The article is written by Nikhil Thakur from Manav Rachna University. In this article, the author seeks to explain the various kinds of torts. Moreover, the author has mentioned several landmark judgments of various courts to elaborate on the concept more deeply.
It has been published by Rachit Garg.
The “Law of torts” is an overarching field of law. Basically, a tort is a wrong that is civil in nature and the remedy for the same is by way of a legal action that is a ‘suit’ for unliquidated damages. The basic notion behind the law of torts is that it is based on the maxim “Ubi Jus Ibi Remedium” which signifies; that where there is a right, there is a remedy.
The principle of tort is a common law principle, hence, the concept of tort was prevalent in the United Kingdom. Therefore, the concept of tort arrived in India with the arrival of Englishmen or the Britishers. In the contemporary period, Indian courts before applying the principle of torts which has evolved from the English law make sure that those laws are well-fitted within the contemporary Indian society.
Over the past, various types of torts have evolved and most of them have been enlisted and briefly explained in this article.
The term ‘Tort’ originated from the Latin word ‘tortum or tortus’ which refers to ‘twisted or crooked’. The term tort was introduced in English law by French lawyers or judges of the Norman and Angevin Kings of England.
Salmond stated tort as; ‘A civil wrong against which the remedy for the same is an action for unliquidated damages which is not a result borne out of violation of the terms of the contract, or breach of a trust, or infringement of any other equivalent liability’.
Constituents of tort
Chiefly, there are 3 major constituents of a tort, that are;
- Wrongful act/omission
- Legal damage
- Legal remedy
Wrongful act (act or omission)
Commission of a wrongful act or omission is an essential condition to hold a person liable under tort. The person or offender must have committed an illegal act or omitted something from doing an act. Liability under tort arises when the commission of an act amounts to infringement of a legal right or legal duty. Most importantly, those illegal acts and omissions must have been recognised under the law.
Legal damage (injuria sine damno or damnum sine injuria)
The second essential ingredient for constituting a tort is legal damage. Damage refers to a loss or harm suffered by a person or aggrieved due to a wrongful act of another. Until or unless there is no legal damage, there shall be no action under the law of tort.
Injuria sine damno
The term injuria means ‘injury’, sine means ‘without’ and damno means ‘any physical loss’. The maxim injuria sine damno means an injury or damage caused to an aggrieved without suffering any physical harm. Therefore, it means an injury suffered without an actual loss.
In a landmark verdict of Ashby v. White (1703), the plaintiff was a qualified voter. However, the defendant refused the plaintiff the right to vote. It was concluded that damage shall not only include money rather legal damages also against such restrictions. Therefore, if the said person’s legal rights are infringed may file a suit for remedies.
Damnum sine injuria
This maxim is just a reversal of the maxim Injuria sine damno. Under Damnum sine injuria, the person actually faces losses or damages without any infringement or violation of a legal right.
Legal remedy (Ubi Jus Ibi Remedium)
The third and another essential for constituting a tort is a legal remedy. One of the essentials for claiming remedies is to prove that the act so committed was a wrongful act. The most common remedy which is claimed under tort is through action in damages, while there are several other remedies which are claimed like injunction, restitution, recovery, etc.
Ubi Jus Ibi Remedium
The law of tort has developed from the maxim Ubi Jus Ibi Remedium, which means there is no wrong if there is no remedy for the same or where there is a right there is a remedy.
Types of torts
Chiefly, there are four major categories of tort that are;
- Strict liability tort
- Intentional tort
- Constitutional tort
- Negligent tort
|STRICT LIABILITY TORT||INTENTIONAL TORT||CONSTITUTIONAL TORT||NEGLIGENT TORT|
|Dangerous activitiesAnimal attack, etc.||AssaultBatteryConversionFalse imprisonmentDeceitTrespassNuisance||Bivens action||Car accidentsTruck accidentsBicycle accidentMotorcycle accidents, etc.|
Besides these abovementioned categories of torts, there are further 3 minor categories of torts, which are;
- Vicarious liability
- Absolute liability
Strict liability tort
The principle of strict liability originated from a landmark judgement of Ryland v. Fletcher  UKHL 1. In the instant case, ‘B’ a mill owner employed an independent contractor to construct or establish a water reservoir for the mill’s purpose. During the course of the construction of the water reservoir, the contractor came to know about the old shafts and passages on B’s land. The contractor without repairing those shafts completed the construction without informing the mill owner about such defaults. The cause of action arose on the day when the reservoir was filled with water and the water gushed through those defaults or shafts and flooded/devastated the adjoining mine of ‘A’. In response, ‘A’ sued ‘B’. When the matter went before the court, ‘B’ was held liable to pay the damages to ‘A’ under the principle of strict liability despite the fact that ‘B’ was not negligent but rather the contractor.
Justice Blackburn explaining the concept of strict liability concluded that the rule of law is that, any person who brings upon his land and, collects and keeps anything likely to create mischief and if escaped, must keep it at his/her own risk and if it does not do so the person who brought such thing shall be held liable to all the damages that have been a result of such an escape.
Another landmark case, Crowburst v. A.B Board , held that if a person grows a poisonous tree on his land and a horse of the neighbouring house happens to eat the leaves of such poisonous tree and the horse dies, the person who has grown such a poisonous tree on his land shall be held liable to pay the damages under the principle of strict liability.
Exceptions to the principle of strict liability
- Consent of plaintiff
In case, the plaintiff has given due consent or prior consent of the act, in such circumstances the doctrine of strict liability shall not apply, however, the concept of ‘volenti-non-fit injuria’ would still be applicable. In these cases, the defendant is immune from any kind of liability.
- Common benefit
In case, the thing which is in issue or is the source of danger or is used for the common benefit of both the plaintiff and the defendant, in that case, the defendant shall not be held liable.
In the famous case of Carstairs v. Taylor , the defendant used to stay on the first floor and the plaintiff was staying on the ground floor. There was a common roof on which there was a box where water is collected and discharged through a pipe. One day, a rat gnawed a hole in the box and the water leaked out. The leakage resulted in damaging the goods of the plaintiff. Plaintiff filed a suit against the defendant and the matter went to court, and it was held that the defendant shall not be held liable because the drainage pipe was instituted not specifically for the benefit of the defendant but rather for the common benefit of both the parties.
- Act of stranger
If wrongdoing or mishappening was the result of a stranger’s action then the principle of strict liability shall not be applicable.
Under Richards v. Lothian  UKPC 1, a stranger without understanding the consequences blocked the waste pipe of a lavatory fixed to the defendant’s house. Due to pressure, the plaintiff’s premises got flooded with wastewater. As a result, the plaintiff filed a suit against the defendant. The Court held the defendant as not liable for the act so committed because the said act was the result of a stranger.
- Statutory authority
When the Parliament or the state legislature have explicitly held a specific action to be excluded from the ambit of the principle of strict liability. In such cases, the principle of strict liability shall not be applied.
- Act of God
‘Act of God’ is the most common way of defence to escape liability. The defendant merely has to prove the fact that the escape was inevitable or was not under the control of the defendant.
For instance; due to heavy rainfall, the tree on the farm of “A” fell on B’s building. In that case, “A” can use the defence of the act of god and escape the liability.
- Default of plaintiff
If the escape was due to the result of the plaintiff itself, then the plaintiff does not stand the right to claim compensation. The defendant cannot be held liable in that scenario.
For instance; Plaintiff went to a zoo and started teasing the tiger. The tiger attacked the plaintiff and the plaintiff succumbed to injuries. In that case, the sole responsibility is of the plaintiff only, hence, the zoo authority cannot be held liable.
Assault and battery
Assault and battery are two distinctive forms of trespass to a person. An intentional application of force against a person is known as a battery. While assault means an action undertaken by the defendant that causes the plaintiff an apprehension of infliction of a battery by the defendant (presumption).
For an instance; if a person throws water on another person it is an assault. While the moment water strikes that person it becomes a battery. Similarly, merely pulling the chair away while the person was sitting on it is an assault, it becomes a battery soon that person strikes the ground/floor.
There are several cases with respect to assault;
- In R v. St. George (1840), it was held that mere pointing of an unloaded gun at someone shall not amount to an assault. While pointing the unloaded gun at dangerously close-quarter shall amount to an assault because there is a reasonable apprehension of such an impact.
- In Stephens v. Myers (1830), there was a general meeting where the chairman and the defendant were present. A resolution was initiated against the defendant for his removal. Laterwards, the defendant stood up and went towards the chairman, however, was stopped by another member present in the meeting. The act was held as an assault.
- In Cullison v. Medley 570 N.E.2d 27 (Ind. 1991), it was explicitly held that assault takes place when a person intentionally creates an apprehension of offensive physical contact with another person. Therefore, there is no actual physical touching but rather a connection of the mind. Hence, the damages recovered are for mental trauma and distress.
An intentional direct infliction of physical force against a person is known as a battery. It is essential to have direct physical contact without the consent of the person with an intention to harm for constituting a battery.
Chiefly, there are two categories under the battery that are;
- Criminal battery,
- Civil battery
A battery that is seldom considered a crime is known as a criminal battery. The intention of killing someone or maiming someone with a dangerous tool/weapon intentionally is sufficient to constitute a criminal battery.
A battery that is seldom considered a civil wrong is known as a civil battery. When a person does not have any intention to inflict harm against another person, however, executes such an act that inflicts harm to such person or had an intention and commits an act in furtherance of it is sufficient to constitute a civil wrong. Therefore, under civil battery, a person without having any intention to commit a tort can be held liable.
Similarly, there are various cases concerning battery;
- In Cole v. Turner (1704), three things were highlighted that are;
- Firstly, touching anyone out of anger constitutes a battery,
- Secondly, touching anyone gently (having no anger) is not a battery,
- Thirdly, using violence against another is sufficient to constitute a battery.
- In Garratt v. Dailey 46 Wash. 2d 197, 279 P.2d 1091 (Wash. 1955), in this case, it was held that with respect to the intentional tort of battery a person committing the act or the defendant shall be aware of the impact or repercussions attached to it. Further, it was stated that even a five-year-old kid can be held liable for committing an intentional tort of battery. Therefore, even a minor is not immune from the effect of the battery.
Defences against the tort of assault and battery
There are several defences that may be claimed against the tort of assault and battery;
- Self-defence; a person while safeguarding or protecting his/her person, family or property may resort to self-defence which is a natural right recognised under the law.
- Right to expulsion; as a matter of right a person may expel another person who is a trespasser to his/her property (without consent).
- Right to retake the property; law recognises using force to retain one’s legal property. (circumstantial evidence shall be considered)
- Volenti non-fit injuria; if a person willfully places himself in a position where he/she may be subject to harm and harm is inflicted in such a case no defence can be claimed for the damages. This remedy is generally claimed on behalf of the defendant against the plaintiff.
- Arrest; law recognises arrest and obligates the police officer to arrest a person who has committed a tort.
- Force by authority; guardians, parents, boss, and the captain of the ship may in the authoritative position use force to correct the mistakes of the subordinate.
A conversion is a wrongful act of gaining possession of the goods of another person through a wrongful means. The person under possession denies the title to the rightful owner. Chiefly, there are three major essentials of conversion that are;
- Wrongful gaining possession of the goods.
- Abusing possession,
- Denies title to the rightful owner.
Components of conversion
Wrongful gaining possession of the goods
An important essential for constituting conversion is intention. For an instance; that a person “A” intends to steal some goods of “B” and eventually steal them amounts to conversion.
To better understand the concept, there is a case of Foldes v. Willoughby (1841), in which there was a person “A” who along with his horse embarked on “B’s” boat. However, while sailing B left A’s horse on the shore and went the other side with A. A filed a suit against B and claimed that B had committed the tort of conversion. The Hon’ble Court deciphered that there was no conversion as B had no intention of stealing A’s horse.
In Richardson v. Atkinson (1876), the defendant drew out some quantity of wine from the cask of the plaintiff. The defendant after taking some quantity, filled the cask with water to hide what he has taken. The matter went to court and it was decided that the defendant was liable for the tort of conversion as he had the intention of stealing the plaintiff’s wine.
A person may gain possession of the good of another person as a bailee, pawnee, trustee, etc. In case, such person as bailee, pawnee, trustee, etc. abuses his power and sells off or disposes off the said entrusted goods is said to have committed the crime of conversion.
For an instance; ‘A’ as a trustee has been given the possession of an egg which belongs to ‘B’ for custody purposes. ‘A’ intentionally or knowingly made an omelette out of such an egg is said to have committed conversion.
Denies title to the rightful owner
Denial of title to the rightful owner of the good amounts to conversion. For an instance; “A” the owner of the mobile dropped it on-road and by the time he picks it up “B” another person took it and claim such mobile as his, B is said to have committed conversion.
As a general rule, the finder of the good has every right over the found property except against the real or the original owner. In case, the rightful owner claims nothing, the finder of the good has every right against anyone.
In Armory v. Delamire 93 ER 664, a sweeper while cleaning the chimney found a piece of jewellery. Sweeper handed possession of such a piece to the defendant who went to a goldsmith for valuation purposes. Later, the defendant refused to hand over the jewel back to the sweeper. It was decided that the sweeper shall be entitled to such a piece of jewellery because he had a better title in comparison to the defendant.
In another famous case of Bridges v. Hawkesworth (1851), a customer entered the shop of the plaintiff and found a bundle of currency notes on the floor. The owner had no clue about those bundle of notes, however, claims the bundle as his. Finally, it was decided that the customer is entitled to those currency notes, not the owner because the owner never had custody of those currency notes before the customer had possession of them.
Inflicting bodily restraint on anyone without the authorisation of law is known as false imprisonment. The restraint is upon man’s liberty to freely go and move.
In Robinson v. Bui Main Ferry Co. Ltd. (1910), the plaintiff had paid a certain sum of money to enter a dock for sailing to the next intersection. However, to come back, the plaintiff had to pay the money again but he refused. It was explicitly held that the defendant shall not be liable for the tort of false imprisonment because the defendant as a toll receiver can prevent the plaintiff from evading the payment. Therefore, the defendant shall satisfy the court that he has reasonable justification concerning the detention of the plaintiff.
Deceit (Negligent misstatement)
Deceit means false or a wrong statement made by any person upon which another person got influenced and acted upon it and incur harm or losses.
In the landmark case of Peasley v. Freeman (1789), the concept of deceit was further expanded. In the said case, the defendant assured the plaintiff that “A” is a trustworthy person to be allowed a credit of money. However, the assurance was false due to which the plaintiff incurred the loss. Therefore, the defendant was held liable for committing the tort of deceit.
Essentials of deceit are as follows;
- Making a false statement,
- Knowledge of the fact that the statement so made is false,
- Intention to make the plaintiff act upon such a false statement,
- Plaintiff incurs losses
What all things are not considered as deceit;
- Mere silence shall not amount to deceit,
- Mere promise shall not amount to deceit,
- Mere opinion shall also not amount to deceit.
In Edginton v. Fitzmaurice (1885), a company raised debentures and stated that the said debentures’ money shall be used for purchasing vans for the purpose of the company. However, the said money was utilised to pay off outstanding loans of the company. The said act was held as deceit.
In Candler v. Crane, Christmas and Co. (1951), the accountant of the company prepared the accounts of the concerned company and influenced the plaintiff to invest a certain sum in the said company. The plaintiff acted upon it and invested. The plaintiff incurred a few losses and it was held that it was a mere careless misstatement, hence, it shall not be actionable until or unless there was a contractual relationship among the parties.
Trespass to land
Specifically, trespass means entering someone’s estate, property or land without the permission or consent of the lawful owner.
Chiefly, there are two essentials of the trespass;
- Invasion into someone else’s property or land
The lawful owner shall have all the right to exclude all others from his property, land or estate. The owner has the right to quiet and peaceful enjoyment of his/her property. Anyone who invades or enters his/her property is said to have committed trespass. The invasion need not be forceful, hence, an invasion be it so minute is trespass.
- Without due permission of the lawful owner
Any invasion without due permission of the owner shall amount to trespass. Trespass need not be in person it can be through one’s chattel or domestic animal like cow, horse, etc
Trespass ab initio
Trespass ab initio means a trespass which is a trespass from the very beginning. In this case, a person lawfully enters into the premises of another person, however, during the stay, he/she abuses their authoritative position, hence, trespassing ab initio. An important condition to constitute trespass ab initio is that the person in default must have abused his position/ stance by doing some act.
In the Six Carpenter’s (1572) case, it was held that if an electrician or a carpenter enters the premises lawfully, however, commits some act that resulted in the damaging of the property or belongings of the plaintiff shall be held liable under trespass ab initio.
Remedies available against trespass
- Right of re-entry
- Suit for recovery of land
- Suit for mesne profit (any profit gained by a person from the land without legal authority)
- Jus Tertii (right of the third party like easementary right)
Defences available against trespass
- Right by prescription
- Authorised by law
- Abating a nuisance (invading into someone’s land is justified if it is for the purpose of avoiding nuisance)
Nuisance has been derived from the french word ‘nuire’ which means to hurt or annoy. According to Winfield, nuisance is incapable of having an exact definition, however, any illicit interference with a person’s use or enjoyment of land or some right is known as a nuisance.
The concept of nuisance is based on the maxim ‘Sic utere tu et alienum non laedas’ which means to use property in such a way that it does not impact the rights of others.
Types of nuisance
Chiefly, there are two categories of nuisance;
- Public nuisance and
- Private nuisance
A public nuisance is a crime because it affects the peace, tranquillity, harmony, convenience, etc. in the society at large. For an instance; creating obstruction at the national highway.
In Soltan v. De (1851), there was a catholic church in the residence that rings the bell all throughout the day. A suit against the same was filed. It was held that the ringing of the bell throughout the day is sufficient to be covered within the scope of public nuisance, therefore, an injunction was granted.
A nuisance that impacts the rights of a specific person is known as a private nuisance (no implication in public). The remedy that can be claimed for private nuisance is a civil action for damages or injunction.
A few instances of private nuisance are as follow;
- Obstructing the light and air of the plaintiff,
- Playing loud music
- Knocking doors without a reason, etc.
A private nuisance is further divided into two types;
|DAMAGE TO PROPERTY||PHYSICAL DISCOMFORT|
|There shall be damage to the property of the plaintiff.||The act must be in excess of the ordinary course of enjoyment.|
|For example; loud noise, trees falling, water leakage, etc.||For example; obstructing the passage of air and light, heart patients and neighbours playing loud music, etc.|
In Robinson v. Kilvert (1889), the defendant used to stay on the ground floor where he manufactures or produces paper boxes. On the first floor, the plaintiff had stored important sensitive papers. Due to heating from the ground floor, the plaintiff’s paper got spoiled. It was held that even in normal conditions the plaintiff’s papers were sensitive, therefore, the defendant was held not liable.
In Heath v. Mayor of Brighton (1908), the defendant’s power station used to produce a huge amount of noise and against which the nearby church filed a suit because it affects the sermon. However, it was held that the noise never affected the attendance of the sermon hence, there was no nuisance.
Bivens action is a concept that has evolved in the United States of America (USA). Bivens action is that type of action where the plaintiff files a suit against the federal officials for violating those rights that are protected under the Constitution of the United States of America.
The concept of Bivens’s action found its origin from the US Supreme Court judgement of Bivens v. Six Unknown Named Agents 403 U.S. 388 (1971). Specifically, If the constitutional right of a person has been violated, the aggrieved may bring an action directly or personally against the federal officer.
The burden of proof is upon the plaintiff to prove that the federal officer (US) has violated certain constitutional rights of the plaintiff. Moreover, when the violation has been proved the plaintiff shall satisfy the court that there were some damages incurred.
Exceptions to this concept
- The federal officer while performing the adjudicatory function is immune from Bivens’s action as held in the case of Butz v. Economou, 438 U.S 478 (1978).
- The President of the United States of America (USA) is absolutely immune from Bivens action as held in the case of Nixon v. Fitzgerald 457 U.S 731 (1982).
Specifically, negligence means an infringement of a lawful duty by the defendant against the plaintiff that has resulted in undesirable damage. In proving the tort of negligence, the plaintiff must satisfy the court that the defendant owed a duty of care which he/she has violated and resulting in damages.
Essentials of negligence
Chiefly, there are three essentials of negligence;
- Duty to take care,
- Breach of duty
- Undesirable damage
A leading case in respect to negligence is Donoghue v. Stevenson (1932), in the instant case, the manufacturer used to sell ginger beer in opaque bottles to the retailers. One day, the plaintiff along with a girl went to the retailer and bought the beer. The girl after consuming it found a dead snail in it and fell sick. A suit was filed. it was held that a person shall take reasonable care to avoid those acts that can be reasonably foreseen. Further, it was observed that it is the responsibility of the defendant or the manufacturer to take reasonable care that the bottle did not contain any noxious substance in it. It is a milestone case in this respect, hence, is considered a statement of law.
In Blyth v. Birmingham Waterworks Co. 11 Exch. 781, Justice Alderson B. defined negligence and said that it is an omission or an act that a prudent person would refrain from doing it. These are the objective standards of a prudent person. It applies the ‘forsee-ability test’.
In Narayan Puno v. Kishore Tanu (1979), it was explicitly stated that it is the duty of the plaintiff to prove that the defendant was negligent.
In Roe v. Minister of Health (1954), a doctor administered a spinal anaesthetic to the plaintiff for conducting an operation. The anaesthetic contained was not in a good condition due to which the plaintiff got paralysed. The doctor had taken all the care a prudent person would have taken, hence, the doctor was held not liable.
In Bolton v. Stone (1951), the plaintiff was moving on the roadside and got injured after a cricket ball struck him badly. The ball came from a yard that was almost more than 100 yards away from the main road. The matter went to court and it was held that the defendant shall not be held liable for such an act because the hit was so exceptional that no prudent or reasonable person would have foreseen such.
Most importantly, there shall be an injury to the plaintiff which is the direct consequence of the negligent act of the defendant.
The liability where the master or the principal or partner or the employer is held liable for the tort committed by his/her servant or agent or another partner or employee. The concept of vicarious liability is based on the maxim ‘Qui Facit per alium Facit per se’ which implies that “he who acts for another, acts for himself”.
Qui Facit per alium Facit per se was inadequate to explain the reason as to why the master is held liable for the tort committed by his/her servant. Over the years, various theories came into existence like; the General Command theory or Particular Command theory, however, both fizzled to explain the reason. Hence, the modern theory came into existence and stated that the master is held liable for the tort committed by his/her servant because the master is the authority under whose direction such servant executes his/her work.
Specifically, a servant is one who acts under the guidance of his/her master. The master is not only in the position to order the servant to work rather also obliged enough to control the work. The rule is that the servant works under the thumb of his/her master. The master even has the power to remove the servant.
Chiefly, there are four major categories under vicarious liability.
Categories of relationship in vicarious liability
- Principal-agent relationship
The person who acts on behalf of the principal is known as an agent. Hence, any wrong committed by the agent during the course of his/her employment is said to have committed a tort under the instruction of his/her principal. Therefore, the principal shall be held liable for the act committed by his/her agent.
- Master-servant relationship
Similar to the principal-agent relationship, the master shall be held liable for all those acts committed by his/her servant. Most importantly, the act so committed must be executed during the course of the servant’s employment’ otherwise, the master shall not be held liable.
The phrase within the ‘course of employment’ means and includes;
- Performing an authorised act, or
- Performing an authorised act in an unauthorised way, or
- Performing an act that is incidental thereto.
If the servant has committed a tort during the course of his employment and the said act comes within the framework of any of the above-mentioned provisions, the master shall be held liable. The master is liable for the carelessness, mistake or wilful wrong of the servant.
In the case of Central Co. v. Northern Ireland Road Transport , there was a driver who was transferring petrol from the lorry to the tank. While transferring the same, the driver lit up the cigarette and negligently or carelessly threw it on the floor without any ill will or intention. Due to such an act, the area got exploded and the adjoining property of the plaintiff got damaged. The matter went to court and the plaintiff accused the defendant’s master and held him liable for the careless actions of the driver. It was held that ‘though the act of driver was innocent, however, was enough to constitute a negligent act, hence, the master was held liable to pay the damages’.
- Partner relationship
In the case of partners, all the partners are liable equally if any one of the other partners has committed a wrong or tort.
In the case of Hamlyn v. John Houston and Co. , there was a company having two partners. One of the partners illicitly bribed the plaintiff’s clerk with the intention to extract confidential data concerning the employer’s firm. It was explicitly held that irrespective of the fact whether the other partner had the knowledge of the act of the other partner or not still both the partners shall be held liable.
- Employer-independent contractor relationship
An independent contractor is a person who is duly appointed by the employer for performing a specific job. A servant is different from an independent contractor because the servant works under the control and supervision of the master while the independent contractor as the name suggests is independent of taking all his actions. Therefore, the employer in case of a tort committed by an independent employer is not liable.
However, this doesn’t mean that the employer is absolutely immune. There are certain exceptions when the employer is held liable;
- When the employer has committed the tort by himself/herself, or
- When the employer has authorised the independent contractor to commit a tort, or
- When the tort committed is covered under the scope of strict liability, or
- When there was negligence on the part of an independent contractor.
illustration; the defendant appointed an independent contractor to cut the trenches for the purpose of making a drain from his house. However, the independent contractor though completed the work but negligently filled the drainage. Due to such, the plaintiff got injured. The defendant was held liable because he is covered under the last exception.
When a person or an entity is held liable for the tort committed without considering the element of fault or intention is known as Absolute liability. The nature of absolute liability is quite harsh.
In common parlance, absolute liability means when a person is held responsible without his/her actual default or excuse. Under absolute liability, there is no need to prove mens rea, whether the person had the intention to commit the crime or not shall be held liable.
In tort, if the defendant is held liable under absolute liability shall be made accountable to pay damages. The damages shall be based on the harmful act so committed (the gravity of the offence shall determine the amount of damages to be paid).
In cases of absolute liability, the plaintiff only needs to prove that the offender or the defendant has committed an act that resulted in damages and causality. Moreover, the plaintiff is not liable to prove that the defendant owed it a duty of care and all. However, the defendant despite having committed no negligence or executed the act in good faith shall be held liable.
In the landmark Supreme Court case of M.C Mehta v. Union of India AIR (1987), the Supreme Court of India was of the opinion that larger the enterprises, larger will be the liability for compensation against damages. The compensation shall be determined on the basis of the magnitude of the enterprise as it will work as a deterrent.
In the abovementioned case, the Supreme Court of India explicitly rejected the concept of strict liability as held in Ryland v. Fletcher  UKHL and proposed the concept of absolute liability. Further, it was stated that corporations engaged in hazardous activities having potential disastrous effects on humankind shall be made accountable under absolute liability.
Defamation as a tort
Defamation is a tort when someone’s reputation is abused. It is an act of harming the prestige of such a person via making, publishing, etc a wrongful or false statement against a third party. In India, defamation is considered to be both a civil and a criminal offence. Defamation is considered a tort because every individual has the right to enjoy a good reputation, therefore, violating or harming someone’s reputation is considered a legal wrong, therefore covered under the purview of tort.
In common parlance, defamation means the publication of a statement that is directed specifically against a particular person or organization or institution which has the capability of lowering a person’s/organizational/institutional reputation among the society at large.
Section 499 of the Indian Penal Code, 1860 also defines defamation as; that any person by way of a word (Spoken or written) or by sign or by visible representation prepares or publishes any information with respect to a person with an intention to abuse his/her reputation.
Essentials of defamation
Chiefly, there are four essentials of defamation that are;
- False statement,
- Written or spoken,
- Defamatory statement (intended to abuse anyone’s reputation)
- Publication of such statement.
The primary and the foremost essential to constitute defamation is that the statement or phrase so made is a false statement and is specifically intended to harm or abuse the reputation of the person among the masses.
Written or spoken
The false statement so made can be either written or spoken. One of the landmark cases in this respect is Youssoupoff v. Metro-Goldwyn-Mayer Pictures Limited (1934), where the producer of the film namely “Rasputin, the mad monk” picturised a princess named “Natasha” who got raped by the mad monk. In response to the said film, princess Irina of Russia (wife of prince Youssoupff) claimed compensation on grounds that the reference to the mad monk who raped the women in the film was directed toward prince Irina. Twenty-five thousand pounds was allowed as compensation by the jury.
Another important essential for constituting defamation is that the false statement so made shall be defamatory in nature (abusive to one’s reputation). Essentially, the word shall expose the person to contempt or hatred against his/her profession or trade.
The victim or the plaintiff shall satisfy the court of law that the reference so made by the accused or the defendant is specifically directed against him/her. In this case, the intention is immaterial.
If a statement is made by the defendant against a specific class or group of persons in that case also the plaintiff shall satisfy the court that the statement was directed against him. If a person says that ‘lawyers are thieves’ in that case no particular lawyer can sue because it was not made intentionally against a specific lawyer as held in the case of Eastwood v. Holmes (1860). However, when the word has a double meaning it is defamatory in nature and hence called ‘Innuendo’.
Another important essential for constituting defamation is the publication of a false statement. Publication means disseminating/issuing/broadcasting/printing the statement so made among the public at large.
Therefore, from the above article it is clear that torts is a vast concept that inculcates various nuances under it. It is a very dynamic conception, hence, it is open to various other fields. The notion of tort is so alive that till now the 300-year-old case of Ryland v. Fletcher is applicable in modern scenarios.
- Law of Torts – Common Law of Torts – Development in India – iPleaders
- Law Of Torts – Notes, Case Laws And Study Material (legalbites.in)
- Intentional Tort (Legal Definition: All You Need To Know) (lawyer.zone)
- All You Need To Know About Torts of Nuisance and False Imprisonment (lawctopus.com)
- What Is Vicarious Liability Under Tort Law (writinglaw.com)
- Bivens Action (Constitutional Torts: All You Need To Know) (lawyer.zone)
- Absolute Liability (Legal Definition: All You Need To Know) – Lawyer.Zone
- Conversion an Intentional Tort (legalserviceindia.com)
- Battery as a Tort : Essentials, Defenses, Remedies (ipleaders.in)
- Assault And Battery- In Law Of Torts (legalserviceindia.com)
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