuating opinions of
the tribunal before whom the case may chance to come as to what a right minded man
ought or ought not to do in pursuing his own interests. . . It said that there seemed to be no good
reason why, if an action lay for maliciously inducing a breach of contract, it should not
equally lie for maliciously inducing a person not to enter into a contract. So far from
thinking it a small step from the one decision to the other, I think there is a chasm
between them... Even... if it can be said without abuse of language that the employers
were “intimidated and coerc•d” by the appellant, even if this be in a certain sense true, it
by no means follows that he committed a w‘rorig or is under any legal liability for his act."
Everything depends on the nature o* the representation or statement by which the
pressure was exercised. The law cannot regard the act differently because you choose to
call it a threat or coercion ir.stead of an intimation ur warning.

Lord ñ iacougfiten
Even if I am wrong in my view of the evidence and the verdict, if the verdict amounts
•o a finding that Allen’s conduct was malicious in every sense of the word, and that he
procured the dismissal of Flood and Taylor, that is, that it was his act and conduct alone
which caused their dismissal, and if such a verdict were warranted by the evidence, I
should still be of opinion that judgment was wrongly entered for the respondents. I do not
think that there is any foundation in good sense or in authority for the proposition that a
persor: who suffers loss by reason of another doing or not doing some act which that
other is entitled to do or to nbstnin from doing nt his own will rind plcnsurc, whatever his
rear motive may be, has a remedy against a third person who, by persuasion or some

37
 2) Naf/Judged by an objective standard
11 is clear that to Salmond, with his emphasis on mess rea, fault was a matter of personal
shortcoming. But the “fault” upon which liability may rest is social fault, which may but
does not necessarily coincide with personal immorality. The law finds “fault” in a failure
io live up to an ideal standard of conduct which may be beyond the know’ledge or
capacity of the individual. Conversely, it is worth remembering that one who is under no
legal liability for damage caused to another may yet think it right and proper to offer
some measure of compensation.

3) Pu nishment not main object of law of torts

Since he held that wrongful intention or culpable negligence was a condition of civil
liability in tort, it is natural that Salmond should have considered pecuniary
compensation, not as itself the ultimate object or a sufficient justification of legal
liability, but as means of punishment. But this was not the original conception of English
law today. The object of a civii inquiry into cause and consequence is to fix liability on
some responsible person and to give reparation for damage done, not to inflict,
punishment for du'y disregarded. So a series of decisions has emphasized that damages in
actions for personal injuries are compensatory: damages are to be compensate the victim,
not to reflect what the wrongdoer ought to pay. On the other hand, the House of Lords
has re-affirmed that punitive or exemplary damage.s, imposed to show a wrongdoer that
tort does not pay, have a limited but definite place in the law.
“) The main weakness of Salmond’s theory lies in the fact that compensation payable in
civil proceedings is often in no way commensurate either with the fault of the defendant
or with his financial resources. A moment’s inadvertence may result in personal injuries
for which damages amounting to thousands of pounds can be recovered.

CRITICAL ANALYSIS OF THE JUSTIFICATI ONS OF THE FA ULT PRINCIPLE

Since the law cf tort is a system of establishing liability it is obvious that it could never
have compensated all victims of misforninc. At the v'ery least there must be some causal
link between an activity of the defendant and the injury to the plaintiff. There is,
however, no logically compelling reason why the law should have chosen fault as the
determinant of this liability. 'that justification, tiien, can h• advanced for the application
of the fault principle?

The principle that a person shouid be calle‹i upon to pay *or damage causeJ by his fault
may be thought to have an affinity with the criminal fidw (which the law of tort as a
whole certainly did have much earlier in its history) in the s•nse that one of its purposes is
deterrence, the prevention of harmful conduct. It is certainly true that at least some parts
of the law dealing with premeditated conduct do help serve this purpose as well as that of
deciding whether or not redress for damage already suffered should be ordered:
newspaper editors, for example, take steps to avoid publication of defamatory matter. It
is, however, much more doubtful how far there is any effective deterrent force in those
part.s of the law relafing to accide‹ital injury, where I ialiil ity is leased ii hon negligence.
There arc a number o1‘ reasons for this, First, a generalized instruction to people to tnke
care, which is al! that the law gives, is of little practical use in guiding their behavio'ui‘ in

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 a given situation. Certain driving practices, for example driving at 60 m.p.h. down a
crowded shopping street, could be recognized as negligent by ordinary people without
any judicial assistance, but the majority or cases do not present such clear-cut issues and
the number of variable factors is great that one case is hardly even of persuasive value in
another.

The second reason why the deterrence argument is of limited validity relates to the
sources from which damages are in fact paid. If it were the case that tort damages were
paid out of the tortfeasor's own resources, it could hardly be denied that the threat of
legal liability would deter, but in practice damages are, far more ofien than not, paid by
an insurer rather than by the tortfeasor himself, which undoubtedly blunts the deterrent
edge. It is true that the defendant has had to pay in advance for his insurance cover and
that he may have to pay more in the future if the insurer considers that he or his
employees are more than ordinarily likely to cause fiirther accidents, but the link betwe•n
the fault and the obligation to find the money to pay for its consequences in the individual
case in nonetheless tenuous.

We may conclude, therefore, that the prospect of tort liability will have some influence
on conduct but that this influence is variable and limited. Even ii had a greater deterrent
effect it would not necessarily justify a fault-based system, for strict liability would,
presumably, have just as great an effect.

The other argument in favour of a tort system based on fault is still more difficult to
assess but cannot be dismissed out of hand on that basis. It is that the position of the
individual or corporate responsibility is a powerful and perhaps intuitive factor in
people's attitudes to accidents and that there is a deep-seated idea that those who are at
fault should be “held accordable” or should “pay” (even if in fact the source of that
payment is an insurance company). It may be objected that this view is essentially
punitive and confuses the functions of tort and criminal law, but public opinion does not
make such convenient distinctions.

in trying to seek these justifications of the fault system we have already exposed some of
its weaknesses. There are, however, other independent criticisms. First, the tort system
based upon fault is undoubtedly expensive to administer when compared with, say social
security. The Pearson Commission estimated that in lhe tort system the cost of the
operation was sbeut SP per cen of the value of c•ompensation paid through the system,
wh•r•as tf:e corresponding figur• for social security was about 11 percent. Secondly,
there is the problem of delay. The Pearson Commission concluded that delay was “. . .the
most important reason for dissatisfaction with the legal system. . . delay is sometimes
justifiable; but it can ofien aggravate pressure on the plaintiff to settle prematurely, . ”.
Thirdly, the unpredictability of the result of cases based upon fault liability may put
plaintiffs under pressure to settle their claims for amounts less than they would receive if
their claim went successfully to trial. The va:se majority of personal injury claims are
settled without trial most of them without even the issue of a writ.

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 1.5 AIMS AND OBJECTIVES OF LAW OF TORTS

AIMS OF LA W OF TORT

lt is not possible to assign any one aim to the law of tort, wfiich :›s not surprising when
considers that the subject disparate as A carelessly running B down in the street and C
calling D a thief; or E giving bad investment advice to F and G selling H’s car when he
has no authority to do so. At a very general level, however, we may say that tort is
concemed with the allocation or prevention of losses, which are bound to occur in our
sö ciety. lt is obvious that in any society of people living together numercus conflicts of
interes: will arise and that the actions of one man or group of men will from time to time
cause or threaten damage to others. This damage may take many forms - injury to the
person, damage to financial interests, injury to reputation and so on - and whenever a
person suffers damage he is inclined to look to the law for redress. But the granting of
redress by the law means that some person or group of persons will be required by the
law to do or refrain from doing something. This redress may take various from. In the
great majority of tort actions coming before the courts, the plaintiff is seeking monetary
compensation (damages) for the injury he has suffered and this fact strongly emphasizes
the function of tort in allocating or redistributing loss. In many cases, however, the
plaintiff is seeking an injiinction to prevent the occurrence of harm in the future and in
this area the “preventive” function of tort predominates. An injonction is the primaiy
remedy sought, for example, in cases of nuisance (wrongful interference with the
enjoyment of )and) and the so called “economic torts” such as interference with contract.
This is not because damages are unavailable (they clearly are) but because the defendant
is engaged in a continuing act and the damage suffered by the plaintiff may not yet have
occurred or may be suffered over a long period of time. Even when the claim is for
damages in respect of a completed wrong, the role of tort can only be squared in some
cases with the idea of compensation by giving that word an artificially extended meaning.
J“hus there are some situation.s in which the law imposes upon the defendant and
obligation to disgorge the profits he has made from his wrongdoing, whether or not the
) plaintiff has suffered any loss. In a few situations, where exemplary damages are
awarded, the idea of compensatio.o is dropped altGgether in favour of overt punishment
but much more frequently there are substantial awards of damages (normally
compensatory) for matters like injury to reputation and interference with liberty, which
one cannot even begin to quantify in mathematical terms. A couple of nights in the police
station may attraci iarger damages than a Ô roken arm, a libel in a national newspaper
more thar. the loss o* that arm.'In thes• cas•.s 'i:e !aw is performing a *omplex liinction
iHcorporating vindication, deterrence and appeasen ierit. Some tort actions (for example
some claims for trespass to land) ma y be brought mainly as a method of obtaining a
declaration of rights, notwithstanding the availability under modem procedure of a
specific remedy of that nature. Associated with this is what a Canadian judge, Linden, J
has called the “Ombudsman” function of tort, under which those responsible for losses
(typically corporations whose activities cause major disasters) may be called upon to
answer in puhlic for their activities - a private law version of the public inquiry. lt is
perhaps u;ikiiid tu c.all toit the ‘dtistbiii of the la w of obligations. but it is certa in ly the
great residuary category. No one theory explains the whole of the law.

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 Even where we are concerned with the material or financial loss the law clearly cannot
decree that whenever one suffers loss he should autom2tically be entitled to redress from
the author ö f that loss. There must be some reason in any given case for calling on the
la:v to provide the redress sought, to shift thee loss, otherwise it lies where it falis. In. fact,
the law cannot even go so far as to order every person whose action may be regarded as ,
morally culpable to make redress to those who suffer by it. The somewhat paradoxical
conclusion follows that the law of tort is as much about non-liability as it is about
liability.

It is the business then of the law of tort to determine when the law will and when it will
not grant redress for damage suffered or threatened. lt should be emphasized, however,
that the law of tort, like other branches of private law, is concerned with question of
liability. An action founded upon tort is an action between persons, either natural or
artificial (i.e., corporations), and the outcome can only be that one of them, the defendant,
is or is not liable to do or refrain from doing something at the suit of the other. If there is
no defendant whose liability can be established according to the principles of the law,
then the plaintiff is left without redress so far as the law of tort is concerned. It does not
follow, however, that he is without other forrr›s of redress.

OBJECTIVES OF LAW

Compensation: The most obvious objective of tort is to provide a channel for

compensating victims of injury and loss. Tort is the means whereby issues of liability can
be decided and compensation assessed and awarded.

Protection of interests: The law of tort protects a person’s interests in land and other
property, in his on her reputation, and in his on her bodily integrity. Various torts have
been developed for these purposes. For example, the tort of nuisance protects a person’s
use or enjoyment of land, the tort of defamation protects his or her reputation, and the tort
of negligence protects the breaches of more general duties owed to that person.

Deterrence: It has been suggested that the rules of tort have a deterrent effect,
encouraging people to take fewer risks and to conduct th•ir activities more carefully,
mindful of their possible effects on other people and their property. This effect is
re d .e.C t e d iii t h e g r e £t te r £t w :tr e f l e SS of the f1e e d fO r ri s k iTl £tf l t g e m e f1 t by m £tnu faC tu r
c r S,
employers, health providers and others which is encouraged by insurance companies. The
deterrent effect of tort is less obvious in relation to motoring though the incentives to be
more carefu) are present in the insurance premium rating system.
Retribution: An element of retribution may be present in the tort system. People who
have been harmed are sometimes anxious to have a day in court in order to see the
perpetrator of their suffering squirming under cross-examination. This is probable a more
important factor in 1 ibel actions and intentional tnrts than in personal injury claims which
are paid for by insurance companies. In any event, most cases are settled out of the court
and the only satisfaction to the plaintif* lies in the knowledge that the defendant will have

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 been caused considerable inconvenience and expense. The plaintiff also risks financial
loss if the case is decided against him or her and this is a factor to be weighed in the
balance when retribution is sought.

Vindication: Tort provides the means whereby a person who regards him or herself as

. innocent in a dispute can be vindicated by being declared publicly to be ‘in the right’ by a
court. However, again it must be noted that many cases never actually come before a
court and the opportunity for satisfaction does not arise.

Loss distribution: Tort is frequently recognized, rather simplistically, as a vehicle for

distributing losses suffered as a result of wrongful activities. In this context loss means
the cost of compensating for harm suffered. This means re-distribution of the cost from
the plaintiff who has been injured to the defendant, or in most cases the defendant's
insurance company. Ultimately, everyone paying insurance or buying goods at a higher
price to cover insurance payments will bear the cost. The process is not easily undertaken
and it involves considerable administrative expense which is reflected in the cost of the
tort system itself. There are also hidden problem attached to the system, such as
psychological difficulties for the plaintiffs in using lawyers and courts, and practical
difficulties such as the minding of claims which may mean that many who deserve
compensation never receive it. It has been suggested that there are other less expensive
and more efficient means that tort for dealing with such loss distribution.

Punishment of wrongful conduct: Although this is one of the main functions of

criminal law, it may also play a small part in the law of tort, as there is a certain symbolic
moral value in requiring the wrongdoer to pay the victim. However, this aspect has
become less valuable with the introduction of insurance.
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