Vous êtes sur la page 1sur 140

Meaning of tort

• The term ‘tort’ is the French equivalent of the English word

‘wrong’, and of the Roman Law term ‘delict’
• It is introduced into the English law by Norman jurists.
• The word ‘tort’ is derived from the Latin term ‘tortum’, twisted,
and implies conduct which is twisted or tortious.
• It means a breach of some duty independent of contract between
citizens giving rise to a civil cause of action and for which
compensation is recoverable.
• Public nuisance is an instance of a civil injury for which an action
for damages in tort will not lie except when it becomes a private
nuisance as far as the person suffering special damage is
How word “Tort” came to India
• It came to India through England.
• In 1065 England was conquered by Normans who were the French
speaking people of Normandy, a region of France.
• After Norman conquest, French became the spoken language in
the Courts in England, and thus many technical terms in English
law owe their origin to French, and ‘Tort’ is one of them.

• Along With Having Certain Rights, Everyone Has The Duty to

Respect the Rights of Others.

• The Purpose of Tort Law is to Enforce Those Rights and Duties

Meaning of tort
• The person committing a tort or wrong is called a tort-feasor or
wrong doer, and his misdoing is a tortious act .
• The principal aim of the law of torts is compensation of victims or
their dependants.
• Grant of exemplary damages in certain cases will show that
deterrence of wrong-doers is also another aim of the law of torts.
Salmond's Definition of Tort and its
Sir John Salmond: "Tort is a civil wrong for which the remedy is
common law action for unliquidated damages and which is not
exclusively the breach of contract or the breach of trust or other
merely equitable obligation.“

• It fails to underline the essential characteristics of tortions acts.

• it does not explain what is wrong and what kinds of wrong
explaining jural features of tort.
• The definition is more informative but this is also not perfect.
Definitions of tort
Fraser: A tort is an infringement of a legal right in rem of a private
individual, giving a right of compensation of the suit of the injured

Prof. P H Winfield: Tortious Liability arises from breach of a duty

primarily fixed by law; this duty is towards persons generally and its
breach is redressable by an action for unliquidated damages.

Section 2(m) of Limitation Act, 1963: "Tort means a civil wrong which
is not exclusively a breach of contract or breach of trust.“
Salmond's Definition of Tort and its
Sir John Salmond: "Tort as a civil wrong for which the remedy is
common law action for unliquidated damages and which is not
exclusively the breach of contract or the breach of trust or other
merely equitable obligation.“

• It fails to underline the essential characteristics of tortions acts.

• it does not explain what is wrong and what kinds of wrong
explaining jural features of tort.
• The definition is more informative but this is also not perfect.
Tort and Contract
• A contract is founded upon consent: a tort is inflicted against or without
• A contract necessitates privity between the parties to it: in tort no privity
is needed.
• Tort vs breach of contract
• A tort is a violation of a right in rem, i.e., of a right vested in some
determinate person, either personally or as a member of the
community, and available against the world at large:
-whereas a breach of contract is an infringement of a right in
personam, i.e., of a right available only against some determinate person
or body, and in which the community at large has no concern.
• In the case of a tort, the duty violated is one imposed by the law and is
owed to the community at large.
- In the case of a contract, the duty is fixed by the will and consent
of the parties, and it is owed to a definite person or persons.
Tort and Contract
• E.g. if A assaults B, or damages Bs property without lawful cause or
excuse, it is a tort.
• Here the duty violated is a duty imposed by the law, and that is the
duty not to do unlawful harm to the person or property of
• But if A agrees to sell goods to B for a price, and either party fails
to perform the contract, the case is one of a breach of contract.
• Here there is no duty owed by A except to B, and none owed by B
except to A.
• The duty that is violated is a specific duty owed by either party to
the other alone, as distinguished from a general duty owed to the
community at large.
Tort and Contract
• In a breach of contract, the motive for the breach is immaterial: in a tort,
it is often taken into consideration.
• Damages in Contract- Liquidated, Tort- Unliquidated.
• In a breach of contract, damages are only as a measure of compensation.
In an action for tort to the property, they are generally the same. But
where the injury is to the person, character, or feelings, and the facts
disclose improper motive or conduct such as fraud, malice, violence,
cruelty, or the like which aggravate the plaintiffs injury, he may be
awarded aggravated damages.
• Exemplary damages to punish the defendant and to deter him in future
can also be awarded in certain cases in tort but rarely in contract.
• A clause in a contract limiting liability cannot be relied upon by a person
who is not a party to that contract and incurs liability in tort.
• Law of torts is aimed at allocation or prevention of losses whereas the
law of contract aims to see that the promises made under a contract are
Same Action amounting to Tort and a Breach of
• Persons, such as carriers, solicitors, or surgeons, who undertake to
discharge certain duties and voluntarily enter into contracts for the
due performance thereof, will be liable for neglect or unskillfulness
either in an action for a breach of contract or in tort to a party to
the contract or in tort only to a person not a party to the contract
who suffers injury.
• The breach of such contracts amounts also to a tort because such
persons would be equally liable even if there was no contract as
they undertake a duty independently of any contract.
• A father employs a surgeon to attend on his son. The son is
injured by unskilful treatment. Here there is a contract between
the father and the surgeon, but none between the son and the
surgeon. The father, therefore, may sue the surgeon in contract,
but the son can sue him only in tort.
Same Action amounting to Tort and a Breach of
• In Donoghue v. Stevenson, (1932) AC 562: 48 TLR 494(HL) a
manufacturer who sold substandard article to a retailer who sold it
to a customer was held liable to a friend of the customer who after
consuming it became ill.

• The manufacturer was under a contractual duty to the retailer and

was in breach of that duty but he also owed a duty in tort to take
reasonable care not to harm the consumer.
Tort and Quasi-Contract
• Quasi -contracts cover those situations where a person is held
liable to another without any agreement for money or benefit
received by him to which the other person is better entitled.
• contract differs from tort in that there is no duty owed to persons
generally for the duty to repay money or benefit received is owed
to a definite person or persons; and the damages recoverable are
liquidated damages and not unliquidated damages as in tort.
• On both these aspects quasi -contract has similarity with contract.
Tort and Quasi-Contract
• Quasi -contract resembles tort and differs from contract on one
aspect that the obligation in it as in tort is imposed by the law and
not under an agreement as in contract.
• There is one aspect in which quasi -contract differs from both tort
and contract.
• E.g. when A pays money under a mistake to B, B is under an
obligation to refund it to A, even though the payment is voluntary
and is not induced by any fraud or misrepresentation emanating
from B.
• In this illustration it cannot be said that there was any primary
duty on B not to accept the money paid to him under a mistake
and the only duty on him is the remedial or secondary duty to
refund the money to A; but in tort as also in contract there is
always a primary duty the breach of which gives rise to the
remedial duty to pay compensation.
Tort and Crime
• A tort is an infringement or privation of the private or civil rights belonging to
individuals considered as individuals; whereas a crime is a breach of public
rights and duties which affect the whole community.
• In tort, the wrongdoer has to compensate the injured party: whereas, in crime,
he is punished by the State in the interests of society.
• In tort, the action is brought by the injured party: in crime, the proceedings are
conducted in the name of the State and the guilty person is punished by the
• Criminal Courts are authorised within certain limits and in certain circumstances
to order payment of a sum as compensation to the person injured out of the
fine imposed on the offender.
The compensation so awarded resembles the award of unliquidated
damages in a tort action but there is a marked difference. The award of
compensation in a criminal prosecution is ancillary to the primary purpose of
punishing the offender but in a tort act ion generally it is the main purpose.
Only exemplary damages allowed in a tort action are punitive in nature
and one of the reasons for severely restricting the categories of cases in which they
can be awarded is that they import a criminal element in civil law without proper
Tort and Crime
• The Bombay High Court has viewed the difference from the perspective
of the nature of punishment and sanctions imposed.
• The court observed that "it is the fundamental principal that what
constitutes crime is essentially a matter of statute law. Word "crime is
not defined precisely in the penal Code. A crime has to be distinguished
from a tort or a civil wrong. The distinction consists in the nature of the
sanction that is attached to each form of liability. In the case of a
crime, the sanction is in the form of punishment while in the case of a
tort or a civil wrong the sanction is in the form of damages or
compensation to the person injured. Primarily, the purpose of
punishment is deterrence. The purpose of compensation, however, is
recompense". (State of Maharashtra v. Govind Mhatarba Shinde (2010)
4 AIRBom 167)
• There is, however, a similarity between tort and crime at the primary
level. In criminal law also the primary duty not to commit an offence for
example murder like any primary duty in tort is in rem and is imposed by
the law.
Tort and Crime
• The same set of circumstances will, in fact, from one point of view,
constitute a tort, while, from another point of view, amount to a
• In the case, for instance, of an assault, the right violated is that
which every man has, that his bodily safety shall be respected, and
for the wrong done to this right the sufferer is entitled to get
damages. But this is not all. The act of violence is a menace to the
safety of society generally, and will therefore be punished by the
• Where the same wrong is both a crime and a tort (e.g., assault,
libel, theft, mischief to property) its two aspects are not identical;
its definition as a crime and as a tort may differ; what is a defence
to the tort (as in libel the truth) may not be so in the crime and the
object and result of a prosecution and of an action in tort are
Tort and Breach of Trust
• In case of BoT by trustees, the beneficiary can claim such
compensation which depends upon the loss that the trust
property has suffered.
• The damages in the case of BoT, are liquidated- Damages in the
tort are unliquidated.
• Indian Trusts Act, 1882
• 3. Interpretation clause- "trust"

• A "trust" is an obligation annexed to the ownership of property, and arising out

of a confidence reposed in and accepted by the owner, or declared and
accepted by him, for the benefit of another, or of another and the owner:

• "author of the trust": "trustee": "beneficiary": "trust property": "beneficial

interest": "instrument of trust":
• the person who reposes or declares the confidence is called the "author of the
trust": the person who accepts the confidence is called the "trustee": the
person for whose benefit the confidence is accepted is called the
"beneficiary": the subject-matter of the trust is called "trust-property" or
"trust-money": the "beneficial interest" or "interest" of the beneficiary is his
right against the trustee as owner of the trust-property; and the instrument, if
any, by which the trust is declared is called the "instrument of trust";
The elements of valid trust are presented in section-6.
Intention of the author to create the trust.
Purpose of the trust.
The monetary asset is assigned for the benefit of the trustee.
Gives control or transfer the trust property to the trustee which
includes intention of the author.
Trustee can claim expenses & salary from the benefits from the trust
of his work.
The requirement of the trust law is that the author should indicate by
words or conduct with the reasonable intention to create a trust.
"breach of trust": a breach of any duty imposed on a trustee, as
such, by any law for the time being in force, is called a "breach of
• Tort is an instrument for making people adhere to standards of
reasonable behavior and respect the rights and interests of one
• "interest" means "a claim, want or desire of a human being or
group of human beings which the human being or group of
human beings seeks to satisfy.
• The law, determines what interests need protection.
• A protected interest gives rise to a legal right which in turn gives
rise to a corresponding legal duty.
• Some legal rights are absolute in the sense that mere violation of
them leads to the presumption of legal damage.
• There are other legal rights where there is no such presumption
and actual damage is necessary to complete the injury which is
redressed by the law.

• An act which infringes a legal right is a wrongful act .

• But every wrongful act is not a tort.

• To constitute a tort or civil injury, there must be,

• (1) wrongful act
• (2) legal damage or actual damage and
• (3) legal remedy in the form of an act ion for damages.

• The act complained of should, under the circumstances, be legally

wrongful as regards the party complaining; that is, it must
prejudicially affect him in some legal right; merely that it will,
however directly, do him harm in his interest is not enough.
(Rogers v. Rajendro Dutt, (1860) 8 )
• An act which, prima facie, appears to be innocent may become
tortious, if it invades the legal right of another person.
• E.G. Construction on ones own land of anything which obstructs
the light to a neighbours house.
• It is lawful to erect what one pleases on ones own land; but if by
twenty years enjoyment, the neighbour has acquired the legal
right to the unobstructed transmission of the light across that land,
the erection of any building which substantially obstructs it is an
invasion of the right, and so not only does damage, but is unlawful
and injurious.
• The crucial test of legally wrongful act or omission is its prejudicial
effect on the legal right of another
• Legal right:

• It has been defined, by Austin, as a faculty which resides in a

determinate party or parties by virtue of a given law, and which
avails against a party (or parties or answers to a duty lying on a
party or parties) other than the party or parties in whom it resides.

• Rights available against the world at large are sub-divided into

private rights and public rights.
• Private rights include all rights which belong to a particular person
to the exclusion of the world at large.

• These rights are:

• (1) rights of reputation
• (2) rights of bodily safety and freedom
• (3) rights of property

• Public rights include those rights, which belong in common to the

members of the State generally.

• Every infringement of a private right denotes that an injury or

wrong has been committed, which is imputable to a person by
whose act, omission, or forbearance, it has resulted.

• But when a public right has been invaded by an act or omission

not authorized by law, then no action will lie unless in addition to
the injury to the public, a special, peculiar and substantial damage
is occasioned to the plaintiff.

• To every right there corresponds an obligation or duty.

• If the right is legal, so is the obligation

• if the right is contingent, imaginary, or moral, so is the obligation.

• A right in its main aspect consists in doing something, or receiving

and accepting something. So an obligation consists in performing
some act or in refraining from performing an act .

• Liability for a tort arises, when the wrongful act complained of

- amounts either to an infringement of a legal private right


- a breach or violation of a legal duty.

B.Legal Damage

• "Damage" means the harm or loss suffered or presumed to be

suffered by a person as a result of some wrongful act of another.

• The sum of money awarded by court to compensate "damage" is

called "damages".

• From the point of view of presumption of damage, rights are

classified into
• (1) absolute and
• (2) qualified.
B. Legal Damage
• When an absolute right is violated the law conclusively presumes
damage although the person wronged may have suffered no
pecuniary loss whatsoever.

• The damage so presumed is called legal damage.

• Violation of absolute right is, therefore, actionable per se, i.e.,

without proof of any damage.

• In case of qualified rights, there is no presumption of legal damage

and the violation of such rights is actionable only on proof of
actual or special damage.
B.Legal Damage

• In other words, in case of an absolute right, the injury or wrong,

i.e., the tortious action, is complete the moment the right is
violated irrespective of whether it is accompanied by any actual

• whereas in case of a qualified right, the injury or wrong is not

complete unless the violation of the right results in actual or
special damage.
B. Legal Damage
• legal damage is illustrated by two maxims, namely,

 Injuria Sine Damno and

 Damnum Sine (or Absque) Injuria.

• By damnum- a loss, hurt, harm, or damage

• By injuria is meant a Injury; wrong; the privation or violation of right.

• There are two kinds of torts-

 those which are actionable per se, that is, without proof of actual
damage, and
 those which are actionable only on proof of actual damage resulting
from them.
Injuria Sine Damno
• Injuria Sine Damno- the infringement of an absolute private right
without any actual loss or damage, the person whose right is infringed
has a cause of action.

• Every person has an absolute right to his property, to the immunity of his
person, and to his liberty, and an infringement of this right is actionable
per se.

• In India the same principles have been followed.

• The Privy Council has observed that "there may be, where a right is
interfered with, injuria sine damno sufficient to found an action: but no
action can be maintained where there is neither damnum nor injuria" .
(Kali Kissen Tagore v. Jodoo Lal Mullick, (1879) 5 CLR 97 (101))
Injuria Sine Damno
Ashby v. White, (1703) 2 Ld. Raym.938
Refusal to register vote.
The defendant, a returning officer, wrongfully refused to register a
duly tendered vote of the plaintiff, a legally qualified voter, at a
parliamentary election and the candidate for whom the vote was
tendered was elected, and no loss was suffered by the rejection of
the vote.
Held- Defendant Liable.

An action for damages will also lie if a citizen is deprived of his right
to vote by a law which is unconstitutional law by reason of offending
right to equality.
Marzetti v. Williams, (1830) 1 B&Ad 415.

Banker refusing customers cheque.

An action will lie against a banker, having sufficient funds in his hands
belonging to a customer, for refusing to honour his cheque, although
the customer did not thereby sustain any actual loss or damage.


On the opening day of the Budget Session of the Legislative
Assembly, Shri Bhim Singh was suspended from the Assembly. He
questioned the suspension in the High Court of Jammu & Kashmir.
The order of suspension was stayed by the High Court. The next day,
he was arrested and was taken away by the police. His wife filed the
present application for the issue of a writ to direct the respondents to
produce Shri Bhim Singh before the court, to declare his detention
illegal and to set him at liberty.

HELD: The court held that the detention was illegal and qualified as
false imprisonment.
Damnum Sine Injuria
• In cases of damnum sine injuria, i.e., actual and substantial loss without
infringement of any legal right, no action lies.

• Actionable only on proof of damage caused by an act.

• damage caused by acts authorized by statute are instances of damnum

absque injuria, and damage resulting therefrom is not actionable.

• Hence the meaning of the maxim is that loss or detriment is not a

ground of act ion unless it is the result of a species of wrong of which the
law takes cognizance.

• In a suit for damages based on a tort the plaintiff cannot succeed merely
on the ground of damage unless he can show that the damage was
caused by violation of a legal right of his.
Damnum Sine Injuria
District Board, Manbhum v. S. Sarkar, AIR 1955 Pat 432
(Patna High Court)
When a statute confers upon a corporation a power to be exercised
for the public good, the exercise of power is not generally
discretionary but imperative.
No action lies against a District Board for the planting of trees by the
side of a road even if a tree through unknown causes falls and
damages the house of the plaintiff, unless it is proved that the District
Board did not use due care and diligence.
Damnum Sine Injuria
Acton v. Blundell, (1843) 12 M&W 324
a landowner in carrying on mining operations on his land in the usual
manner drained away the water from the land of another owner
through which water flowed in a subterraneous course to his well,
and it was held that the latter had no right to maintain an act ion.

Mayor & Co. of Bradford v. Pickles, (1895) AC 587

Where the defendant intended to divert underground water from a
spring that supplied the plaintiff corporations works, not for the
benefit of his own land, but in order to drive the corporation to buy
him off, it was held that the defendants conduct was unneighbourly
but not wrongful and therefore no action lay.
Damnum Sine Injuria
Wilson v. Waddell, (1876)

Damage caused by lawful working of mine .

Where a landowner by working his mines caused a subsidence of his

surface, in consequence of which the rainfall was collected and
passed by gravitation and percolation into an adjacent lower coal-
mine, it was held that the owner of the latter could sustain no action
because the right to work a mine was a right of property, which,
when duly exercised, begot no responsibility.
Damnum Sine Injuria
Gloucester Grammar School case, (1410)

Setting up rival school.

Where the defendant, a schoolmaster, set up a rival school next door

to the plaintiffs and boys from the plaintiff school flocked to
defendants, it was held that no action could be maintained.
Damnum Sine Injuria
Day v. Brownring, (1878) 10 ChD 294

Using of name of another mans house.

The plaintiffs house was called "Ashford Lodge" for sixty years, and
the adjoining house belonging to the defendant was called "Ashford
Villa" for forty years.
The defendant altered the name of his house to that of the plaintiffs
house. The plaintiffs alleged that this act of the defendant had
caused them great inconvenience and annoyance, and had materially
diminished the value of their property.
It was held that defendant had not violated any legal right of the
Damnum Sine Injuria
Butt v. Imperial Gas Co., (1866) 2 LR Ch App 158.
Obstruction to view of shop.

The plaintiff carried on his business in a shop which had a board to

indicate the materials in which he dealt.
The defendant by virtue of statutory powers constructed a gasometer
which obstructed the view of his premises. In an action by the
plaintiff to restrain by injunction the erection of the gasometer as it
injured him by obstructing the view of his place of business, it was
held that no injunction could be granted for the injury complained of.
Damnum Sine Injuria
Anand Singh v. Ramachandra, AIR 1963
Damage to wall by water .

The defendant built two pacca walls on his land on two sides of his
house as a result of which water flowing through a lane belonging to
the defendant and situated between the defendants and plaintiffs
houses damaged the walls of the plaintiff.
The plaintiff had not acquired any right of easement.
It was held that the defendant by building the wall on his land had
not in any way violated the plaintiffs right, that this was a case of
damnum sine injuria and that, therefore, no right of act ion accrued
to the plaintiff.
Damnum Sine Injuria
Vishnu Dutt Sharma v. Board of High School and Intermediate
Examination, AIR 1981 All 46 .

Loss of one academic year.

A student was wrongly detained for shortage of attendance by the

Principal on a misconstruction of the relevant regulations and
thereby the student suffered the loss of one year.

In a suit for damages it was held that the suit was not maintainable as
the misconstruction of the regulations did not amount to a tort.
• The law of torts is said to be a development of the maxim ubi jus
ibi remedium (For every wrong, the law provides a remedy.).

• Jus signifies here the legal authority to do or to demand

something; and remedium may be defined to be the right of
action, or the means given by law, for the recovery or assertion of
a right.
Some General Elements in Torts


To constitute a tort there must be a wrongful act, whether of
omission or commission, but not such acts as are beyond human
control and as are entertained only in thoughts.

An omission is generally not actionable but it is so exceptionally.

Where there is a duty to act an omission may create liability.
Some General Elements in Torts

2. Voluntary and Involuntary Acts-

Voluntary acts may involve liability and the Involuntary acts may not.

A voluntary act, except in those cases where the liability is strict, has
to be accompanied with requisite mental element, i.e., malice,
intention, negligence or motive to make it an actionable tort
assuming that other necessary ingredients of the tort are present.

Malice in the popular sense means spite or ill-will.

But in law malice has two distinct meanings:

(1) Intentional doing of a wrongful act:
malice is synonymous with intention.

(2) Improper motive.

malice refers to the motive and in this sense it includes not only spite
or ill-will but any motive which the law disapproves.
(1)Intentional doing of a wrongful act:
Thus, "Malice in law" means an act done wrongfully, and without
reasonable and probable cause, and not, as in common parlance, an
act dictated by angry feeling or vindictive motive.

"Malice in law" is "implied malice" when from the circumstances of

the case, the law will infer malice.

West Bengal State Electricity ... vs Dilip Kumar Ray on 24 November,
2006 (2006)
(1)Intentional doing of a wrongful act:
"Malice in law“:
A knocks down a perfect stranger on the road, without any excuse, without
knowing who it is


A trade union called the Belfast Journeymen Butchers' and Assistants'
Association had wanted to enforce a closed shop agreement against Leathem's
butcher business in Lisburn. They approached one of his customers, Andrew
Munce in Belfast, and told him that he should refuse to trade with Leathem unless
Leathem employed only workers who joined the trade union. They said that if
Munce did not do as they wished, they would call a strike among Munce's own
workers. Munce had been buying Leathem's beef for 20 years, but there had been
no written contract about it, and none of Munce's workers had yet been induced to
strike (break their contracts).
Leathem suffered considerable loss to his business, and brought an action for
conspiracy. Lord Justice FitzGibbon instructed the jury that the crucial question was
whether the defendants' dominant motive had been to injure the plaintiff. The jury
found for the plaintiff and awarded him £200 damages.
Improper motive
Malice in the second sense, i.e., improper motive, is sometimes
known as "express malice", "actual malice" or "malice in fact" which
are synonymous expressions.

Malice in this sense, i.e., improper motive, is for example, relevant in

the tort of
Malicious prosecution
Willful and malicious damage to property
Slander of title
Malice-in-fact Malice-in-law

1. Improper motive
When an act is done with ill-
But when an act is done wrongfully
will motive towards an
and without reasonable and
individual then it is called probable cause , it is called Malice-
Malice –in –fact or express in-law or implied malice. In malice-
malice . in-law, the act done must be
wrongful or legal right must be

2. In Malice-in-fact there must While in Malice-in-law there must

be ill-will or any vindictive be Concurrence of mind with a
motive of the defendant wrongful act done by the
against the plaintiff. defendant without just cause or

3. Motive is the main ingredient On the other hand , Knowledge is

upon which Malice-in-fact is the main ingredient upon which
based . Malice-in – law is based .
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.
A balloonist descended in the plaintiff’s garden. A crowd of people
broke into the garden and considerable damage was caused to the
plaintiff’s vegetables and flowers.

Wilkinson v Downtown (1892)

Defendaded played a joke by falsely informing the plaintiff the
husband of the plaintiff had met with a serious accident whereby
both his legs were broken. The plaintiff suffered a severe shock.
Held Liable
Motive is the ulterior object or purpose of doing an act . It differs
from intention in two ways.
First, intention relates to the immediate objective of an act, whereas,
motive refers to the ulterior objective.
Secondly, motive refers to some personal benefit or satisfaction
which the act or desires whereas intention need not be so related to
the actor.

When A poisons B, the immediate objective is to kill B, and so this is

A's intention.
The ulterior objective of A may be to secure B's estate by inheritance
or under a will executed by him and this objective will be A's motive.
Motive is generally irrelevant in tort.

Meaning Intention refers to a purposeful Motive alludes to the ulterior

action and a conscious cause, that induces a person to do
decision to perform an act, or abstain from doing a particular
that is forbidden by law. act.

What is it? Objective Driving force

In Allen v. Flood; (1898) AC 1 Lord Watson said: "Although the rule
may be otherwise with regard to crimes, the law of England does not
take into account motive as constituting an element of civil wrong.

Any invasion of the civil rights of another person is in itself a legal

wrong, carrying with it liability to repair its necessary or natural
consequences, in so far as these are injurious to the person whose
right is infringed, whether the motive which prompted it be good,
bad, or indifferent."

An act which does not amount to a legal injury cannot be actionable

because it is done with a bad motive is the act, not the motive for
the act, which must be regarded. If the act, apart from motive, gives
rise merely to damage without legal injury, the motive, however
reprehensible it may be, will not supply that element.
The exceptional cases where motive is relevant as an ingredient are
torts of malicious prosecution, malicious abuse of process and
malicious falsehood.

Motive is also relevant in the torts of defamation, nuisance and


** Mayor of Bradford Corporation v Pickles (1895)

Negligence and Recklessness
• It is a case of negligence when the consequences are not adverted
to though a reasonable person would have foreseen them.

• It is "recklessness" when the consequences are adverted to

though not desired and there is indifference towards them or
willingness to run the risk.

• Recklessness is sometimes called "Gross negligence" but very

often and more properly it is assimilated with intention. It is
sometimes said that "a party must be considered in point of law to
intend that which is the necessary or the natural consequence of
that which he does".
Malfeasance, misfeasance and nonfeasance-
The term ‘malfeasance’ applies to the commission of an unlawful

It is generally applicable to those unlawful acts, such as trespass,

which are actionable per se and do not require proof of negligence or

The term ‘misfeasance’ is applicable to improper performance of

some lawful act.

The term ‘non-feasance’ applies to the failure or omission to

perform some act which there is an obligation to perform.
A public official hires his sister without realizing hiring family
members is illegal.

A lawyer has an incorrect deadline, and files important legal

documents past the deadline’s actual date.

An accountant makes an unintentional error on his client’s tax return.

A business executive willfully ignores company policy and decides to

try and take a short cut to save time and resources.

Liability for tort generally depends upon something done by a man

which can be regarded as a fault for the reason that it violates
another man’s right.

But liability may also arise without fault.

Such liability is known as absolute or strict liability.

strict liability is the rule in Rylands v. Fletcher, that the occupier of
land who brings and keeps upon it anything likely to do damage if it
escapes is bound at his peril to prevent its escape and is liable for the
direct consequences of its escape even if he has not been guilty of
any negligence.

A more important example of strict liability is the rule laid down in

M.C. Mehta v. Union of India, that an enterprise engaged in a
hazardous or inherently dangerous activity is strictly and absolutely
liable for the harm resulting from the operation of such activity.

Another example of liability without fault is the liability of a master

for the tort committed by his servants in the course of employment.
There are also many duties and liabilities imposed by statutes on
employers, e.g., the Factories Act, the Workmen's Compensation Act,
where the
Wrongful Legal damage Legal remedy = Tort
act + +

| | |
(a (infringement (there must be at least
breach of private legal 1 out of 4 remedies
of legal right of recognised by law i.e.
duty) another damages,injunction,
person) specific restitution of
property and self help.)
Personal Capacity & Limitations
• Who are competent to be plaintiff /defendant(party):
• Every person is competent to be party to suit.

• Plaintiff and defendant are parties to suit.

• Plaintiff is a person whose legal right has been

infringed and who files a suit in the court of law to get
legal remedies.

• Defendant is a person who infringed plaintiff’s legal

right and who has been sued by the plaintiff.
Personal Capacity & Limitations
• Who can be plaintiff

• Every person who has a right to sue.

• Any person whose legal right is infringed.
• Every person who is having joint right.
• This, however, is a general rule and is subject to
modification in respect of certain categories of persons.
Personal Capacity : 1. Convict
• Initially a person a convict whose sentence is in enforce
could not sue for injury to his property.

• By Criminal Justice Act 1948, this difficulty is removed

and a convicted person could sue for injury to his

• In India until 1921, certain offences entitled forfeiture

of property of the offender. Later except for certain
offences (Sec. 126, 127, 169) a convict can sue for
wrong to his person or property.
Personal Capacity : 1. Convict
• English Law
• Under the Forfeiture Act, 1870, a convict whose sentence was in
force and unexpired, and who was not "lawfully at large under
any license" could not sue for an injury to his property, or for
recovery of a debt.
• This disability has been removed by the Criminal Justice Act,
• Under the English law, a convicted person, in spite of his
imprisonment, retains all civil rights which are not taken away
expressly or by necessary implication.
• courts remain the ultimate custodians of his rights and liberties
in the same manner as they are in respect of other citizens.
• A convict can, therefore, under English law sue for wrongs to his
person and property like any other citizen
• The Indian law is the same. "Convicts are not, by mere reason of
the conviction, denuded of all the fundamental rights which they
otherwise possess.
Personal Capacity : 1. Convict
• the Constitution guarantees other freedoms like the right to
acquire, hold and dispose of property for the exercise of
which incarceration can be no impediment.
• Like-wise, a prisoner or even a convict is entitled to the
precious right guaranteed by Article 21 of the Constitution
that he shall not be deprived of his life or personal liberty
except according to procedure established by law."
• A convict can, therefore, sue in tort for vindication of his
right which is invaded by a tortious act committed by
• He can thus sue for battery or assault if prison authorities
apply excessive force to enforce prison discipline or apply
force for an improper purpose.
Personal Capacity : 1. Convict
• But a prisoner has no 'residual liberty' to sue for false
imprisonment for breach of prison rules e.g., when he
is segregated in breach of these rules but he can
challenge the segregation by a public law remedy e.g.,
a writ petition; and if conditions of detention are so
intolerable that his health suffers he may also have a
private law remedy of suing in negligence.
(Hague v. Deputy Governor of Parkhurst Prison, (1991))
Personal Capacity : 2. Alien enemy
• An alien enemy means a person of enemy nationality or a
person residing in or carrying on business in enemy
territory, whatever his nationality.
• An enemy alien cannot sue in tort.
• Exception:
• by virtue of an Order in Council, or he comes into the
British Dominions under a flag of truce, a cartel, a pass, or
some other act of public authority putting him in the King's
• Johnstone v. Pedlar, (1921) An alien enemy residing within
the realm by the express or tacit licence of the Crown is
temporarily free from his enemy character and can invoke
jurisdiction of courts.
Personal Capacity : 2. Alien enemy
• Alien enemies residing in India or residing in a foreign
country, cannot sue. (Sec. 83 of the Civil Procedure Code)
• The moment, enmity comes to an end, disability also ends.
• Exception:
- residing with the permission of the Central
- alien friends, may sue in any court otherwise
competent to try the suit, as if they were citizens of India
• Every person residing in a foreign country, the Government
of which is at war with India and carrying on business in
that country without a licence on that behalf granted by
the Central Government is deemed to be an alien enemy
residing in a foreign country. [Explanation to s. 83 Civil
Procedure Code .]
Personal Capacity : 3. HUSBAND AND
• English Law: Earlier,
• A married woman could not sue:
- for any tort committed by a third person unless her
husband joined with her as plaintiff.
• She could also not be sued:
- for a tort committed by her unless her husband was
made a defendant.
• She could not sue her husband and the husband could
not sue her for any tort committed by one against the
Personal Capacity :
• By the Married Women's Property Act, 1882 and the
Law Reform (Married Women and Tortfeasors) Act,
1935, a married woman can sue for any tort committed
by a third person and can also be sued for any tort
committed by her.
• By the Law Reform (Husband and Wife) Act, 1962, each
of the parties to a marriage has the same right of
action in tort against the other as if they were not
married but the court has a discretion to stay the
proceedings to prevent them from using it as a forum
for trivial domestic disputes without any chance of
substantial benefit to either of them.
Personal Capacity : HUSBAND AND
• Marital status of Hindus, Buddhists, Sikhs, Jains and
Muslims in India is governed by their personal laws and
not by the common law.

• Neither does marriage under these personal laws affect

the capacity of the parties for suing or for being sued,
nor does it confer any protection to any of the spouses
for any tortious act committed by one against the
Personal Capacity : HUSBAND AND
• As regards other persons, e.g., Christians who in
respect of the marital status may have been subject to
the common law, can sue or be sued alone to whom
Married Women's Property Act, 1874, applies.
(Protection under: Article 14 of COI)

• The wife can sue the husband for any tort committed
by him against her and the husband can sue the wife
for any tort committed by her against him.
• A Corporation is a legal person.

• The common features of Corporations are a name,

perpetuity of existence and capacity to sue and be
• Suits by Corporations
• Subject to some general reservations, a Corporation can
sue for torts committed against itself.
• A Corporation cannot bring a suit for torts which are only
wrongs against living persons, e.g., assault and false
• It cannot sue for a tort committed essentially against its
shareholders or employees unless the tort also some
impact on the governance or business or property of the
Corporations. (Bognor Regis. UDC v. Campion, (1972) 2 QB
• A Corporation can sue for malicious presentation of a
winding-up petition (Quartz Hill Gold Mining Co. v. Eyre,
(1883) 11 QBD 674) or
• a libel charging it with insolvency or with dishonest or
incompetent management. Metropolitan Saloon Omnibus
Co. v. Hawkins, (1889)
• Suits by Corporations
• A Corporation cannot maintain an action for libel
charging it with corruption for it is only individuals and
not the Corporation who can be guilty of such an
offence. (Mayor etc. of Manchester v. Williams, (1891)
1 QB 94 )
• However, certain authorities show that this view is
erroneous and that a trading corporation is entitled to
sue in respect of defamatory matters which can be
seen as having a tendency to damage it in the way of
its business. (Derbyshire County Council v. Times News
Papers Ltd., (1993)
• A limited liability company, no less than an individual,
can maintain an action for slander without proof of
special damage, where the words are calculated to
injure its reputation in relation to its trade or business.
(D. & L. Caterers. Ld. v. D'Ajou, (1945) 1 KB 364 )
• Suits against Corporations
• A corporation is liable for torts committed by its agents
or servants to the same extent as a principal is liable
for the torts of his agent or an employer for the torts of
his servant, when the tort is committed in the course
of doing an act which is within the scope of the
powers of the corporation.

• It may thus be liable for assault, false imprisonment,

trespass, conversion, libel or negligence. Mersey Docks
Trustees v. Gibbs, (1866) 1 LRHL 93
• Suits against Corporations
• It was thought at one time that a corporation could not be
held liable for wrongs involving malice or fraud on the
ground that to support an action for such a wrong it must
be shown that the wrong-doer was actuated by a motive in
his mind and that "a corporation has no mind. (Stevens v.
Midland Counties Ry. Co., (1854) 10 Ex. 352)

• But the alter ego doctrine** developed later has solved

the difficulty. In the words of Viscount Haldone LC: "A
corporation is an abstraction. It has no mind of its own any
more than it has a body of its own; its active and directing
will must consequently be sought in the person of
somebody who for some purposes may be called an agent,
but who is really the directing mind and will of the
corporation, the very ego and centre of the personality of
the corporation." (Lennard's Carrying Co. Ltd. v. Asiatic
Petroleum Co. Ltd., (1915) AC 705)

• Meridian Global Funds Management Asia Ltd. v.

Securities Commission, (1995) 3 AllER 918
• Privy Council held that a company may be held liable
for the fault of an employee acting in the course of
employment even though the employee acted
contrary to the orders of the company or with a
corrupt purpose.
• It is now settled that a corporation is liable for wrongs
even of malice and fraud.
• Suits against Corporations
• An action for a wrong lies against a corporation where
the thing done is within the purpose of the
• A corporation which is created by a statute is subject
only to the liabilities which the Legislature intended to
impose upon it.
• A corporation is liable even if it is incorporated for
public duties from the discharge of which it derives no
• A government authority or corporation created by a
statute is liable like any private body unless otherwise
provided by statute.
• Suits against Corporations
• There is a difference of opinion on the question
whether a corporation is liable for a tortious act of its
servants which is ultra vires the Corporation.

• One view is that the corporation is not liable the

reasoning being that the corporation could not have
empowered the servant to do an act which it itself has
no power to do.

• In Poulton v. London and S.W. Ry. Co., (1867) 2 LRQB

• Poulton v. London and South Western Railway Co. (1867) L.R. 2
Q.B. 534, 536
• In this case the plaintiff was detained in custody under a station
master's orders because he refused to pay the railway fare for a
horse travelling by one of the defendant company's trains.
• The railway company had authority under the Act of Parliament
to arrest a person who did not pay his fare but none to arrest a
person for non-payment for the carriage of goods. It was held
that the railway company was not liable.
• The company having no power itself to arrest for such non-
payment, it could not give the station-master any power to do
the act . The plaintiff's remedy for the illegal arrest in such a
case would be against the station-master only.

(***This view was taken at a time when the basis of vicarious

liability was thought to be an "implied authority" of the master for
doing the tortious act )
• Suits against Corporations

• It is now accepted that the real test for determining the

master's vicarious liability is not the existence of any
implied authority but the commission of the tort by the
servant "in the course of employment".

• The prevailing view, therefore, is that a corporation is

vicariously liable for a tortious act of its is even though
it is ultra vires provided it is done in the course of
• Suits against Corporations
• A corporation will also be directly liable for a tortious
act, even if it is ultra vires its powers, if it is authorised
or ratified by those who constitute the "directing mind
and will of the corporation."

• Campbell v. Paddington Corporation, (1911) 1 KB 869 :

104 LT 394

• In Campbell v. Paddington Corporation, (1911) 1 KB 869 : 104 LT 394
• In that case the plaintiff was in possession of a house in London from the
windows of which there was an uninterrupted view of part of a certain
main thoroughfare along which it was announced that a public
procession was to pass.
• The plaintiff rented out certain seats on the first and second floors of
the house in order to see the procession.
• The defendants, a Metropolitan Borough in pursuance of a resolution of
their Council to that effect caused a stand to be constructed as regards a
certain highway in which the plaintiff’s house was situated to enable the
members of the Council and their friends to view the procession.
• On account of this obstruction, the prospective lessees refused to come
to observe the procession from the plaintiff’s house.
• The plaintiff filed a suit for recovery of damages.
• It was held in that case that the Metropolitan Borough was not entitled to
construct a stand as it was not compatible for the purpose for which it
was meant.
• The stand built by the borough was held to be a nuisance and the plaintiff
was found to be entitled to recover the profit which but for the
defendants’ act she might have made by letting seats as damages.
• Suits against Corporations
Tiruveriamuthu Pillai Alias B.T. vs The Municipal
Council, AIR 1961 Mad 230
• Plaintiff's dog was killed by the employee of a
Municipal Council in the course of the discharge of his
function of killing stray dogs in the Municipal town
expressly authorized by the Council.
• In an action by the plaintiff for damages against the
Council for the loss of the dog, held, that the Council
was liable for the unlawful act of having brought about
the killing of the plaintiff's dog and the fact that the
Council acted in excess of its statutory powers was not
a defence to the action but was only an aggravating
• Foreign corporations .
• A foreign corporation (i.e., a corporation created by the
law of any foreign country) may sue and be sued for a tort,
like any other corporation.
• A multinational corporation having subsidiaries in different
countries and owning controlling shares in the subsidiaries
may be held liable for a tort committed by a subsidiary
company by piercing the veil of incorporation on the reason
that the parent company constitutes the directing mind and
will of the subsidiary company.
• It is on this basis that Union Carbide Corporation (UCC), a
multinational registered in USA, was held liable by Madhya
Pradesh High Court for the Bhopal gas disaster which
resulted from leakage of poisonous gas from a plant owned
by Union Carbide India Ltd. (UCIL), which is a subsidiary of
UCC. (Union Carbide Corporation v. Union of India, 1988 )
• Earlier, Under the common law public bodies charged
with the duty of keeping public roads and bridges in
repair and liable to an indictment for breach of this
duty, were nevertheless not liable to an action for
damages at the suit of a person who had suffered
injury from their failure to keep the roads and bridges
in proper repair.

• This rule has been abrogated in the United Kingdom by

the Highways (Miscellaneous Provisions) Act, 1961.
• Section 41 of the Highways Act, 1980 lays down a
statutory obligation on the highway authority to
maintain the highway.

• As a result of this Act, an action lies against a highway

authority for damage due to non-repair; the authority,
however, can plead as defence that it had taken such
care as in all the circumstances was reasonably
required to secure that the part of the highway in
question was not dangerous for traffic;
• Goodes v. East Sussex County Council, (2000) 3 AllER 603
• The claimant was driving along a road. He skidded on ice,
crashed and was severely injured. He claimed damages
saying that the Highway authority had failed to ‘maintain’
the road.
• Held: The statutory duty on a highway authority to keep a
road in repair did not include an absolute duty to remove
all ice.
• A highway authority’s duty under section 41(1) of the 1980
Act to maintain the highway was a duty to keep the fabric
of the highway in such good repair as to render its physical
condition safe for ordinary traffic to pass at all seasons of
the year.
• It did not include a duty to prevent the formation of ice or
remove an accumulation of snow on the road.
Gorringe v. Calderdale Metropolitan Borough Council,
(2004) 2 AllER 326(HL)

• The duty to maintain the highway under section 41 does

not require the Highway Authority to place on or near the
highway sufficient signs giving warning to motorists that
they were approaching a dangerous part of the road.

Stovin v. Wise, (1996) 3 AllER 801

• The statutory duty does not extend to carrying out work

on land not forming part of the highway and
• the highway authority may also not be held to be in
breach of its common law duty of care in failing to cause
an obstruction to be removed which restricted visibility
and which contributed to an accident resulting in
personal injury.
• Wentworth v. Wiltshire Country Council, (1993)
2 AllER 256

• The Act has been construed to confer a right of

action only to users of the highway who could
prove that they had suffered physical injury to
person or property while using the highway
when it was in a dangerous condition due to
want of repair or maintenance, and
• it has been held that the Act confers no right of
action for purely economic loss resulting from
the highway being in dangerous condition.
• Ivaturi Veera Subramanyam vs President, District
Board, AIR 1941 Mad 733
• The plaintiffs, a father and his three minor children,
have brought this suit for damages under the Fatal
Accidents Act on account of an accident alleged to have
been caused by the negligence of the defendants,
which was responsible for the fall of a tree on a cart
passing along the Narasapur Nidadavole Road, with the
result that the wife and two small sons, aged three
years and one year, of plaintiff 1 were killed. The
amount of damages claimed was Rs. 6000.
• Defendant was not held liable.

• Refer to Word Doc

• S. Vedantacharya v. Highway Department of South
Arcot, (1987) 3 SCC 400 : 1987 SCC(Cri) 559

Highways department of the State of Tamil Nadu was

held liable by the Supreme Court for negligence when a
public transport vehicle plunged into a river on collapse
of culvert on the highway.

*Refer to word doc.

• Dr. C.B. Singh v. The Cantonment Board, Agra, 1974 ACJ 248
• where proper arrangement was not made for lighting a street
and the Cantonment Board was held liable.
• Marakkar & Another v. State of Kerala, AIR 2010 (NOC) 562
• wherein death occurred due to injuries suffered on account of
pot holes in the road maintained by Public Works Department.
PWD held liable for compensation.
• Smt. Selvi v. State of Tamil Nadu & Others, AIR 2010 (NOC) 255
• wherein a child died by falling into sewage line as a manhole was
left open. Metro water supply and sewage board was held
responsible and liable for payment of compensation.
• U.P.Sharma v. Jabalpur Corporation & Others, AIR 2010 (NOC)
919 (M.P.)
• wherein a man skidded from his motorcycle because of sand
lying on public street and suffered injuries. Failure was held to
be on part of Municipal Corporation and was thus held liable for
payment of compensation
• Unincorporated Associations have no corporate existence and
are not legal persons.
• They cannot sue or be sued in their name. Any member or
officer of such an association has to be sued personally for tort
committed by him or authorised by him.
• The provisions of Order I, Rule 8 of the Code of Civil Procedure,
1908, may be availed of if all the members or a number of them
have to be sued.
• (Order I, Rule 8 : One person may sue or defend on behalf of all
in same interest.)
• A partnership firm though not a legal entity can sue or be sued
in the firm name under Order XXX of the Code of Civil
• An association which is registered as a society under the
Societies Registration Act, 1860 can, as provided in section 6 of
the said Act, sue or be sued in the name of its President,
Chairman or Principal Secretary, etc., as may be determined by
its rules or regulations or by a resolution of the Governing Body
when there is no provision on that point in the rules or
• Suits by or against firms (Order XXX):
• It states that any two or more persons claiming or
being liable as partners and carrying on business in
India may sue or be sued in the name of the firm (if
any) of which such persons were partners at the time
of the accruing of the cause of action, and any party to
a suit may in such case apply to the court for a
statement of the names and addresses of the persons
who were, at the time of the accruing of the cause of
action partners in such firm, to be furnished and
verified in such manner as the court may direct. In a
suit by or against a firm, the pleadings may be signed
and verified by anyone of the parties. (Order XXX, Rule
• The English law in the context of trade unions gave
recognition to a theory that there may exist a legal
entity without any corporate existence. In Taft Vale Ry.
v. Amalgamated Society of Railway Servants, (1901) AC
426 : 85 LT 147(HL) it was held that a registered trade
union, though not a corporate body was a legal entity,
and could be sued in tort for the wrongful act s of its

• Similarly, in Bonsor v. Musicians Union (1956) AC

104(HL) an action by a member against a trade union
for wrongful expulsion was upheld on the ground that
the trade union was a legal entity distinct from its
• The Indian Law on this point presents no such anomaly
for section of the Trade Unions Act, 1926, expressly
provides that every registered Trade Union shall be a
body corporate with all attributes of a legal personality.

• The normal age of majority in India is 18 years, but if a

guardian is appointed before that age by a court or
property is taken under superintendence by a court of
wards, the age of majority is 21 years.
(S. 3, The Indian Majority Act, 1875)
• The law of torts makes no special provision for minors.
• A minor can sue for all torts committed against him like
any other person except that he has to bring his suit
through a next friend.
• Pre-natal injuries
• The preponderance of authority now is that a minor can
also sue for pre-natal injuries. [Montreal Tramways v.
Leveille, (1933) ]

• Dietrich v. Northampton (1884) 138

• In this case a woman four or five months advanced in
pregnancy slipped and fell because of a defect in the
highway, as a result of which there was a miscarriage.
Though the child was alive when delivered, it was too little
advanced in foetal life to survive its premature birth, and
died before it was severed from its mother.
• It was held that the action did not accrue to the infant's
• Pre-natal injuries

• Walker v. Great Northern Railway Co. (1890) 28 L. R. (Ir.)


• the plaintiff, a child, sued the railway company for damages

on the ground that he had been born crippled and
deformed because the injury was caused to it (before birth)
by an accident due to railway’s negligence, when the
plaintiff’s pregnant mother travelled on the defendant’s
• It was held that the defendants were not liable for two
reasons. Firstly, the defendants did not owe any duty to the
plaintiff as they did not know about his existence; secondly,
the medical evidence to prove the plaintiff’s claim was very
• Pre-natal injuries
• Montreal Tramways v. Leveille , [1933] S.C.R. 456
• The Supreme Court of Canada allowed an action by a child born
with club feet two months after an injury to its mother by the
negligence of the defendants.
• The respondent’s wife, being seven months pregnant, was
descending from a tram car belonging to the appellant company
when, by reason of the negligence of the motorman, she fell
from the car and was injured.
• Two months later she gave birth to a female child who was born
with club feet.
• The respondent, brought an action against the appellant
company, claiming that the deformity of the child was the direct
consequence of the negligence of the appellant company by
which the mother was injured.
• The action was tried with a jury who found in favour of the
respondent and judgment for $5,500 was rendered accordingly,
which was affirmed by a majority of the appellate court.
• Pre-natal injuries

• Nasciturus pro jam nato habetur

• a Latin legal maxim that refers to a law that grants or

protects the right of a foetus to inherit property.

• Pursuant to this legal principle, the foetus is presumed

to have been born for the purposes of inheritance.
• Pre-natal injuries
• On the recommendation of the Law Commission the
British Parliament passed the Congenital Disabilities
(Civil Liability) Act, 1976, section 1 of which provides
that a person responsible for an occurrence affecting
the parent of a child, causing the child to be born
disabled, will be liable to the child if he would have
been liable in tort to the parent affected.
• Pre-natal injuries
• When the pregnancy and birth follow a sterilization
operation, the mother can claim in full the financial
damage sustained by her as the result of the negligent
failure to perform the sterilization operation properly,
regardless of whether the child was healthy or
abnormal and she is entitled to damages for loss of
earnings, pain and suffering and loss of amenities
including extra care the child would require in case of
being born deformed.( Emeh v. Kensington and Chelsea
and Westminster Area Health Authority, (1984) 3 AllER
1044 )
• Pre-natal injuries
• In the absence of any Indian Act, the Indian courts can take
guidance from the English Act in deciding suits by minors
relating to congenital disabilities.
• The Supreme Court in Union Carbide Corporation v. Union
of India, AIR 1992 SC 248, referred to the English Act and
held that those who were yet unborn at the time of the
Bhopal gas leak disaster and who are able to show that
their congenital defects are traceable to the toxicity from
the gas leak inherited or derived congenitally will be
entitled to be compensated.
• S. Said-Ud-Din v. Court of Welfare Commissioner, (1996)
father of a girl child conceived and born after the disaster
who died after four months showing symptoms of gas
effect because the mother had inhaled the gas was allowed
compensation of Rs.1.5 lakh by the Supreme Court.
• No protection but age taken into account
• A minor enjoys no special protection in a suit filed against him for a
tortious act .
• But his age has to be taken into account when any mental element
such as intention, malice or negligence on his part is relevant for
deciding his liability.

• In Tillander v. Gosselin, (1967) ACJ 306 (High Court of Ontario,

• A child aged 3 years dragged another child of the same age for several
feet and caused extensive injuries but as intention or negligence could
not be imputed to him because of his tender age, he was not held
• In Me Hale v. Watson, (1966) 115 CLR 199
• A minor aged 12 threw a metallic dart towards a post made of hard
wood hoping that its sharp end would stick; but instead of sticking, the
dart bounced and hit a girl standing close by.
• The High Court of Australia absolved the minor of liability for
negligence as a boy of his age could not be expected to foresee the
risk involved.
• In holding so the court applied the principle that where an infant
defendant is charged with negligence, his age is a circumstance to be
taken into account and the standard by which his conduct is to be
measured is not that to be expected of a reasonable adult but that
reasonably to be expected of a child of the same age, intelligence and
• The result of the case would have been different if the dart had been
thrown towards the girl.
• Mullin v. Richards (1998) 1 All ER 920 (CA)
• In this case two fifteen year old girls M and R were
engaged in playing around with plastic rulers as if they
were fencing when one of the plastic rulers snapped and
a fragment entered M's right eye as a result of which she
lost her useful eye sight.
• M brought proceedings for negligence against R which
were dismissed by the court of appeal on the ground that
the accident was not foreseeable.
• "the test is, what degree of care for his own safety can
an infant of the particular age reasonably be expected to
• Subject to these limitations, as earlier stated, a minor is
liable like any adult for the tortious acts.
• For example in the case of a violent assault and battery
on a harmless man, the act in itself is sufficient to
support the cause of act ion and the wrongdoer, even if
a minor, is liable. (Swaroopkishore v. Gowardhandas,
(1955) MB 355. )
• Infants are liable for wrongs of omission as well as for
wrongs of commission. Thus infants are held liable for
assault, false imprisonment, libel, trespass, wrongful
detention of goods, fraud, and for nuisance etc.
• No liability in tort from void agreement.
• An action grounded on contract cannot be changed into
an action of tort.

• Thus, an infant was held not liable for overriding a mare

which he had hired, Jennings v. Rundall, (1799) 8 TR 335 :
4 R.R. 680. or for unskillfully driving a motor-car and
damaging it. (Motor House Company Limited v. Charlie Ba
Ket, (1928) 6 Ran 763)
• Burnard v, Haggis (1863)
• where a minor hired a mare for riding on the express
stipulation that she was not to be used for jumping or
larking. He lent the mare to a friend, who injured it by
making it to jump over a fence.
• The minor was held liable for trespass because using the
mare for a purpose, expressly forbidden by the contract,
amounted to using it without authorization.
• Liability of parent
• A father or a guardian is not responsible for the torts of the
minor. (Vellapandiv v. Manicka Thai, (1970) ACJ 65 (Mad)
• But the circumstances of a case may be such as to constitute
the child the servant for the time being of the father, in which
case the father may be liable as a master for the acts, neglect
and default of his child.
E.G. when he sends out his son on some business with
his cart and horse, and the son causes injury by negligence in
driving. [Gibson v. O'Keeney, (1928)]
• A father may also be liable for his own personal negligence in
allowing his child an opportunity of committing a wrong, as
when he supplies his son with an air-gun or allows him to
remain in possession of it after complaints of mischief caused
by the use of the gun, and the boy afterwards accidentally
wounds a person. (Bebee v. Sales, (1916)
• when the insanity is of a grave nature that the defendant
was unable to know the nature of his act, he would not be
liable in tort (Tindale v. Tindale, (1950) 4 DLR 263.)
• In cases where no specific intent or malice is an ingredient
of the tort, the defendant would be liable if he knew the
nature of his act, although, because of unsoundness of
mind he was unable to know that what he was doing was
wrong or contrary to law.
• E.g. trespass, conversion, defamation [Emmens v. Pottle,
(1885) 16 QBD 354, p. 356. ] and other torts where what is
necessary to prove is only that the defendant intended to
do the physical act which constitutes the tort.
• A person was held liable in tort for violent assault and
battery when he knew the nature of his act though because
of mental disorder he did not know that it was wrong.
[Morris v. Marsden, (1952) 1 AllER 925 : (1952) 1 T.L.R.
• where specific intent or malice is necessary to
constitute the tort, e.g., malicious prosecution, deceit
or libel the defendant may escape liability on account
of his defective mental condition.

• Thus a driver of a motor vehicle cannot escape liability

by showing that he suddenly suffered a malfunction of
the mind which so clouded his consciousness that from
that moment he was, through no fault of his own,
unable properly to control the vehicle or to appreciate
that he was no longer fit to drive. (Roberts v.
Ramsbottam, (1980) 1 AllER 7 )
• English Law

• Rex non potest peccare- “King can do no wrong”: means,

i. whatever is exceptionable in the conduct of public affairs is not

to be imputed to the King, nor is he answerable for it personally to
his people,
ii. secondly, that the prerogative of the Crown extends not to do
any injury.

• So the Crown was not liable in tort at common law for wrongs
committed by its servants in the course of employment not even
for wrongs expressly authorised by it.

• Even the heads of the department or superior officers could not

be sued for torts committed by their subordinates unless
expressly authorised by them; only the actual wrongdoer
could be sued in his personal capacity
• A change was brought about by the Crown
Proceedings Act, 1947.
• Nothing in the Act authorises proceedings in tort
against the Crown in its private capacity (s. 40), or
affects powers or authorities exercisable by virtue of
the prerogative of the Crown or conferred upon the
Crown by statute (s.11(1)).
• Subject to this, the Act provides that the Crown shall
be subject to all those liabilities in tort to which, if it
were a person of full age and capacity, it would be
• The law as to indemnity and contribution as between
joint tortfeasors shall be enforceable by or against the
Crown and the Law Reform (Contributory Negligence)
Act, 1945, binds the Crown.
• The Crown is now vicariously liable for torts committed
by its servants in the course of their employment if
committed in circumstances which would render a
private employer liable.
• So in Home Office v. Dorset Yacht Co., (1970) 2 AlER
294(HL) the Crown was held liable for the damage
caused by runaway borstal trainees who escaped
because of the negligence of the borstal officers in the
exercise of their statutory function to control the
• Indian Law
• (i) Historical Background
• The maxim that the King can do no wrong and the resulting rule of
the common law that the Crown was not answerable for the torts
committed by its servants have never been applied in India.
• The Crown assumed the sovereignty of British India, which was till
then administered by the East India Company, by the Government of
India Act, 1858.
• -The Secretary of State in Council shall and may sue and be sued as
well in India as in England by the Name of the Secretary of State in
Council as a Body corporate; and all Persons and Bodies Politic shall
and may have and take the same suits, Remedies, and Proceedings,
legal and equitable, against the Secretary of State in Council of India
as they could have done against the said Company
• Government of India Act, 1915,section 32
• Government of India Act, 1935,section 176(1)
• Indian Law
• Peninsular and Oriental Steam Navigation Co. v.
Secretary of State for India (1868-1869) 5 Bom HCR
• In that case a servant of the plaintiff company was
proceeding on a highway in Calcutta driving a
carriage drawn by a pair of horses.
• Due to the negligence of the servants of the
Government employed in the Government Dockyard
at Kidderpore in carrying a piece of iron funnel
needed for repair of a steamer, an accident
happened in which one of the horses driving the
plaintiff's carriage was injured.
• The plaintiff company sued the Secretary of State for
India for damages for the damage caused due to the
negligence of the servants of the Government.
• In holding that for such an accident caused by the
negligence of its servants in doing acts not
referable to Sovereign powers the East India
Company would have been liable and so the
Secretary of State for India was liable.
• Indian Law
• Nobin Chandra Dey v. Secretary of State for
India (1876) ILR 1 Cal 12
• The plaintiff in this case contended that the
Government had made a contract with him for the
issue of a licence for the sale of liquors and drugs and
had committed breach of the contract.
• The High Court held that upon the evidence, no breach
of contract had been proved.
• Secondly even if there was a contract, the act had
been done in exercise of sovereign power and was thus
not actionable.
• Indian Law
• Secretary of State v. Hari Bhanji (1882) ILR 5 Mad 273
• In this case, the Madras High Court held that State
immunity was confined to acts of State. In the P & O Case,
the ruling did not go beyond acts of State, while giving
illustrations of situations where the immunity was
available. It was defined that Acts of State, are acts done
in the exercise of sovereign power, where the act
complained of is professedly done under the sanction of
municipal law, and in exercise of powers conferred by law.
The mere fact that it is done by the sovereign powers and
is not an act which could possibly be done by a private
individual does not oust the jurisdiction of the civil court.
The Madras judgment in Hari Bhanji holds that the
Government may not be liable for acts connected with
public safety, even though they are not acts of State.
• Indian Law
• Post Constitution Judicial Decisions
• State of Rajasthan v. Vidyawati, 1962 AIR 933
• In that case, respondent’s husband had been knocked down by
a Government jeep car which was rashly and negligently driven
by an employee of the State of Rajasthan.
• The said car was, at the relevant time, being taken from the
repair shop to the Collector's residence and was meant for the
Collector's use.
• A claim was then made by the respondents for damages against
the State of Rajasthan and the said claim was allowed by this
• In upholding the decision of the High Court which had granted
the claim, this Court observed that the liability of the State for
damages in respect of a tortious act committed by its servant
within the scope of his employment and functioning as such
was the same as that of any other employer.
• Indian Law
• Post Constitution Judicial Decisions
• Kasturi Lal v. State of U.P., 1965 AIR 1039
• The ruling in this case was given holding that the act, which
gave rise to the present claim for damages, has been
committed by the employee of the respondent during the
course of its employment. Also, that employment belonged
to a category of sovereign power.
• This removed any liability on the part of the state.
• In this case, the plaintiff had been arrested by the police
officers on a suspicion of possessing stolen property.
• Upon investigation, a large quantity of gold was found and
was seized under the provisions of the Code of Criminal
• Ultimately, he was released, but the gold was not returned,
as the Head Constable in charge of the maalkhana, where
the said gold had been stored, had absconded with the
• Kasturi Lal v. State of U.P., 1965 AIR 1039
• The plaintiff thereupon brought a suit against the State of UP for the return
of the gold or alternatively, for damages for the loss caused to him. It was
found by the courts below, that the concerned police officers had failed to
take the requisite care of the gold seized from the plaintiff, as provided by
the UP Police Regulations.
• The trial court decreed the suit, but the decree was reversed on appeal by
the High Court.
• When the matter was taken to the Supreme Court, the court found, on an
appreciation of the relevant evidence, that the police officers were negligent
in dealing with the plaintiff’s property and also, that they had not complied
with the provisions of the UP Police Regulations.
• However, the Supreme Court rejected the plaintiff’s claim, on the ground
that “the act of negligence was committed by the police officers while
dealing with the property of Ralia Ram, which they had seized in exercise of
their statutory powers.
• The power to arrest a person, to search him and to seize property found with
him, are powers conferred on the specified officers by statute and they are
powers which can be properly categorized as sovereign powers.
• Hence the basis of the judgment in Kasturi Lal was two-fold – The act was
done in the purported exercise of a statutory power. Secondly, the act was
done in the exercise of a sovereign function.