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Law of Torts in India

July 13, 2018
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law of torts

In this article, Krati Bhardwaj of New Law College, Bharti Vidyapeeth, discusses Law of Torts in India. 

Introduction

One moment you are walking on the road and the other you slip into the pit left open by the Municipal Corporation. Without having a glance around, you stand up quickly to cover up the embarrassment you have faced. But what can you do? This happens every now and then especially in a country like India. Is there anyone who could be blamed for this? I have sustained injuries so I should be more careful from the next time. Isn’t it? No, there was a responsibility of Municipality in this situation. They were negligent in fulfilling their duty. This is what law of torts talks about and much more.

What is Tort?

Essentials of Law of Tort

  1. Act/omission: To constitute a tort there must be an act, which can either be negative or positive. There must be some breach of duty to constitute such wrongful act or omission. It means there was a duty to do or not to do a certain action, or to behave in a particular manner which a reasonable man is expected to act under certain circumstances. If a corporation maintains a children park which has a poisonous plant but fails to put proper fencing. If one of the children eats a fruit from that tree and dies, then the corporation can be held liable for such an omission. A person cannot be held liable for social or moral wrong. For example, if somebody fails to help a starving man then he cannot be held liable because it is a moral wrong unless some legal duty can be proved.
  2. Legal Damage: In order to constitute tort, breach of legal duty must be there. The legal right vested with the plaintiff should have been breached i.e certain act or omission have resulted in the breach of legal duty. The action can be instituted if there is a breach of legal right. For the injury sustained by the plaintiff, damages could be claimed by him. Legal damage could be understood more clearly with the help of following maxims:

1. Injuria sine damnum: “Injuria” means unauthorised interference with the right of the plaintiff. “Damnum” means harm or loss suffered in terms of comfort, money, health etc. When there is violation legal right without any harm to the plaintiff, the plaintiff can approach the court.

In Ashby v. White, the plaintiff was detained by the defendant, a returning officer. The plaintiff was a qualified voter at the parliamentary election but due to detention, his voting right was violated. The plaintiff sued the defendant for violation of his legal right. Since there is a right there is also a remedy available for it.

Similarly, in Bhim Singh v. State of J&K, plaintiff was an MLA of J&K who was detained wrongfully by the police officer while he was going to attend Assembly session. The fundamental right of personal liberty was violated and moreover, he was not presented before the magistrate within the requisite period. Here the wrongful and malicious act of the defendant was actionable so court awarded exemplary damages of Rs 50,000 to Bhim Singh.


2. Damnum sine injuria: According to this maxim, there is some injury caused to the plaintiff without any unauthorised interference to plaintiff’s legal right. A person cannot claim damages in law even if the injury is caused due to the deliberate act of the defendant, as long as the other party is exercising his legal right. For example, a defendant set up a school exactly in front of the school of the plaintiff. The plaintiff suffered loss because of the rival school as he has to lower the fees and many students took admission in defendant’s school. There is no remedy available for the loss suffered by him. The defendant has not done anything in excess of his legal right.

Development of law of torts in India

To deal with the malicious behavior of the people tort existed in Hindu and Muslim law but it can be said that tort was formally introduced by the Crown in India. It is based on the principles of equity, justice, and good conscience. The law of torts is based on the principles of ‘common law’ which is mainly the English law of torts. The application of the law of tort is an applied selectively in Indian courts keeping in mind if it suits the circumstances of Indian society.

Justice Bhagwati in M.C Mehta v. Union of India observed that:
“We have to evolve new principles and lay down new norms which will adequately deal with new problems which arise in a highly industrialized economy. We cannot allow our judicial thinking to be constructed by reference to the law as it prevails in England or for the matter of that in any foreign country. We are certainly prepared to receive light from whatever source it comes but we have to build our own jurisprudence.”

Is it Law of tort or Law of Torts?

Each theory is correct from its point of view it depends on the question of approach or looking at things from a certain angle.

How law of torts is different from crime

S.NO               Tort                Crime
1. The person who commits a tort is known as ‘tortfeasor’. The person who commits a crime is known as ‘offender’.
2. Proceedings take place in Civil Court. Proceedings take place in Criminal Court.
3. The remedy in tort is unliquidated damages. The remedy is to punish the offender.
4. It is not codified as it depends on judge-made laws. Criminal law is codified as the punishments are defined.
5. Private rights of the individuals are violated. Public rights and duties are violated which affects the whole community.

Types of torts

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

  1. 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:

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:

  1. There must be an apprehension of harm.
  2. 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. Pointing a stick towards a person is assault. Hitting with the stick is battery as there is a 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 :

  1. There must be an intention
  2. Period of confinement
  3. Knowledge of the plaintiff
  4. 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:

  1. There must be malice towards the plaintiff
  2. The absence of reasonable cause
  3. Prosecution by the defendant
  4. 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:

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. In, Harash Mendiratta v. Maharaj Singh, it was held that only the person who has been defamed can maintain an action and not his friends, family or relatives. 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

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:

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:

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:

  1. There was knowledge of risk by the plaintiff
  2. 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 tank 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:

  1. Some dangerous thing must have been brought by a person on his land.
  2. The thing kept on land must have escaped.
  3. 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

Other Tort

Nuisance: It is derived from a French word “nuire” which means to annoy or harm. The person in possession of the property is entitled to free use and enjoyment of his land and property without any unauthorised interference. If any interference is caused then the tort of nuisance has occurred. It is different from trespass which is the interference of plaintiff’s possession through some tangible object or material whereas nuisance is the interference with the right accessory to possession.

Elements of nuisance:

  1. There must be some wrongful act committed by the defendant.
  2. The wrongful act must result in some injury to the legal right of the plaintiff.

Kinds of Nuisance

Defenses

Remedies

References

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