CERTIFICATE COURSE ON LIABILITIES UNDER TORT

Objective of the Course

Tort has been an unexplored area in India. Although it had arrived in India way back in 18 th
century but it has failed to make a mark as compared to the other codified laws, despite of being
very strong law because of its powers when it comes to compensation. The present Course shall
deal with the liabilities under torts. The initial modules shall help you understand what exactly is
torts and what are liabilities. You shall then learn about various types of Liabilities under Tort in
an elaborate manner. The Course shall finally deal with the exceptions to these liabilities which
are well known as Defences. It is highly significant to understand Tort law so as to make the best
possible use of it.

We would now take this opportunity to begin the Course with Module 1 of the Course. All the
very best from our side. Take the Course seriously and study very well. Do the assignments on
time. Let us begin.

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MODULE 1: INTRODUCTION TO TORTS
AND LIABILITIES

This module aims to create a general backdrop of the concept of Torts and various Liabilities
under the same. The importance of instilling the general introduction of the subject matter is of
utmost importance before preparing the Foundation of the subsequent course.

1. WHAT IS TORT AND HOW DID IT COME TO INDIA?

1.1. Meaning of Torts-

 The word ‘Tort’ has been derived from the Latin word ‘tortum’ which translates to
‘twisted’. In the easiest set of words, a tort is a civil wrong that causes someone to suffer
loss or harm and results in legal liability for the person who commits the tortious act.

 According to Wex Legal Dictionary, a tort can be defined as “an act or omission that
gives rise to injury or harm to another and amounts to a civil wrong for which courts
impose liability. In the context of torts, "injury" describes the invasion of any legal right,
whereas "harm" describes a loss or detriment in fact that an individual suffers.”

1.2. Arrival of Tort Law in India-

 The concept of deciding cases by applying Tort Laws commenced during the British era
in India. It is a relatively new development here, and most of it is still uncodified.
 The earliest origins of Torts can be seen in the Roman laws in the form of delict, which
later influenced the civil law jurisdictions in Continental Europe, but a distinctive body of
law arose in the common law world traced to English tort law.
 The sources of Tort Law in India include:

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 Statutes:These are the codified parts of the Tort Law. Moreover, the Indian Penal Code
also criminalises certain torts of grave nature, for example, criminal trespass, assault etc.

Common Law: As this particular form of law is young in India, it refers to certain
judicial precedent from countries such as the United Kingdom, Australia, Canada etc.

Relevant Local Customs and Practices:

Certain local customs and practices need to be adapted to before applying the foreign judicial
precedents into the matters in the Indian cases.

2. THE CONCEPT OF INJURIA SINE DAMNO AND

DAMNUM SINE INJURIA

These are two important legal maxims attached to the concept of Torts and damages.

2.1. Damnum Sine Injuria

It means damage which is not coupled with an unauthorized interference with the plaintiff’s
lawful right. Causing of damage, however substantial, to another person is not actionable in law
unless there is also the violation of a legal right of the plaintiff. The maxim damnum sine injuria
can be better explained by the following mathematical formula as deduced by Prof. S.P. Singh in
his book ‘Law of Tort’ as:

Act + Loss — Injury = Damnum sine injuria

Defendant’s act + plaintiff’s loss — Plaintiff’s injury = Damnum sine injuria.

Defendant’s act + Defendant’s malice + Plaintiff’s loss — Plaintiff’s injury = Damnum sine
injuria.

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LANDMARK CASE: GLOUCESTER GRAMMAR SCHOOL 1

The plaintiff had a school wherein there were many students enrolled. The school, being the only
one in the locality was flourishing well. However after a passage of time, the Defendant opened
another school of his own just infront of the Plaintiff’s school. He also kept the fees half of that
of the Plaintiff’s school fees. This led to the transfer of old and new students from Plaintiff’s to
Defendant’s school, and the former suffered huge monetary los. He filed a suit against the
defendant for damages.

The House of lords held that merely starting a competitive business does not violate any of the
Plaintiff’s Legal Rights even when he suffered monetary losses. The suit was hence rejected.

2.2. INJURIA SINE DAMNO

Injuria sine damno means the violation of a legal right without causing any harm, loss or damage
to the plaintiff. It is just reverse to the maxim damnum sine injuria.

In case of injuria sine damno, the loss suffered by the plaintiff is not relevant for the purpose of a
cause of action. It is relevant only for assessing a number of damages. If the plaintiff has suffered
no harm and yet the wrongful act is actionable, nominal damages may be awarded.

Thus, the maxim injuria sine damno can be better explained by the mathematical formula
deduced by Professor S.P. Singh in his book ‘Law of Tort’ as:

Act + Injury-Loss = Injuria sine damno.

Defendant’s act + Plaintiff’s Injury — Plaintiff’s loss = Injuria sine damno.

LANDMARK CASE: ASHBY vs. WHITE 2

The plaintiff was a qualified voter at a parliamentary election, but the defendant, a returning
officer wrongfully refused to take plaintiff’s vote. No loss was suffered by such refusal because

1
(1410) Y B 11 Hen IV 27
2
(1703) 2 LR 938

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the candidate for whom he wanted to vote won in spite of that. The defendant was held liable,
even though his actions did not cause any damage.

3. TYPES OF TORTS
Although the list of torts may not be categorized under fixed numbers. However, in order
to develop a better understanding of the same, it has been categorized into the following
broad types-

Types of
Torts

Strictly
Intentional Negligence
Liable

 Types of Torts (Broad Classification)

3.1. Intentional Torts:

An intentional tort is when an individual or entity purposely engages in conduct that causes
injury or damage to another.

For example - Striking another person in a fight is an intentional act that would be the tort of
battery. Striking a person accidentally would not be an intentional tort since there was not intent
to strike the person.

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SOME STANDARD EXAMPLES OF INTENTIONAL TORTS:

Although the list shall not be an exhaustive one, but a broad classification of Torts which are
Intentional may be given as:

Conversion Tresspass

Examples
of
Battery
Intentional
Torts

Emotional
Assault
Distress

TYPES OF
False
INTENTIONAL Fraud Imprisonment
TORTS

 Conversion – the act of someone taking another person’s property and converting it to his
own use. This is also known as “stealing” in many jurisdictions.

 Trespassing – the act of using or occupying another person’s real property without
permission.

 Battery – the illegal act of harmful or offensive contact with another person’s body. The
word comes from the term “to batter” and it covers an array of activities including firing a
gun at someone or using the hands to cause harm to another person.

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  Assault – an intentional act creating in another person apprehension or fear of being
harmed. Assault is carried out by threat of causing bodily harm, together with the victim’s
perception that the aggressor has the ability to cause harm.

 Intentional Emotional Distress – the act of causing mental anguish to another person
through outrageous conduct, injury, or other harm.

 False Imprisonment – act of holding someone against their will without legal authority.
According to the law, a citizen is not allowed to restrict the movement of another person
without his consent. Business owners can, however, detain people suspected of shoplifting.

 Fraud – the act of intentionally deceiving a person or entity for the purpose of monetary
gain.

3.2. Negligence

The Tort of Negligence is a legal wrong that is suffered by someone at the hands of another who
fails to take proper care to avoid what a reasonable person would regard as a foreseeable risk. In
many cases there will be a contractual relationship (express or implied) between the parties
involved, such as that of doctor and patient, employer and employee, bank and customer, and
until relatively recently it was necessary for such a contractual relationship to exist in order for a
claim for negligence to succeed.

Unlike intentional torts, negligence cases do not involve deliberate actions, but instead are when
an individual or entity is careless and fails to provide a duty owed to another person.

ELEMENTS OF NEGLIGENCE

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 Duty
•the defendant has a duty to others, including the plaintiff, to exercise reasonable
care.

Breach
• the defendant breaches that duty through an act or culpable omission.

Injury
• as a result of that act or omission, the plaintiff suffers an injury.

Chain of Causation
• there is a reasonably foreseeable consequence the defendant's act or of omission.

SOME STANDARD EXAMPLES OF NEGLIGENCE

 Slip and fall accidents

 Car accidents
 Truck accidents
 Motorcycle accidents
 Pedestrian accidents
 Bicycle accidents
 Medical malpractice

3.3. Strict Liability

 Generally, liability because of a tort only arises where the defendant either intended to
cause harm to the plaintiff or in situations where the defendant is negligent. However, in
some areas, liability can arise even when there is no intention to cause harm or
negligence.
 For example, in most states, when a contractor uses dynamite which causes debris to
be thrown onto the land of another and damages the landowner’s house, the landowner

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 may recover damages from the contractor even if the contractor was not negligent and
did not intend to cause any harm. This is called strict liability or absolute liability.

ELEMENTS OF STRICT LIABILITY

In order to claim damages under Strict Liability, it becomes necessary to prove the presence of following
elements-

•Non Natural Use/ Dangerous use of land

•It is necessary to show that the defendant on his land was doing something
1 which was non natural and/ or dangerous.

•The Thing Escapes

•The second requirement demands that in order to claim damages, such
2 dangerous thing must have escaped from the Defendant's Premises.

• Damage to the Plaintiff/ Third person

• It is also necessary to prove that the escaped thing had caused any sort of
3 legal injury/ damage to the plaintiff or any other person.

SOME STANDARD EXAMPLES OF STRICT LIABILITY TORTS

 Defective products (Product Liability)

 Animal attacks (dog bite lawsuits)
 Abnormally dangerous activities

Defective product cases are prime examples of when liability is maintained despite intent. In
lawsuits such as these, the injured consumer only has to establish that their injuries were directly
caused by the product in question in order to have the law on their side. The fact that the
company did not “intend” for the consumer to be injured is not a factor.

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