This article is written by Vriddhi Aroram of Bharati Vidyapeeth’s New Law College, Pune, on ten principles of tort law that every Indian should know.

INTRODUCTION

Every person in our country is entitled to some legal right. Law imposes a duty on every individual to respect the legal right bestowed on others and any person interfering with someone else’s enjoyment of their legal rightis said to have committed a tort. The underlying principle of the law of tort is that every person has certain interests which are protected by law. Any act of omission or commission which causes damage to the legally protected interest of an individual shall be considered to be a tort, the remedy for which is an action for unliquidated damages. Tort is generally a breach of duty. In India, the law of tort is uncodified and is still in the process of development.

However, following are the 10 most important principles of tort:

1.PRINCIPLE OF DAMNUM SINE INJURIA AND INJURIA SINE DAMNUM

• Damnum sine injuriais a Latin maxim which means damage without legal injury. When thereis an actual damage caused to the plaintiff without an infringement of his legal right, no action lies against the defendant. In order to make someone liable in tort, plaintiff must prove that he has sustained legal injury. Damage without injury is not actionable in the law of torts.

Example: A sets up a rival school opposite to B’s school with a low fee structure as a result of which students from B’s school flocked to A’s school thereby causing a huge financial loss to A. This act of A is not actionable in law of torts since it did not lead to the violation of any legal right of the plaintiff although he has sustained financial loss.

• Injuria sine damnum is a Latin term which means legal injury without any damage. This implies an infringement of the legal rights of a person without any actual loss. Loss in this sense could mean loss of health, monetary loss etc. Since there is an infringement of legal right of a person, right to sue for a remedy is available against the wrongdoer regardless of the fact whether any actual loss is sustained or not.

In the leading case of Ashby v White the defendant, a returning officer at a voting booth refused to allow the plaintiff, a duly qualified voter from voting. The candidate for whom the plaintiff was voting got elected and therefore no loss was suffered by him. The court held that although the plaintiff did not sustain any actual loss, but his legal right to vote was violated for which he was granted a remedy.

 2. PRINCIPLE OF VICARIOUS LIABILITY

It is a general rule that a person is responsible for his own act of omission and commission but in certain cases a person is liable for the act of others. This is known as vicarious liability.The essential elements of vicarious liability are as follows:

• There must be a relationship of a certain kind.
• The wrongful act must be related to the relationship in a certain way.
• The wrongful act must be done within the course of employment.

Most common example of vicarious liability include:

1. Employers liability for the act of his servant during the course of employment: This liability is based on the principle of “respondent superior” whereby a person is responsible for the act of his subordinate andqui facit per aliumfacit per se which means he who does an act through another is deemed in law to do it himself.

The essential elements amounting to vicarious liability of a master for the tort of his servant are as follows:

• There should be a master-servant relation.
• The act of omission or commission should be done within the course of employment.

Example: If A, driver of B in his course of employment negligently knocks down C while driving a car, B will be responsible for the negligence of his driver A.

1. Principal’s liability for the act of his agent: When an agent performs an act which is authorised by the principle, the latter becomes liable for such an act of the agent provided the act is done within the course of employment.

1. Liability of partners for each other’s torts: When a partner in the normal course of business of a partnership firm commits a tort, all the other partners are equally responsible for the tort as the guilty partner.

3. PRINCIPLE OF VOLENTI NON FIT INJURIA

The Latin maxim volenti non fit injurialiterally means “to one who volunteers, no harm is done”. A person who after knowing the risks and circumstances willingly and voluntarily consents to take the risk cannot ask for compensation for the injury resulting from it. A person who voluntarily abandons his rights cannot sue for any damage caused to him. It is used as a complete defence in the law of torts liberating the defendant from all kinds of liability.Essential elements constituting volenti non fit injuria are as follows:

• Voluntary
• Agreement (express or implied)
• Knowledge of the risk

Example: By participating in a football match, the player willingly consents to bear the risk that may arise in the normal course of the game.

4. PRINCIPLE OF NEGLIGENCE

Negligence is said to have been committed when a person owes a duty of care towards someone and commits a breach of duty by failing to perform it resulting in a legal damage caused to the complainant. In other words, a tort of negligence is committed when a person is injured due to the irresponsibility of another. The damage so caused must be an immediate cause of the act of negligence and not a remote cause.

Essential elements of negligence are as follows:

• Duty to take care
• Beach of such a duty
• Legal damage caused to the complainant due to a breach of duty

Reasonable foreseeability is the basic principle on which the tort of negligence is based. When a person before or at the time of committing an act can reasonably foresee that his act is likely to cause a damage to the other person and he still continues to do it, he is said to have committed a tort of negligence.

COMPOSITE NEGLIGENCE: When the negligent act of two or more person results in the same damage, it is called composite negligence. The liability in such a case is joint and several.

The burden of proof falls on the plaintiff that he has sustained legal damage due to a breach of duty on the part of the defendant.However, in certain cases the plaintiff doesn’t have to prove negligence on the defendant’s part. Such cases fall under the principle of res ipsa loquitor which means “things speak for itself” where it is evident from the facts of the case that there has been negligence on the side of the defendant.

Example: A doctor while performing an operation leaves a pair of scissor inside the stomach of the patient.

5. PRINCIPLES OF PERSONAL SECURITY

Principles of personal security are as follows:

ASSAULT

Assault is an act which creates in the mind of a person reasonable apprehension of a physical threat or a harm accompanied by a capacity to carry out such a threat. It is important to note that there is an absence of physical contact in assault. Essential elements of assault are as follows:

• Apprehension of harm
• Intention to use force
• Capacity to use force

BATTERY

Battery refers to a harmful, offensive and unlawful touching of a person against his will. It is an application of force to the body of another in an offensive manner. Battery is an accomplished assault.

Essential elements:

• Intention to use physical force
• Actual physical contact

FALSE IMPRISONMENT

Unlawfully restraining a person without his will by someone who does not have any legal authority to do so amounts to false imprisonment. A person may also be made liable for false imprisonment if he intentionally restricts another person’s freedom of movement without any lawful justification. Arrest of a person without any legal warrant and authority also amounts to false imprisonment.

Essential elements:

• Wilful detention
• Detention without consent
• Detention is unlawful

Example: A person locking another person in a room without the consent of the person being locked.

6.PRINCIPLE OF NUISANCE

The word nuisance is derived from the French word ‘nurie’ which means ‘to hurt’ or ‘to annoy’. Nuisance is an unlawful interference with a person’s enjoyment of land or some rights over or in connection with it.

There are two types of nuisance:

1. PUBLIC NUISANCE: It is an interference with the right to enjoyment of land of a large number of people thereby causing inconvenience and annoyance. It is committed against the community at large and not any particular individual. It covers a wide variety of minor crimes that harms or threatens the safety, comfort and welfare of people at large. The extent to which the inconvenience has been caused may differ from person to person.

Examples: Fireworks in the street, construction of a structure in the middle of a public way obstructing the passage of people, etc.

1. PRIVATE NUISANCE: It refers to an unlawful interference with a person’s use or enjoyment of his land causing inconvenience and annoyance to the person. It should be noted that while public nuisance affects the community at large, private nuisance affects an individual.

Example: Destruction of crops of an individual, a poisonous dog of a person enters into the neighbour’s premises and causes destruction.

REMEDIES

1. Damages
2. Injunction
3. Abatement

7. PRINCIPLE OF TRESPASS TO PROPERTY

Trespass to property refers to an unjustifiable physical encroachment of land of one person by another. If a person directly enters upon another person’s land without permission or remains upon the land or places any object upon the land, he is said to have committed the tort of trespass to land.

For an act of trespass to be actionable, it is necessary that the land in which the trespass has been committed must be in direct possession of the plaintiff. For example, use of camera in order to view activities on the land of another. The encroachment on plaintiff’s land should arise out of the direct consequence of the act of the defendant and not any remote or indirect cause.Also, one of the most important elements of trespass to land is the intention in the mind of the defendant not to commit trespass but to commit the act that amounts to trespass. Trespass to land is actionable per se.

However, it should be noted that there is a difference between trespass to land and nuisance. Trespass is an encroachment or interference on the property of a person whereas nuisance is an interference with the right to enjoy his property.

CONTINUING TRESPASS: Continuing trespass occurs when there is a continuation of the presence after the permission has been withdrawn or when the offending object remains on the property of the person entitled to possession. For example continuing to keep an object on someone’s land even after the permission has been withdrawn.

Ways in which trespass to land can occur:

• Entry upon land
• Trespass to airspace (limited)
• Trespass to the ground beneath the surface

REMEDIES

Damages: the plaintiff is entitled to full compensation of the loss incurred by him.

Injunction: order by the court directing the defendant from doing or restraining from doing an act.

8.  PRINCIPLES OF REPUTATION AND PRIVACY

The principles of reputation and privacy are as follows:

DEFAMATION

Defamation means publishing false and defamatory statement about someone without any lawful justification which lowers his reputation in the eyes of the right thinking members of the society. In other words, defamation means intentional false communication either written or spoken which harms a person’s reputation.

Defamation is of two types:

 LIBEL: This is a written form of defamation which is actionable per se. Libel refers to the statement which intends to lower the reputation of another person without any lawful excuse. The statement must be in printed form capable of being reproduced like cartoons, drawings, recordings, etc.

SLANDER: Slander is an oral form of defamation where false and defamatory statements are made by words spoken or gestures which intend to lower the reputation of a person.

Essential elements of defamation are as follows:

1. Statement must be published
2. It must be defamatory
3. It must be false
4. It must refer to the plaintiff

Defences against an action for defamation are as follows:

1. Statements made about a public personality
2. Statements which are true
3. Fair comment
4. Consent of the aggrieved

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9. PRINCIPLE OF STRICT LIABILITY AND ABSOLUTE LIABILITY

STRICT LIABILITY:

At times a person may be held responsible for doing a wrong even though there had been no negligence on his part or no intention to do such wrong or even if he had taken necessary steps to prevent such a wrong from happening. This is known as the principle of strict liability and is based on a no fault theory. The principle of strict liability was first laid down in the landmark case of Ryland’s v. Fletcher.

“ Anyone who in the course of “non-natural” use of his land “accumulates” thereon for his own purposes anything likely to do mischief  if it escapes is answerable for all direct damage thereby caused. It imposes strict liability on certain areas of nuisance law.”

The essential elements of strict liability are as follows:

• There has to be some hazardous thing brought by the defendant on his land.
• Escape of the hazardous thing from the territory of the defendant.
• There must be a non-natural use of land.

Exceptions:

• Escape of the hazardous goods was because of plaintiffs own consent
• Act of god
• Act of a stranger
• Act done by any statutory authority
• Default of the plaintiff

ABSOLUTE LIABILITY:

Absolute liability is a stricter form of strict liability. It refers to the no fault theory liability in which the wrongdoer is held absolutely liable for the act of omission or commission without any defences which are available to the rule of strict liability. It is applicable only to those people who are involved in hazardous or inherently dangerous activity whereby they become absolutely liable to full compensation for the harm caused to anyone resulting from the operation of such hazardous activity. The rule of absolute liability was first laid down in M.C Mehta v. Union of India (Oleum gas case).

 10. POSITION OF MINORS IN LAW OF TORT

In India, a minor is a person who is below the age of 18 years. They can sue just like adults but through their parents and can also be sued like adults if they are old enough to form an intention to commit a tort.

CAPACITY TO SUE

A minor can sue for any wrong done to him through his ‘litigation friend’ who usually is his father. A minor may even sue his parents for a negligent act. A child who sustained injury while in the mother’s womb can also sue the guilty after coming to the world.

CAPACITY TO BE SUED

A minor is generally not capable of being sued if he commits a tort since he is incapable of reimbursing damages, but in most of the cases he can be sued just like an adult. Also, a minor can be sued for contributory negligence.

PARENTS LIABILITY FOR A MINORS TORT

Parents could be held liable for the tort committed by their children if they owed a direct duty of care towards their child while he committed the tort. They are responsible for their children’s action the same way as the employers are responsible for the harmful action of their employees.

 

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