Law of Torts*
* This PPT is for reference purpose only. Kindly refer to books for detailed
understanding.
INTRODUCTION
 The word tort originates from the French language. It is equivalent to the English word
“wrong”. It is derived from the Medieval Latin word “tortum” which means “wrong” or
“injury” .It is a breach of duty which amounts to a civil wrong.
 A tort arises when a person’s duty towards others is affected, an individual who commits a
tort is called a tortfeasor, or a wrongdoer. And where there are multiple individuals involved,
then they are called joint tortfeasors. Their wrongdoing is called as a tortious act and they
can be sued jointly or individually. The main aim of the Law of Torts is the compensation of
victims.
 A tort is an act or omission that gives rise to injury or harm to another and amounts
to a civil wrong for which courts impose liability. In the context of torts,
"injury" describes the invasion of any legal right, whereas "harm" describes a loss
or detriment in fact that an individual suffers.
 The primary aims of tort law are to provide relief to injured parties for harms caused
by others, to impose liability on parties responsible for the harm, and to deter others
from committing harmful acts. Torts can shift the burden of loss from the injured
party to the party who is at fault or better suited to bear the burden of the loss.
Typically, a party seeking redress through tort law will ask for damages in the form
of monetary compensation.
 The law of Tort in India is developed and evolved from the law of Torts in UK.
Most popularly known as “judge made law” this law does not come from a statute
and is not codified
 in simple terms, tort can be defined as an act conducted by one person towards another
person which causes harm to the other person. This act of wrongdoing causes either
injury to the other person or harm. By injury we mean - invasion of a legal right of a
person and by harm it is meant - causation of any loss or detriment to person which
leads to his suffering. The intensity of Tort is further determined by whether the act was
intentionally caused in order to inflict act on the other person or weather the person
acted in a negligent manner which eventually caused harm to the other person.
 The cases of Tort in India are tried in Civil courts and the relief includes damages by
way of monetary compensation or an order for injunction or restitution.
OBJECTIVES
 To determine rights between the parties to a dispute.
 To prevent the continuation or repetition of harm i.e. by giving orders of
injunction.
 To protect certain rights of every individual recognized by law i.e. a person’s
reputation.
 To restore one’s property to its rightful owner i.e. where the property is
wrongfully taken away from its rightful owner.
Essential Elements of Torts
 The essential elements of torts are as follows:
 Wrongful Act- When a person is under some legal duty, and he fails to perform it causing some loss to
the victim, the person has committed a wrongful act. A wrongful act invades the following private
rights of the victim- Good Reputation, Bodily safety and Legal rights.
 Legal Damage- There is a difference between legal damage and actual damage. In torts, injuria sine
damno is actionable but damnum sine injuria isn’t. Injuria sine damno means an infringement of a
legal right even if there is no actual damage. Damnum sine injuria means damage without injury.
In Ashby v. White, the plaintiff was prevented from exercising her right to vote. It was held that the
plaintiff was entitled to damages. In the Gloucester Grammar School Case, a rival school was set up
near that of the plaintiff. It was held that the plaintiff could not get compensation as there was no legal
injury.
 Legal Remedy- The damage in tort should be actionable. There cannot be a tort if there is no legal
Is it Law of tort or Law of Torts?
 Winfield theory of tort: According to the law of “tort” theory, all the unjustifiable harm
for which there is no excuse will be treated as a tort. The Chief supporter of this theory in
Winfield, according to him if any injury is done to the neighbor he can sue the other person
no matter if the wrong happened has a particular name or not. The person held liable
should prove lawful justification. Indian judiciary supported Winfield’s theory in the case
of M.C Mehta v. Union of India.
 Salmond theory of torts: Salmond was the supporter of the law of “torts”, according to
him the liability under this law arises only when the wrong is covered under one or other
nominate torts. This theory is also known as Pigeon hole theory. In order to succeed under
this theory, the plaintiff should place the wrong under the already present torts.
TYPES OF TORTS
 Torts can be broadly divided into three category on the wrong-doing caused, these are as under -
1. Intentional Torts - A tort caused by an intentional wrongful act by the other person/ group of persons (i.e
the defendant) is called as an Intentional Tort. These include acts such as Assault, Battery, Trespass, false
imprisonment, slander and libel.
2. Negligent Torts - a wrongful act caused by the negligence of another person/ group of persons is called
Negligent Torts. These include incidents which usually occur because a person has failed to behave with the
level of care that a person with an ordinary prudence would have done. It is essential to show here that the
there was no additional duty of care required, a person failed to was negligent in exercising the reasonable
level of care that one with an ordinary prudence would have. Such torts include negligent harm to the body
or the property of a person. For eg - if a person has negligently disobeyed the traffic rules and caused an
accident, he is liable under negligent torts.
 3. Torts under Strict Liability - In the torts committed under this category a
person is considered to be liable irrespective of his intention to commit the wrongdoing. These Torts are of such a strict nature, that the courts deem it fit to rule out
the need for proving intention here. Usually such torts include acts of production
of defective goods and medicines which cause a serious injury to the life of the
consumer. In such cases, it is not only the manufacturer who is held liable but all
those involved in the supply chain of the faulty product as considered to be liable
until it is established who was indeed at fault.
INTENTIONAL TORT
 In order to commit an intentional tort, some action must be done with a purpose i.e there must be an intention to
commit an act. For the welfare of the society, it is generally assumed that no one should attack the other person
intentionally. For example, if you hit a person with an iron rod on the head, there was an intention to cause injury
to that person in a particular way.
 Intentional tort includes the following:
Battery:
 When some force is applied physically to the body of another person in an offensive manner which causes some
harm is called battery. Battery constitutes the offensive touching which is not consented by the other party. Even if
the person did not intend to injure the other person but if he has the knowledge that his act could harm someone in
any way then also the battery is constituted. The personal liberty of the person is interfered in any way with the
intention to cause harm. Common examples of the battery include hitting a person with a stick, punching someone
on the face.
 Elements of battery include:
 There must be an intent to use some physical force.
 There must be actual physical contact with the body of another person.
 There must be some harm.
2. Assault:
 When the act of one person creates an apprehension in the mind of another person that such act is likely
or intended to cause such harm. It could range from pointing a gun at a person to verbally threatening a
person. Apprehension should not be confused with fear. Apprehension is when a person is aware that the
injury is imminent. There is an assault if a person threatens to shoot another while pointing a gun
another him, even if the victim later discovers that the gun was not loaded. Unlike the battery, there is
no physical contact in an assault. For example, if a person makes a flinch but does not actually punch
the person then there is an assault.
 Essential elements of assault are:
 There must be an apprehension of harm.
 There must be an intention to use force.
Difference between Assault and Battery
S.No
Assault
Battery
1.
The purpose here is to
threaten.
The purpose is to cause
harm.
2.
There is no physical
contact, only such
apprehension.
Physical contact is
mandatory.
3.
Hitting with the stick is
Pointing a stick towards a battery as there is a
person is assault.
physical contact
between the two people.
3. False imprisonment:
 It is the unlawful confinement of the person without his will. It is not necessary that
person should be put behind the bars, a mere impossibility of escape against the will
of the person from a certain area is enough to constitute a tort of false
imprisonment. It includes the use of physical force(actual expression of force is not
always necessary), a physical barrier like a locked room, invalid use of legal
authority. False arrest is the part of false imprisonment which includes detaining of
the person by the police without lawful authority.
Essential elements are :
 There must be an intention
 Period of confinement
 Knowledge of the plaintiff
 Place of confinement
Malicious prosecution falls within the category of false imprisonment. It not only includes malicious
proceedings and arrests instituted falsely but also includes malicious search, malicious bankruptcy and
liquidation proceedings. In order to prove malicious prosecution, these essentials should be kept in mind:
 There must be malice towards the plaintiff
 The absence of reasonable cause
 Prosecution by the defendant
 Damage was suffered by the plaintiff as a result of the prosecution
 4. Trespass:
 It is the intentional, unreasonable invasion of the property, land, person or goods. The unreasonable
interference can cause harassment or harm to the other person, no matter how slight it is. The legal right
of the owner of the property is infringed because he is deprived of his right to enjoy the benefit of the
property by the misappropriation or exploitation of his right. Types of trespass are:
 Trespass to person: When a wrong is done to the individual and in some way personal liberty and
interference is caused to the body of the person. It is an invasion of person’s right to freedom. The
dignity of the person is protected by it, even if no physical injury is caused. For example, taking the
fingerprints of a person forcefully. It consists of following torts: assault, battery, and false imprisonment.
 Trespass to land: Unlawful interference to the land of some other person is the trespass to land.
Land here includes not only the building and the surface but also the subsoil and airspace. Even if
there is no damage done to the property but if the person enter the land of another person without
his permission, then it is trespass. If a delivery boy was supposed to deliver the goods at the front
door of the house but seeing the house open he enters one of the rooms to which he was not entitled,
then he has done trespass to land. A person will not be liable for trespass if he enters the premises or
land to save the life of another person. For example, if a person sees in a baby trapped in a fire in a
house, then if he enters the house to save him he will not be guilty of trespass. The owner of the
property owes some duty to the guest. If any guest is injured on the property in possession of the
owner then the owner can be held liable.
5. Defamation:
 It is an injury or harm caused to the reputation, goodwill or character of the person. There are
two types of defamation in the form of Libel and Slander. Libel is the publication of a false
statement which is likely to cause harm to the reputation of another person. Publication means it
should come into the notice of the third party. It must be in printed form for example writings,
pictures, cartoons, statues etc. When the false spoken statement results in lowering the
reputation of another person then it is slander. Sometimes the statement may appear to be
innocent but there might be some hidden meaning to it. In order to file a suit for defamation, the
plaintiff must prove such hidden meaning. Defamation in the law of tort deals mainly with libel.
To prove that the statement was libelous, it must be
 False
 Written
 Defamatory
 Published
 If the defamation is proved when a suit is instituted, damages can be given to the plaintiff as compensation and in
some cases, injunction can also be granted to restrain certain publication because of which a person has an
apprehension of being defamed.
 Some of the defenses to defamation are:
 A substantially true report was published.
 When the case has been decided by the court it is not defamatory to express any opinion on the merit of the case in
good faith.
 Any truth which is published for the public interest.
Tort-based on Negligence
 Negligence is the absence of reasonable care which is imposed on all persons so as not to place the other
person at foreseeable risk of harm through his conduct. It is the failure to act is a particular way by taking
into account the apprehended injury that could be sustained due to carelessness to one party.
Elements of negligence are:
 Duty: There must be some duty or an obligation which one person owes to another. If the defendant fails
to fulfill the duty which he owes to the plaintiff in the eyes of law then he can be held liable. So at first, it
should be assessed whether the defendant owes any duty of care to the plaintiff or not. Sometimes the
relationship between the plaintiff and defendant creates a legal duty or obligation to act in a certain
manner. For instance, the doctor owes a duty of care to the plaintiff i.e to treat the patient in an
appropriate manner. If the doctor while treating the patient left a ring in his abdomen, then he can be said
to be negligent in giving appropriate medical treatment. The doctor owed a duty of care towards his
patient which he failed to do so.
 Breach: once it has been assessed that defendant owes a duty of care to the plaintiff, it should be
further established that there was some breach of duty i.e one person failed to exercise a take.
“Amount of care” means the care which a reasonable person would have taken in those circumstances.
Whether there was any breach of duty is both a subjective and objective test. The defendant can be
said to be negligent if he knew that his action would affect the other person if he does not act in a
particular way, for eg. if the owner of the dog knows that his dog is of ferocious nature then he should
put some warning on the gate like “Beware of dog” or “Enter at your own risk”. If he fails to do so
then he can be held negligent in taking such care.
 Causation (cause in fact): This element aims at establishing that there should be some negligence on
the part of the defendant which caused such injury or harm to the plaintiff. The plaintiff should prove
that the loss suffered was caused by the defendant. The (but for) rule is used in proving the causation
i.e whether the injury suffered would have happened but for the action of the target of your suit.
 Damages: The last element of negligence is damages. The person who had
sustained injury should be compensated for such harm. The test of (reasonable
person) is important to decide if the plaintiff is entitled to compensation or not.
The compensation given to the plaintiff should be capable of putting him back in
the position in which he was before the incident took place. For eg., if the car
driver hit the motorcyclist due to which he sustained injuries and had to miss
work, the compensation that the car driver could be made to pay should bear his
medical expenses, lost earnings and the pain and suffering endured by him.
Defenses:
i) Volenti non fit injuria: If a person acts voluntarily and is aware of the risk associated, he cannot
recover damages if he suffers harm. This is the voluntary acceptance of risk. The person should be free
to make a choice when the employer forces an employee to take the risk of which he is aware but is
not willing to undertake. Here, the defense cannot be used by the employer if an injury is sustained by
the employee because the employer had forced the employee to undertake the risk against his will.
 Essential of Volenti non fit injuria:
 There was knowledge of risk by the plaintiff
 He voluntarily undertook such risk
ii) Contributory negligence: When the damage which the plaintiff has suffered was partly due to
his fault and partly due to the fault of the defendant, this constitutes contributory negligence. In
order to prove contributory negligence, it must be proved that the plaintiff failed to take reasonable
care for his safety. In a collision between two cars, the defendant was driving negligently at high
speed. It was discovered that the plaintiff was not wearing seat belt due to which he sustained the
higher amount of injuries than if he had been wearing a seatbelt. The plaintiff failed to take
reasonable care which was expected on his part. So he is liable for contributory negligence.
iii) Ex turpi causa: it means no defense or legal remedy can be initiated if the cause of action
which arose was due to the illegal conduct of the plaintiff i.e no action can be found on a bad cause.
 For example, Mr. Anil took a lift in a car which he knows was stolen by the other person. Later,
the car met with an accident, Mr. Anil cannot initiate an action against the other party under this
principle.
Strict liability under law of tort
 It is the type of tort in which the defendant is held responsible for the injuries sustained.
The plaintiff need not prove whether the tort occurred or not, he can sue the defendant for
defective action. Under certain circumstances, if any wrong happens then the perpetrator
can be held responsible for such an act when the activities are known to be fundamentally
dangerous. This rule is applicable in India as much as in England.
 For example, ‘X’ stores flammable propane tank in a factory near to ‘Y’ house. As the
consequence of mischief of rat the tank was set on fire because of which Y’s property was
damaged. Although there was no fault of ‘X’, still ‘X’ is liable as ‘Y’ suffered because of
him.
 In Ryland v. Fletcher, the defendants employed independent contractors to construct a
reservoir on their land for providing water to his mill. The contractor failed to seal the
unused mines which he found while digging. When the water was filled in the reservoir, it
burst through the shafts wand and water flooded in plaintiff’s mines. Although the
defendant has no idea about the shaft and was not negligent. The incident took place
because of the fault of the contractor still the defendant was held liable.
following torts must be present to constitute the tort of strict liability:
 Some dangerous thing must have been brought by a person on his land.
 The thing kept on land must have escaped.
 Non-natural use of land.
 Exception to this rule:
 i) Plaintiff’s own fault: If some intrusion by the plaintiff in defendant’s property causes
some harm to him then the defendant cannot be held liable. In Ponting v Noakes, the
plaintiff’s horse ate some poisonous leaves from the defendant’s tree after which he died.
The defendant was not held liable as it was the wrongful intrusion by plaintiff’s horse. No
damage would have been done if the horse would not have entered defendant’s property.
 ii) Act of god: Circumstances which are not under the control of human beings or which
are not foreseeable fall under this rule. The defendant cannot be held liable if some natural
event leads to the escape of dangerous thing.
 iii) Consent of the plaintiff: If the plaintiff has consented to the accumulation of some
dangerous thing on plaintiff’s land and the source of danger was for the common benefit of
both the plaintiff and defendant then defendant cannot be held liable for such escape.
 iv) Act of third party: If the act of third person causes some harm to the plaintiff over which the
defendant has no control or the person is not defendant’s servant then he cannot be held liable
under this rule. If the act of third party is foreseeable then due care must be taken by the
defendant.
 v) Statutory Authority: Act done under the authority of statue is a defense provided there is no
negligence.
 Another liability which arose after the case of M.C Mehta v. Union of India was that of Absolute
liability. According to this liability, if a person is engaged in some dangerous activity which is the
source of his commercial gain then he owes some duty of care to the society if the escape of dangerous
thing could cause catastrophic damage. He cannot take the exception of act of god or third party.
 In M.C Mehta v. Union of India, oleum gas leaked from one of the unit of Shriram Foods fertilizer
Industry in the city Delhi. Due to the leakage of this gas, many people were affected. If the rule of strict
liability would have been applied in this situation then it would have been easy for the defendant to
escape by saying that the damage was due the act of stranger. The Supreme Court was of the opinion
that they do not have to follow the 19th century rule of English Law and could evolve a new rule
suitable to the economic and social conditions existing in India. The court in this case by applying the
rule of absolute liability held the defendant liable. As per the directions of the court, the organisations
who filed the case could claim the compensation on behalf of the victims
Remedies
 Damages: To restore the plaintiff in the position he was if the tort would not have been
committed, damages are awarded to the claimant. The injury caused includes not only
physical injury but also emotional, economic or reputational injury and many other.
Damages payable to the plaintiff are made in terms of money. Damages depend upon the
cause, fact and the circumstances of the case. Damages can be awarded more than that
claimed by the defendant.
 Injunction: it is granted to refrain the party from further continuing an act.
Sometimes damages are not enough to compensate the party, the act which is
causing such harm needs to be permanently to be stopped. It is granted at the
discretion of the court.