Nature And Scope Of Lot

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1. Introduction to Study of 1. Introduction to Study of TortsTorts

Dr. C J RawandaleDr. C J Rawandale

+ Introduction

The word ‘tort’ is the French equivalent of the English word ‘wrong’ and Roman term ‘delict’.

It is derived from the Latin word ‘Tortum’ which means ‘twisted’ or ‘crooked’ act, i.e. a deviation from straight or right conduct.

04/09/23Dr. Chandrashekhar J Rawandale, Symbiosis Law School, NOIDA

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Jai Laxmi Salt Works (P) Ltd. V. State of Gujarat, (1994) 4 SCC 1

Sahai, J. observed:

“Truly speaking entire law of Torts is founded and structured on morality that no one has a right to injure or harm intentionally or even innocently. Therefore it would be primitive to class strictly or close finally the ever expanding and growing horizon of tortuous liability. Even for social development, orderly growth of the society and cultural refineness the liberal approach to tortuous liability by courts is more conducive”.

Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1 A.C. 32

Lord Bingham of Cornhill said:

“the overall object of tort law is to define cases in which the law may justly hold one party liable to compensate another”.


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The main aims of law of torts are:

1. to define individual’s rights and duties in the light of prevalent standards of reasonable conduct and public convenience.

2. compensation of victim/s or their dependent/s.


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Definition/s


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Section 2 (m) Limitation Act, 1963:

“Tort is a civil wrong which is not exclusively breach of contract or breach of trust”.

Salmond

“A tort 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 the breach of other merely equitable obligation”.


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Fraser

“A tort is an infringement of a right in rem of a private individual, giving a right of compensation at the suit of the injured party”.

Winfield

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


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+ What is liability?

Liability arises from breach of duty or a wrong.

It is something which a person must do or suffer on account of his failure to do which he ought to have done (duty).

A person has choice in fulfilling his duty whereas liability arises independent of one’s choice.


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+ Liability of a person

It can be classified into the following three types.

a. Intentional aggression upon other’s person or property

b. Negligent interference with other’s person or property

c. Unintended, non-negligent interference with person or property i.e. no fault liability or strict liability.


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+ ‘Person’

Salmond

“A person is any being whom the law regards as capable of rights and duties”.

Erray

“A person is an entity on which rights and duties may be attributed”.

These two definitions show that the concept of personality is linked with the conception of right.


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+ Kinds of Person

Persons in law are of two kinds.

I. Natural Person: - A natural person is a being on whom law attributes personality in accordance with reality and truth.

Holland defines a natural person as “such a human being as is recognized by the law as capable of rights and duties- in language of Roman law is having a status”.

II. Legal Person: - Legal persons are beings, real or imaginary, to whom the law attributes personality by way of fiction, when there is none in fact.

Salmond

“Legal person is any subject matter other than human beings to which law attributes personality”.


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+ Whether fetus in the Womb is a person?

Walker v. Great Northern Railway, (1890) 28 LR Ir. 69

The infant claimed 1.030 Pound as damages from the railway company. It was held that the infant could not maintain an action. (Ireland)

Congenial Disabilities (Civil Liability) Act, 1976 gives a right of Action to an infant if he is born disabled due to the fault of some other person. (United Kingdom)

The Unborn Victims of Violence, Act 2004 has granted personhood to a human foetus. (United States of America)


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India

Section 13 of the Transfer of Property Act, 1887 (Transfer for benefit of unborn person)

Section 113 of the Indian Succession Act (Bequest to person not in existence at testator’s death subject to prior bequest)


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Section 11 of the Indian Penal Code: -

The word “person” includes any Company or Association or body of persons, whether incorporated or not.

Section 11 of the IPC has not defined the term “person’ in a narrow and technical sense but has given a wider meaning to the term to include both a natural person (a human being, whether a man or a woman) and an artificial or juridical person.

Jabbar v. State, AIR 1966 All 550 (593)

The court held that a child in the womb whose body has sufficiently developed to have a separate identity of its own is a person.


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Kanta Mohanlal Kotecha v. The Branch Manager, United India Insurance Co. Ltd. (Reported in the Times of India Tuesday, March 6, 2007)

Is an unborn child a consumer entitled to insurance coverage?

A pregnant woman is a consumer. But can the foetus in the womb be considered a separate entity in respect of which an insurance claim can be made?

This unique and interesting case has recently been decided through a landmark judgment of the Maharashtra State Commission. The judgment was delivered on 6 November, 2006 by Justice B.B. Vagyani on behalf of the bench presided over by him along with members P.N. Kashalkar and Swati Lele.


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According to science, during the second trimester of pregnancy- from the 13th to the 27th week- the embryo turns into a foetus and attains a recognizable human form.

The scientific terminology “human foetus” implies that a human is present where the organism is alive and growing and possessing a unique genetic code. Hence an unborn child in the womb is living is entitled to personhood.

The Maharashtra State Commission decreed that an unborn foetus should be considered as a separate entity with respect to insurance claims.


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Distinction between Torts & Crime


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1. Tort is a less serious wrong whereas Crime is more serious wrong.

2. To make one liable under law of torts, one must prove fault, negligence or wrongful intent on the part of the defendant. Generally speaking, intention does not form an essential element to make one liable under Law of Torts.

In case of Crime one must prove both act as well as intention.

Exception: Doctrine of Strict Liability


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3. Tort being a private wrong, the injured party himself has to file a suit as a plaintiff.

On the other hand, the criminal proceedings against the wrongdoer are not brought by the injured party but by the State. In case of the crime, even though the immediate victim is an individual, the criminal wrong is considered to be a public wrong i.e. a wrong against the State.

Exception: Section 497 Adultery; Section 499 IPC Defamation

4. In case of tort, the plaintiff may agree to compromise with the tort-feasor and withdraw the suit filed by him.

In case of Crime, in general the compounding of offence is considered to be unlawful. Except in certain exceptional cases, the law does not permit a settlement between the wrongdoer and the aggrieved party [Section 320 Cr.P.C gives a list of compoundable offences and the persons by whom particular offences are compoundable].


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5. In case of Tort, the object of law is payment of compensation i.e. to make good the loss suffered by him.

Exception: Under Section 57 Cr.P.C. a judgment debtor may be arrested and imprisoned in execution of a decree. Such a person is released even before the expiration of fixed term, if the decree is satisfied.

In case of Crime, the object of law is punishment of the offender.

Exception: Section 357 Cr.P.C. 1973 even a Criminal Court while passing judgment may order that the injured party may be paid compensation out of the fine imposed.

England

Under the Powers of Criminal Courts Act 1973, compensation payments are made. Further the Criminal Injuries Compensation Scheme 1964 makes ex gratia payments to victims of violent crime.


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In Re: Destruction of Public and Private Properties v State of Andhra Pradesh, 2009 Indlaw SC 757

While assessing the recommendations of the committee headed by Mr. F S Nariman, the Supreme Court identified the relationship between Torts and Crimes as follows:

"There is a connection between tort and crime - the purpose of the criminal law is to protect the public interest and punish wrongdoers, the purpose of tort-law is to vindicate the rights of the individual and compensate the victim for loss, injury or damage suffered by him: however - the distinction in purpose between criminal law and the law of tort is not entirely crystal-clear, and it has been developed from case-to-case. The availability of exemplary damages in certain torts (for instance) suggest an overtly punitive function -but one thing is clear: tort and criminal law have always shared a deterrent function in relation to wrongdoing.”


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+ Felonious Tort

Sometimes, the same set of facts may constitute both a tort and a crime. Such wrongs are called as “Felonious Torts”.

The civil and criminal remedies in such a case are not alternative but are concurrent. E.g. Defamation, Negligence, Nuisance etc.


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Distinction Between Tort & Contract


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1. In case of tort, the wrong committed is violation of right in rem whereas in case of contract it is violation of right in personam.

2. In case of Torts, the duty is primarily fixed by law whereas in Contract, it is fixed by the parties to the contract with their free consent.

In a contract, the duty is based on the privity of contract and each party owes duty only to the other contracting parties. Duties imposed by law under law of torts are not towards any specific individual or individuals but they are towards the world at large.

3. Damages in case of contract may be liquidated or unliquidated. In Torts, the damages are always unliquidated.


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There may be certain cases when the same fact results in a breach of contract as well as a tort.

Illustration:

Due to negligence of a driver, a railway passenger is injured, the railway authorities are liable for the breach of the contract of safe carriage, and there is also tort of negligence which results in damage to the passenger.

If I leave my horse with my neighbour for one week and go out and the neighbour allows the horse to die of starvation, there is breach of contract inasmuch as the bailee has failed to exercise due care in the matter, and the bailee has also committed tort of negligence.

One must remember that the plaintiff cannot claim the damages twice over. He has a choice either to sue for the breach of contract or for the commission of tort.


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+ Doctrine of privity of contract fallacy & the Exception

Winterbottom v. Wright, (1842) 10 M & W. 109

When A’s wrongful act results in the breach of a contract which he had entered into with B and also the commission of a tort against C, it was thought that just like B, C has also to show privity of contract before he can bring an action for tort.

This rule lost its sanctity in 1932.


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Donoghue v. Stevenson, (1932) A.C. 562.

A went to a restaurant with a woman friend and bought one bottle of ginger beer manufactured by the defendants. The woman consumed part of the contents but when the remainder was poured into the glass, she observed the decomposed body of a snail in it. The ginger beer bottle, being made of dark opaque glass and sealed with metal cap, the presence of snail could not have been observed earlier.

The woman brought n action against the manufacturer for negligence and alleged that by taking a part of the contaminated drink, she had contracted serious illness.


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The House of Lords held that the manufacturer owed her a duty to take care that the bottle did not contain noxious matter injurious to health.

Referring to the liability of the manufacturer of food articles Lord Macmillan observed: “The duty, in my opinion, he owes to those whom he intends to consume his product”.


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Klaus Mittelbachert v. East India Hotels Ltd. AIR 1997 Del 201.

There was a contract between Lufthansa, a German Airlines and Hotel Oberoi Inter-Continental of Delhi for the stay of the crew of Lufthansa as guests in the hotel. The plaintiff Klaus Mittelbachert, a co-pilot in Lufthansa stayed in the hotel for a few days. During his stay, as a plaintiff took a dive in a swimming pool in the hotel, due to defective design of the swimming pool, his head hit the bottom of the pool and he received serious head injuries. As a consequence of that, he was paralysed and continued in agony for 13 years before he died.

In an action for damages by the plaintiff, one of the defences pleaded was that he was a stranger to contract, as the contract for stay was made between the employer, i.e. Lufthansa and the hotel. The plea was rejected.


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It was held that he could sue under contract as a beneficiary of the contract. Moreover, for an action under Law of Torts, for compensation the plea of stranger to contract was irrelevant.

Due to hazardous nature of the premises, the rule was absolute liability was applied and the defendants were required to pay exemplary damages amounting to 50 lac rupees.


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Essentials of a Tort


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To constitute a tort, it is essential that the following two conditions are satisfied;

1. There must be some act or omission on the part of the defendant, and

2. The act or omission should result in legal damage (injuria), i.e. violation of a legal right vested in the plaintiff.


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+ 1. 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.

Illustration:

A commits the act of trespass or publishes a statement defaming another person, or wrongfully detains another person; he can be made liable for trespass, defamation or false imprisonment, as the case may be.

One must note 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.


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Glasgow Corporation v. Taylor, (1922) 1 A.C. 44

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 the poisonous tree and dies, the Corporation would be liable for such omission.

Municipal Corporation of Delhi v. Subhagawanti, AIR 1966 SC 1750

Municipal Corporation, having control of a clock tower in the heart of the city does not keep it in proper repairs and the falling of the same results in the death of a number of persons, the Corporation would be liable for its omission to take care in the matter.


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+ Intention & Negligence

Intention:

Intention is an internal fact, something which passes in the mind and direct evidence of which is not available.

An act is intentional as to its consequences if the person concerned has the knowledge that they would result and also the desire that they should result.


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Negligence:

Negligence constitutes an independent basis of tort’s liability. It means which creates a risk of causing damage, rather than the state of mind.

According to Winfield, “negligence as a tort is the breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff”.


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Heaven v. Pender, (1883) 11 QBD 503

Negligence defined as an “actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill by which neglect the plaintiff has suffered injury to his person or property.”

Union of India v. Hindustan Leaver Ltd. AIR 1975 P&H 259

Negligence is a breach of duty to take care remitting in damage to one whether to person or property.


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+ 2. 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, unless there has been violation of a legal right, there can be no action under law of torts.

This makes it necessary to discuss the following two maxims:

a. Injuria Sine Damno

b. Damnum Sine Injuria


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+ a. Injuria Sine Damnum

Injuria means infringement of a right conferred by law on the plaintiff or an unauthorised interference, howsoever trivial, with the plaintiff’s right.

Damnum means substantial harm, loss or damage in respect of money, comfort, health or the like.

Sine means without.

Injuria Sine Damno means violation of a legal right without causing any harm, loss or damage to the plaintiff.


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There are two kinds of torts:

1. Those torts which are actionable per se, i.e. actionable without the proof of any damage or loss.

Illustration:

Trespass to land is actionable even though no damage has been caused as a result of the trespass;

2. The torts which are actionable only on the proof of some damage caused by an act.


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Illustration

If a claimant is wrongfully detained against his will, he will have a claim for substantial damages for wrongful imprisonment even if no consequential loss was suffered upon the detention.

If a tenant makes improvements to the property leased without the right to do so, the tenant commits the tort of waste and is liable for damages even though the premises may be improved and rendered more valuable by the alterations.


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Ashby v. White, (1703) 2 Lord Raym 938; (1703) 1 Sm. L.C. 13th ed., 253

The plaintiff was a qualified voter at a Parliamentary election. The defendant, a returning officer wrongfully refused to take plaintiff’s vote. The Plaintiff suffered no damage as the candidate for whom he wanted to vote won the election in spite of that. The defendant was held liable.


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Bhim Singh v. State of J. & K. AIR 1986 SC 494

The petitioner, an M.L.A. of Jammu & Kashmir, was wrongfully detained by the police while he was going to attend the Assembly session. Further he was not produced before the Magistrate within the requisite period. As a consequence of this, he was deprived of his constitutional right to attend the Assembly session. There was also violation of fundamental right to personal liberty guaranteed 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, exemplary damages amounting to Rs. 50,000 were awarded to him.


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Sain Das v. Ujagar Singh, AIR 1940 Lah 21

It was observed that though in the case of 'Injuria sine Damnum', nominal damages are usually awarded and this principle is applicable to cases of trespass of immoveable property, when there has been unjustifiable intrusion on property in possession of another, the rule cannot be extended to every case of attachment of property irrespective of the circumstances.


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+ b. Damno Sine Injuria

It means damage which is not coupled with an unauthorised interference with the plaintiff’s lawful right.

Gloucester Grammar School Case (1410) Y.B. Hill 11 Hen, 4 of 47, P.21, 36

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. Thus claimed the compensation for the loss caused. It was held that the plaintiffs had no remedy for the loss thus suffered by them.


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Mogul Steamship Co. v. McGregor Gow and Co. (1893) A.C. 25

A number of steamship companies combined together and drove the plaintiff company out of the tea-carrying trade by offering reduced freight. The House of Lords held that the plaintiff had no cause of action as the defendants had by lawful means acted to protect and extend their trade and increase their profits.


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Ushaben v. Bhagyalaxmi Chitra Mandir, AIR 1978 Guj. 13

The plaintiff contended that the film “Jai Santoshi Maa” hurt the religious feelings of the plaintiff in so far as Goddesses Saraswati, Laxmi, and Parvati were depicted as jealous and were ridiculed and thus sued for a permanent injunction against the defendants to restrain them from exhibiting the film.

It was observed that hurt to religious feelings had not been recognized as a legal wrong. Moreover, no person has a legal right to enforce his religious views on another or to restrain another from doing a lawful act, merely because it did not fit in with the tenets of his particular religion.


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J. M. Desai v. Roshan Kumar, AIR 1976 SC 578

The Supreme Court held that proprietor of a cinema theatre cannot challenge under Art. 226 of the Constitution of India the 'No objection certificate' granted by the District Magistrate in favour of a rival in the trade on the ground that it will lead to financial loss.


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Mithilesh Garg v. Union of India, AIR 1992 SC 443

The Supreme Court declared that an existing stage carriage operator is not the person aggrieved and cannot challenge the grant of new permit on the route under the new Motor Vehicles Act, 1988.


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Om Saran v Sub-Divisional Magistrate, Chandausi, Moradabad and Another, 1994 Indlaw ALL 301

Petitioner, a licence holder of petty diesel dealer in village Majhole District Moradabad, has filed this writ petition challenging the advertisement for grant of another licence published in a newspaper, for the same village. His grievances that the demand of diesel is not such so as to require grant of additional licence for the sale of diesel, and if such a licence is granted it will cripple his business.

The Court held that ‘The letter is from the Government to all the District Magistrates of this State, whereby guidelines for granting licence of petty diesel dealer, have been laid down. The petitioner cannot enforce those guidelines. It is a matter between the Government and its District Magistrates. This letter does not confer any right on the petitioner so as to challenge the grant of new licence to other person.’


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Messrs Northern Plastics Limited v Hindustan Photo Films Manufacturing Co. Limited, 1997 Indlaw SC 1018

The appellant's claimed that the setting up of a rival cinema house in the town will adversely affect his monopolistic commercial interest, causing pecuniary harm and loss of business from competition and thus challenged the grant o the no-objection certificate issued to the respondent.

The Supreme Court held that ‘such harm or loss is not wrongful in the eye of law, because it does not result in injury to a legal right or a legally protected interest, the business competition causing it being a lawful activity. Juridically, harm of this description is called ‘Damnum sine Injuria’’.

It further held that ‘The reason why the law suffers a person knowingly to inflict harm of this description on another, without holding him accountable for it, is that such harm done to an individual is a gain to society at large’.


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N. Balasubramaniam and Others v Government of Tamil Nadu and Others, 2007 Indlaw MAD 1323

As Respondent is permitted to set up her retain outlet within one-kilometer radius of the appellant's outlet, he complained that his business interest would be adversely affected.

The Madras High Court held that the appellant has no locus standi at all to complain against the setting up of a rival retail outlet by the fourth respondent, near his place of business, on the ground that would affect his business interest, inasmuch as the damage, if any, suffered thereby was Damnum sine Injuria-damage without infringement of legal right. It further held that ‘this will only result in promoting competition among the traders, which is good for the consumers. Merely because some of the customers may switch over to the rival retail outlet does not mean that public interest will suffer rather, in our opinion, it will benefit the consumers because, when there is competition, the businessmen are compelled to provide better quality products at reasonable rates.’


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+ Ubi Jus Ibi Remedium

The law of torts is said to be a development of the maxim ‘ubi jus ibi remedium’.

It means that where there is a right there is remedy.

In other words, whenever the right is violated the person whose right has been infringed has remedy against the person who has violated it.


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A tort is a civil wrong for which the remedy is an action for unliquidated damage, thus the main remedy for tort is an action for damage.

This principle explains about the right of an injured person to damage which brings such wrongful act within the category of torts.

It should however be noted that the maxim does not mean that there is legal remedy for every moral or politic wrong.


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+ Malfeasance, Misfeasance, and Non-Feasance

Malfeasance:

The term ‘malfeasance’ applies to the commission of an unlawful act. It is generally applicable to those unlawful acts, such as trespass, which are actionable per se and do not require proof of intention or motive.

The term ‘misfeasance’ is applicable to improper performance of some lawful act, for example when there is negligence.


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Non-feasance:

The term ‘non-feasance’ applies to the omission to perform some act when there is an obligation to perform it.

Misfeasance:

Non-feasance of a gratuitous undertaking does to impose liability; but misfeasance does. When there is a duty towards the individual injured, to do the act by the omission whereof the injury is caused, the non-feasance of such an act gives rise to a cause of action to the same extent as a misfeasance of an act of which there is duty to perform in a particular manner.


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The term malfeasance, misfeasance and non-feasance are of very wide import but they cannot cover a case of breach of public duty which is not actuated with malice or bad faith such a defective planning and construction of a ‘bandh’.


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Questions, If any…


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Thank YOU!


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Nature And Scope Of Lot

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