Nature and Definition of Tort

• Latin word-tortum-twist
• Conduct-twisted, crooked or unlawful
• Wrongdoer violates legal rights vested in another person
• Duty to respect legal rights vested in another person which is
recognized by law
• Criminal law-civil wrongs
• Tort is civil wrong but all civil wrongs are not torts e.g. breach of
contract or trust(non-performance of duty undertaken by party
to contract)
• E.g.Tort of defamation, tort of trespass
•
 Definition
• Tort is civil wrong which is not exclusively breach
of contract or breach of trust
• Civil wrong for which the remedy is common law
action for unliquidated damage….Salmond
• Tortious liability arises from breach of duty fixed
by law…….Winfield
• Infringement of right in rem of a private
individual giving right to compensate to injured
party…Fraser
• Separation of criminal wrongs from Civil wrongs
• Separation of breach of contract or breach of trust
• Remaining wrongs-torts
• Tort- Law of tort is a branch of the law of obligations
• Legal obligation to refrain from harming to another- if harm is done –it need to be repaired or
compensated- not imposed by agreement but by general law
Historically-
No general principle of tortious liability
Kings’s court gave remedies for -various forms of trespass
-direct injuries
-other forms of harm later became redressible eg libel &slander
-different forms of actions developed to redress particular kinds of harm, so that the law of tort was
concerned with a number of recognized kinds of wrong each with distinct requirements and procedure
Case laws have extended liability physical injuries to mental injuries
From intentional harm to harm done negligently( failure to show the standard of precautions which
deemed necessary)
• Law of tort is a collection of circumstances in which the court will
give remedy, by the way of damages for legally unjustified harm
or injury done by one person to another
• Tort is classified-torts involving negligence, torts involving
intention, strict liability(fails to avoid evil consequeces)
• Torts affects-
Person(trespass, negligence), family( reputation-libel and slander),
property( trespass to land or goods), economic rights(deciet)
Remedy –unliquidated but in some cases e.g. to prevent nuisance-
injunction
• Tort is a civil wrong
– Process of elimination
– Same act may result in two wrong- crime and tort
– Both civil and criminal, remedies would concurrently be available
– Same act may amount to two or more civil wrongs, one of which
may be a tort
– Eg ‘A’ delivers his horse to ‘B’ for the safe custody for a week, B
allows the horse to die of starvation, B’s act amounts to two wrongs
one is breach of contract of bailment and other is negligence
– Both are civil wrongs and remedy for both-damaged- Plaintiff can
claim damage either under the law of torts for negligence or for
breach of contract.
 Tort is redressible by an action for
unliquidated damage
• If harm causes it is not possible to undo that
harm e.g. reputation
• Only thing which can be done-to see what is
the money equivalent to the harm by way of
defamation
Unliqidated-liquidated
injunction
 Nature of Tort
• Distinguished from Crime
• There are Wrongs which are placed both in criminal law and law of torts e.g. Assault,
Defamation, negligence, Conspiracy ,nuisance
• For civil liability for civil wrongs- rules of law of torts are applicable
• For criminal liability-rules of criminal law are applicable
• Wrong serious in nature-affecting a large number of members of public-criminal wrong
• E.g. obstruction outside the residential building- private nuisance but in the middle of
public road-public wrong- public nuisance under section 268 IPC
• Rules applicable in tort is different than rule applicable in crime
• Defamation in law of tort-truth is itself a defence but in law of crime defence of truth can
not be taken if the publication was made for public goods.
• In law of tort if party wants to withdraw his case in the middle of case he can do that
• In exceptional cases law does not permit settlement in criminal cases between wrongdoer
and aggrieved party
• Compensation-law of tort
• Purpose of imposing punishment of imprisonment and fine under
criminal law to prevent society by preventing the offender from
committing wrongs.
• In criminal law in exceptional cases as provided by section 357
Cr.P.C. the court may order compensation out of fine
• Compensation may be less than loss-file civil case-court shall take
into account any sum paid or recovered as compensation under
Section 357
• Law of Tort-Execution of decree under section 57 Cr. P.C.
• Same facts may constitute both crime and tort-concurrent
• E.g. A digs ditch in the middle of public road-passer by falls-tort of
nuisance against A and public nuisance under criminal law
 Tort and Breach of Contract
• Breach of duty imposed by law of tort
• Duties are undertaken voluntarily-agreement –violation-breach of contract
• Eg Radio set
• Contract-Duty is based on the privity of contract A owes duty towards B and
vice versa
• Stanger to contract-cannot sue
• Danoghue v. Stevenson-Manufacture of drinks owes duty of care to every
consumer of his product
• Same facts may result in breach of contract and negligence
• Action for only one wrong e.g.-Negligence of driver- Contract with Railway
authorities and consumers for safe carriage
• Implied contract e.g. horse to die-option to claim under law of tort or contract
• Damage in contract may be liquidated
 Privity of Contract and tortious liability
• A-B Contract
• As result of breach of contract by ‘A’-injury to ‘C’ who is stranger to contract –can sue ?
Answer is yes
• Before taking action by C in tort he has to show the privity of contract or not?
• Answer is no need to show
• Danoghue v. Stevenson-consumer succeeded in taking independent action-even the contract
is between manufacture and retailer not between manufacture and consumer
• No doubt it is well established principle- only party to contract can challenge the breach of
contract but if injury or loss to third -can independently take an action for negligence as tort
• Eg negligence of driver-(contract between railway authorities and consumers for safe
carriage)
• Klaus Mittelbachert v. East India Hotels Ltd.-Contact between Lufthansa( German Airlines) and
Hotel Oberoi Inter-continental of delhi-for stay of the crew of Lufthansa as guests in the
hotel- plaintiff took drive in swimming pool-defective design-paralyses for 13 years and died-
held –could sue under law of contract as a beneficiary of contract or under law of tort for
negligence
 Tort and quasi contact
• ‘A’ gains advantage or benefit for which ‘B’ was entitled or by such advantage other person
suffers loss. Law compels the A to compensate B
• Law is implies contract between A and B in actual there is no contract
• E.g. tradesman leaves goods at B’s house by mistake B treats goods as his own- B is bound
to pay A
• E.g.- A and b jointly owes 100 rupees to C, A gives 100 rupees to C and B also pays 100
rupees –C is bound to repay the amount to B
• Quasi-contract gives rights with respect to money only- generally liquidated sum of money
• Law of tort-right to damage and other remedies also(injunction)-Moreover claim for
damages in law of torts is always-unliqidated sum of money
• Choice is with party to take actin in tort to take an action by suing wrongdoer in quasi-
contract to recover the value of the benefit obtained by wrongdoer-if he opted so any he
waived his right to take in another
• Conversion, trespass to land or goods, deceit, action for extorting money by there can be
waived but defamation and assault –not waived
• Demand money –equivalent to unjust benefit made by the defendant
 Law of tort or law of torts?
• Winfield gave theory of law of tort- A any person injures B, B
can sue A in tort whether the wrong has any name or title or
not like assault, battery etc. supported in case of Abhay v.
White- creation of new torts by Court e.g.-tort of deceit –
originated in case Pasley v. Freeman, Strict liability in Ryland v.
Fletcher, tort of intimidation in Rooks v. Bachand
• Salmond-(pigeon-hole theory) no general principle of liability
arises only when the wrong is covered by any one or the other
nominate torts. If plaintiff can place his wrong in any of the
pigeon holes-labelled tort- succeeded- If there is no pigeon hole
in which the plaintiff’s case could fit in –defendant-not
committed wrong
 Essential of a Tort
• 1-act or omission-made omission in performance
of duty e.g. entering on ;land of another without
legal justification-result in tort of trespass,
publishing a defamatory statement-defamation
• 2-Legal damage-to be successful in legal action
for tort plaintiff has to prove legal damage
• If there is violation of legal right without causing
damage then no need to proof of any
damage(injuria sine damno)
 Injuria Sine Damino
• Violation of legal right without causing
damage-actionable even no damage has been
caused eg trespass(actionable per se)
• Abhay v. White-defendant-returning officer in
Parliamentary election-refused wrongfully to
take vote of plaintiff.- not loss to the person to
whom he wanted to vote as that party won-
not loss caused to plaintiff but violation of
right of plaintiff to cast vote-actionable.
 Injuria Sine Damno-Loss suffered by plaintiff is not relevant to
take action-it may be relevant to measure damage
• Question is how much compensation?-In such a case, generally
nominal damage may be awarded
• Bhim Singh v. State of J & K-MLA of J&K was detained wrongfully
by the police when he was going to attend Assembly Session. He
was not produced to Magistrate within the requisite period-
violation of constitutional right –article 21 of the constitution has
been violated. By the time the petition was decided by the SC he
was released -even loss was not suffered in relation of not
attending Assembly Session but he was awarded 50000 as
exemplary damages(punitive or to deter defendant)
• Damnum Sine Injuria
• Causing damage without the infringement of legal right
• unless infringement of legal right –no actionable eg Rival schools by defendant but
not actionable even loss to the plaintiff(Gloucester Grammer School)
• Town Area Committee v Prabhu Dayal-Plaintiff constructed illegal building –
defendant (Municipal Corporation) demolished –held not liable –not injury to
plaintiff
• P. Seetharamayya v. Mahalaksh –four defendants built a fence upon their land to
prevent damage from river. Fifth defendant acted independently to put up bund on
his land. Because of act of defendants the rainwater flowed to plaintiffs’ land-
caused damage to them-file case for permanent injunction and damage for loss
Held owners of land have right to build a fence upon his own land to prevent
damage-if overflow of water is diverted to the neighbour land-caused damage-no
action was taken. But water has already entered on land he cant divert to others land.
The laws doesn’t permit him to cast it upon adjoining land
• Vishnu Datt v. Board of H S& Inter Mediate education UP-student
detained because of shortage of attendance. The court found this
illegal on the ground of the registers of the college are not maintained
according to the regulation of the Board-As the result of this he lost
one year-not entitled for compensation.
• Town Area Committee v. Prashu Dayal-Plaintiff constructed 16 shops
on the old foundation
For this permission was not required to erect building under section 180
of UP Municipal Act &no notice was sent to Corporation-Defendant(MC)
demolished –challenged an action of MC on the ground of malafide
intention
Held-no injuria-If construction is illegal by plaintiff -demolition would not
amount to causing injuria to the owner of the property.
 Ubi jus ibi remedium
• It is a Latin maxim which means that where there is a wrong, there is a
remedy. If any wrong is committed then the law provides a remedy for that.
The maxim can be phrased as that any person will not suffer a wrong
without a remedy, it means that once it is proved that the right was
breached then equity will provide a suitable remedy. This principle also
underlines the fact that no wrong should be allowed to go without any
compensation if it can be redressed by a court of law. The law presumes that
there is no right without a remedy
• In Maretti v. William, the plaintiff was restrained to withdraw the money
from the defendant's bank in spite of the presence of sufficient amount of
funds in his account. So there was the violation of the legal right of plaintiff.
The court applied the maxim ubi jus ibi remedium, and held that the plaintiff
is entitled to get the damages because of the infringement of his legal right.
• Mental element in Tortious Liability
• Under criminal law –mens rea –necessary element. In tort it is not so
• In tort like assault, battery, false imprionment, deceit, malicious prosecution
and conspiracy-the statement of mind of person is relevant-to ascertain
liabilty
• For acertaining the liabilty of person for tort of negligence-conduct of
person ios compared with the conduct of resonable man-failure to exercise
due care
• Mental element is relevant in another way-damage caused due to inevitable
accident-no intention for committing wrong-defendant –plea innocent
• In case of defamation or conversion-innocence of defendant is not
considered-defendant says not done with guilty mind-not considered-mental
element is irrelevant
• Malice in Law and Malice in Fact
• Malice in law-willful act done without any just cause or excuse
• Malice-in-Fact refers to performance of an act which may be legal, but with ill-will,
or hatred, or bad intention.
• In tort as general rule motive is quite irrelevant in determining liability under law of
torts
• South Wales Mines’ Foundation v. Glamorgan Coal Co.-Plaintiff-owner of coal mines-
Defendant-a miners’union- plaintiff filed case for inducing its workers for breach of
employment by ordering them to take certain holidays
• Plea taken by defendant intension of defendant-not malice-object was to keep up
price of coal up
• Malice is irrelevant in this case.
• Town Area Committee v. Prabhu Dayal-illegal construction by plaintiff-demolished
by MC(defendant) –the court held if the demolition is valid- cant make invalid on the
ground of malice intention
• Liability without fault
• Mental element is not considered-if act is
wrong it is wrong e.g. defamation(my
intention was not to commit this wrong is not
considered)
 General defences
• Volenti non fit injuria
• Plaintiff suffers harm with his own consent-defence for defendant e.g. A invites B to his
house-no trespass e.g.- surgery-no cause of action against surgeon
• Consent may be express or implied
• E.g. players in cricket or football is deemed to be agreed to any hurt which may be likely in
the normal course of game.
• But one player deliberately hits another-deliberate harm-wrong
• Hall v. Brookland- auto racing club-car race conducted by the defendant. Plaintiff was
injured-car was thrown accidently into the spectator’s enclosure-consent implied for hurt-
no action
• Consent –free. It is necessary to show-plaintiff’s consent- free
• Consent is not free when it is obtained by fraud or under compulsion or under some
mistake impression-not defence for act
• E.g. invite person to your house-not trespass
• E.g. guest is requested to sit in the drawing room but he enters the bed room-liable for
trespass
• E.g. postman has implied consent of resident to
enter. He can enter the particular place to deliver
the dak but if he enters the room of house-
trespass.
• Lakshmi Ranjan-women aged 40 noticed
development of lump in her breast during surgery-
utrus was removed without any justification.
Patient’s consent for operation-did not imply her
consent to remove utrus. Deficiency in service.
• Consent obtained by fraud-not good defence
Fraud vitiated the consent
Consent must be free-if obtained by
fraud/compulsion/under some mistaken impression-
consent is not free-no defence
E.g. invites person to your house-no trespass but visiter
goes to the place for which no consent is given –trespass
Plaintiff-not fully aware of the nature of act
Rv. Williams-rape was committed under the pretence the
act was an operation to improve the her voice-
• Consent obtained under compulsion
• Consent is given under the circumstances when the person does not have freedom of choice-
not consent-no defence. Person compelled by some situation knowingly undertake some risky
work for which he would have choice he would not have undertaken that work.eg master
servant relationship-servant may sometimes be faced with the situation-either to accept risky
work or losing the job-person is not position to choose freely-no consent- no defence.
• Mere knowledge does not imply assent
• For volunti non fit injuria to apply two points have to be proved
• (a)Plaintiff knew that the risk is there
• (b)He, knowing the same, agreed to suffer the harm
• If first point is present-only knowledge-no defence claimed by defendant-no consent to harm
• Smith v. Baker-plaintiff(workman)-employed defendant on working drill-cutting a rock. With the
help of crane-stones conveyed from one side to other side-every time crane passes over the
plaintiff’s head. While he was busy in his work-stone fell from crane and injured him.
Employers were negligent in not warning at the moment of recurring danger. So only
knowledge about risk without assumption
• Of recurring danger –no defence
• Negligence of defendant-act must be same to which consent has been
given e.g. surgeon negligence, deliberately hit in game
• Limitation on the scope of the doctrine-volunti non fit injuria-curtailed
(a) in rescue cases (b) by the unfair contract terms Act,1977
• In rescue cases-exception to this maxim-plaintiff voluntarily encounters
a risk to rescue somebody from an immediate danger created by the
wrongful act of defendant-no defence by defendant
• Haynes v. Harwood-defendants’s servant left a two-horse van
unattened in the street. One boy threw stone-they bolted-causing grave
danger to women and children on the road. A police constable on
seeing the same managed to stop the horses-in doing so he suffered
harm-no maxim applied
• The question is the rule laid down in Haynes
case is also applied in rescue of property of
defendant. Answered in affirmative in Hyett v.
Great western Railway Co.-plaintiff injured to
save defendant’s railway cars from fire-
occurred due negligence to defendant-
defendant was held liable-no defenace
• UNFAIR CONTRACT TERMS ACT, 1977(England)
• Unfair Contract Terms Act, 1977 limits the right of a person to restrict or his
liability resulting from his negligence by a contract term, or by notice,
Section 2 of the Act contains the following provisions in this regard:
•   “Negligence liability- 1. A person cannot by reference to any contract term
or to a notice given to a person generally or to particular persons exclude or
restrict his liability for death or personal injury resulting from negligence.
• 2. In the case of other loss or damage, a person cannot exclude or restrict
liability for negligence, except insofar as the term or notice satisfies the
requirement of reasonableness.
• When a contract term or notice purports to exclude or restrict his liability for
negligence, a person’s agreement to or awareness of it is not of itself to be
taken as indicating his voluntary acceptance of any risk”
• Subsection (1) puts an absolute ban on a person’s right to exclude his liability for death
or personal injury resulting from negligence, by making a contract or giving a notice to
that effect. It means that even if the defendant has procured plaintiff’s consent (by an
agreement or a notice) to suffer death or personal injury resulting from the plaintiff’s
negligence, plaintiff’s liability is not negatived thereby.
• Subsection (2) Deals with cases where the damage caused to the plaintiff is other
than  death and personal injury. In such a case, exclusion of liability by a contract term
or notice is possible only if the term of notice satisfies the requirement of
reasonableness.
• Subsection (3) Further provides that even in those cases where the defendant could
exclude or restrict his liability by a contract term or notice, the plaintiff’s agreement or
awareness or agreement about such agreement or notice, is not of itself to be taken as
indicating his voluntary acceptance of any risk. It means that not merely an agreement
or notice may be enough to restrict the defendant’s liability, something more, for
instance, further evidence about the genuineness of the plaintiff’s consent, and
voluntary assumption of the risks must also be proved.
 INEVITABLE ACCIDENT

Accident means an unexpected injury and if the same could not have been foreseen and avoided,
in spite of reasonable care on the part of the defender, it is the inevitable accident. It is, therefore,
a good defense if the defended can show that he neither intended to injure the plaintiff nor could
he avoid the injury by taking reasonable care.
It may be noted that the defense of the inevitable accident is available when the event is
unforeseeable and consequences unavoidable in spite of reasonable precautions.
Assam State co. v. Anubha- premises were let out to the defendant(tenant). Tenant requested to
repair faulty electric wires-no action was taken by landlord (plaintiff)-accidental fire in premises-no
liability of defendant.
Shridhar Tiwari v. U.P. State road transport corporation-Bus ‘A’ belonging to the U.P.S.R.T.
corporation reached near the village-a cyclist-came in front of bus. Raining road-wet-driver applied
breaks –bus skidded-as a result rear portion of bus ‘A’ hit the front portion of bus ‘B’ coming from
opposite direction-acident occurred despite of due care on the part of both drivers-inevitable
accident.
• Brown v. Kendall-dogs of plaintiff and defendant-fighting.
In order to separate them defendant hit accidentally the
plaintiff in his eye-standing nearby-result of pure accident-
no actionalbe
• Padmavati v. Dugganaika-two strangers took lift in the
jeep.one of the bolts fixing the right front wheel of the
jeep to the axle gave away and wheel flew away-got
injuries and one of them(strangers) died.no evidence-to
show that the defect was a patent one and could have
been detected by periodical check up-defendant(driver of
jeep) not held liable.
 Act of God

• Act of God serves as a good defence under the law of torts. It is

also recognized as a valid defence in the rule of ‘Strict Liability’
in the case of Rylands v. Fletcher[28].
• The defence of act of God and Inevitable accident might look the
same but they are different. Act of God is a kind of inevitable
accident in which the natural forces play their role and cause
damage. For example, heavy rainfall, storms, tides, etc. 
• Essentials required for this defence are:
• Natural forces’ working should be there.
• There must be an extraordinary occurrence and not the one
which could be anticipated and guarded against reasonably.
 Continued…………..
• Working of natural forces
• In Ramalinga Nadar v. Narayan Reddiar  the unruly mob robbed all
the goods transported in the defendant’s lorry. It cannot be
considered to be an act of God and the defendant, as a common
carrier, will be liable for all the loss. It is only those acts which can be
traced to natural forces and which arte nothing to do with the
intervention of human agency-acts of god
• In Nichols v. Marsland-the defendant created an artificial lake on his
land by collecting water from natural streams. Once there was an
extraordinary rainfall, heaviest in human memory. The embankments
of the lake got destroyed and washed away all the four bridges
belonging to the plaintiff. The court held that the defendants were
not liable as the same was due to the Act of God.
 Continued………
Occurrence must be extraordinary
• Some extraordinary occurrence of natural forces is
required to plead the defence under the law of torts.
• In Kullu lal v. Hemchand -the wall of a building collapsed
due to normal rainfall of about 2.66 inches. The incident
resulted in the death of the respondent’s children. The
court held that the defence of Act of God cannot be
pleaded by the appellants in this case as that much rainfall
was normal and something extraordinary is required to
plead this defence. The appellant was held liable.
 Necessity

• If an act is done to prevent greater harm, even though the act was done intentionally, is not
actionable and serves as a good defence.
• It should be distinguished with private defence and an inevitable accident.
• The following points should be considered:
• In necessity, the infliction of harm is upon an innocent whereas in case of private defence
the plaintiff is himself a wrongdoer.
• In necessity, the harm is done intentionally whereas in case of an inevitable accident the
harm is caused in spite of making all the efforts to avoid it. 
• For example,  performing an operation of an unconscious patient just to save his life is
justified. 
• In Leigh v. Gladstone -it was held that the forcible feeding of a person who was hunger-
striking in a prison served as a good defence for the tort of battery. 
• In Cope v. Sharpe-the defendant entered the plaintiff’s premises to stop the spread of fire
in the adjoining land where the defendant’s master had the shooting rights. Since the
defendant’s act was considered to be reasonably necessary to save the game from real and
imminent danger-to prevent greater harm so he was held not liable for trespass.
 Continued……….
However I n the case of Carter v. Thomas, the defendant
who entered the plaintiff’s land premises in good faith to
extinguish the fire, at which the fire extinguishing workmen
were already working, was held guilty of the offence of
trespass- no defence of necessity
• In Kirk v. Gregory, A’s sister-in-law hid some jewelry after
the death of A from the room where he was lying dead,
thinking that to be a more safe place. The jewellery got
stolen from there and a case was filed against A’s sister-in-
law for trespass to the jewellery. She was held liable for
trespass as the step she took was unreasonable. 
 Statutory authority

• If an act is authorized by any Act or statute, then it is not actionable even if it would
constitute a tort otherwise. It is a complete defence and the injured party has no
remedy except for claiming compensation as may have been provided by the statute.
• Immunity under statutory authority is not given only for the harm which is obvious
but also for the harm which is incidental. 
• In Vaughan v. Taff Valde Rail Co.- sparks from an engine of the respondent’s railway
company were authorized to run the railway, set fire to the appellant’s woods on the
adjoining land. It was held that since they did not do anything which was prohibited
by the statute and took due care and precaution, they were not liable. 
• In Hammer Smith Rail Co. Brand, the value of the property of the plaintiff
depreciated due to the loud noise and vibrations produced from the running trains
on the railway line which was constructed under a statutory provision. The court held
that nothing can be claimed for the damage suffered as it was done as per the
statutory provisions and if something is authorized by any statute or legislature then
it serves as a complete defence. The defendant was held not liable in the case.
 Continued……..
• In Smith v. London and South Western Railway Co. , the servants of a railway company negligently
left the trimmings of hedges near the railway line. The sparks from the engine set fire to those
hedges and due to high winds, it got spread to the plaintiff’s cottage which was not very far from
the line. The court held that the railway authority was negligent in leaving the grass hedges near
the railway line and the plaintiff was entitled to claim compensation for the loss suffered.
• Absolute and conditional authority
• The authority given by a statute can be of two types:
• Absolute
• Conditional
• In the case of Absolute authority, there is no liability if the nuisance or some other harm necessarily
results but when the authority is conditional it means that the same is possible without nuisance or
any other harm. 
• In the case of Metropolitan Asylum District V. Hill, the hospital authorities i.e. the appellants were
granted permission to set up a smallpox hospital. But the hospital was created in a residential area
which was not safe for the residents as the disease can spread to that area. Considering it a
nuisance an injunction was issued against the hospital. The authority, in this case, was conditional.
 Vicarious Liability
• Relationship
• In the course of employment
• Authorised act- wrongful mode of during authorised act
• Act is Outside the course of employment-master not liable(driving of bus
by conductor which was not authorised to do-master not liable)
• If servant himself negligently delegates his authority and instead of
himself carefully performing the duty allows the same to be negligently
performed by someone else-master will be held liable e.g. driver himself
permits another to drive
• If employer forbids his servant from doing certain act it does not mean
that servant is not acing in the course of employment (employer
expressly refused his driver not to take part in race with or destruction to
other omnibuses)
• Defendant’s driver tried to obstruct a rival omnibus-accident-driver negligent in
driving even express prohibition but still done during the course of employment.
• However, doing an act which is altogether different from the purpose for which
the servant has been engaged is outside the course of employment and if the
same is also prohibited-master is held liable.
• Lift to stranger(unauthorised passenger) even not authorised-master is held
liable
P & H High Court in jiwan Das Roshan and Rajasthan High Court in Premwati v,
State od Rajasthan-master not liable for unauthorised lift. Howerver Gujarat High
Court in Mariyan Jusab case and M.P. High Courts in Bhaiyalal case –unauthorised
passenger should not necessarily mean the act of driver is outside the course of
employment-more convincing decisions. But driver takes his own family in master’s
car for picnic is totally unconcerned with master’s business-outside the course of
employment-master not liable
• Exception to master liability is the rule known
as doctrine of common employment-this rule
applied in 1837 in Priestley v. Flower and
developed in 1855 in Hutchinson & New
Castle
 Vicarious liability
• Generally, a person is liable for his own wrongful acts and one does not incur
any liability for the acts done by others. In certain cases, however, vicarious
liability, that is the liability of one person for the act of another person, may
arise. In order that the liability of A for the act done by B can arise, it is
necessary that there should be certain kind of relationship between A and B,
and the wrongful act should be, in certain way, connected with that
relationship.
• an exception to the general rule that a person is liable for his own acts only. It
is based on the principle of qui facit per se per alium facit per se, which means,
“He who does an act through another is deemed in law to do it himself”.
• he common examples of such a liability are:
(1) Liability of the principal for the tort of his agent;
(2) Liability of partners of each other’s tort;
(3) Liability of the master for the tort of his servant.
 Vicarious Liability of Master for torts by Servant

• In a Master-Servant relationship, the master employs the services of the servant and he
works on the command of master and thus a special relation exists between the two and in
case of a tort committed by the servant, his master is also held liable.
• There are many cases in which the servant does an act for his master and thus in law, it is
deemed that the master was doing that act himself, therefore if the servant commits an
unlawful act the master will also be held liable for the same. This liability of the master is
based on the following two maxims
• 1.Qui facit per alium facit per se: – It means that whenever a person gets something done by
another person then the person is viewed to be doing such an act himself.
• Illustration: If A is the owner of many trucks and employs drivers to drive them for the
purpose of trade and in case one of his drivers gets into an accident because of his rash
driving, then even though A did not drive the truck himself, he will be liable for the accident.
• 2. Respondant Superior: – It means that the superior should be held responsible for the acts
done by his subordinate.
• These two maxims have played a significant role in the development of the law of vicarious
liability of the master.
 Essentials of Vicarious liability in Master-Servant Relationship

• These essential conditions have to be followed for the vicarious liability of master to arise: –
• 1. The servant has committed an act which amounts to a tort.
• 2. Such a tortious act is committed by the servant during the course of his employment under
the master.
• Reasons for liability of the Master
• There are several reasons behind holding the master liable for the acts of his servants which
are: –
• An act which is committed by the servant is considered to be done by the master through him
and therefore in the law of torts, it is assumed that if any wrong is done by the servant, it has
been committed by his master indirectly and so the master is held liable for these wrongs.
• The master is in a better financial position as compared to his servant and thus in case of any
loss caused by the tortious act of the servant, the master is better suited to pay off the damages
to the victim of the act. Also, since the master is made liable he makes sure that all reasonable
care and precautions are carried so that he can avoid such liability.
• When a servant does any act, the benefit from such an act is enjoyed by the master and thus
for the liability arising out of the servant’s act, the master should also shoulder that liability.
 Test for Determining Master-Servant
Relationship
• For the determination of a Master-Servant relationship, certain tests have been developed
over a long period of time.
• Traditional View – Control Test
• As per this test, for the determination of a master and servant relationship, it should be seen
whether the master has the power to not only instruct what should be done but also the
manner of doing the act and if such power exists then as per this test, the master and servant
relationship exists between the two.
• Illustration: A is the owner of a big area of land on which farming activities are carried out
and he has hired many workers for farming. A, not only instructs them how to do their jobs
but also how to do it. Here, by the test of control, the relation between A and his employees
is established as that of a master-servant.
• Modern View
• The old Control test is not applicable as an exhaustive test because in cases of work requiring
skill such as a doctor working in a hospital, the owner of the Hospital cannot instruct the
doctor on how to treat a patient and can only instruct him to treat patients. Thus certain
other tests have been developed for determining the Master and Servant Relationship.
• In the case of Stevenson Jordan & Harrison Ltd. V Macdonald
& Evans (1952) 1 TLR 101, the test of an integral part of the
business was applied. Here, a contract of service was held to be
a contract for such work which is an integral part of the
business and a contract for service was held to be a contract
for such work which is not an integral part of the business.
• Illustration: In an IT company the programmers are the
employees of the company and there is a master-servant
relationship but if the company has hired catering services, the
company does not have a master-servant relationship because
the act of providing food is not an integral part of an IT
company.
Multiple Test
• This test provides that people who are in a contract of service are
deemed to be employees whereas the people who are in
contract for service are independent contractors. In the case of Ready
Mixed Concrete v Minister of Pensions and National Insurance (1968)
2 QB 497, three conditions were laid down for a contract of service
• The servant agrees to provide his skill and work to the master for
performing some service in exchange for wages or some other
consideration.
• He agrees to be subjected to such a degree of control so as to make the
person his master in performance of his work.
• The other provisions of the contract are consistent with this provision
of being a contract of service.
• This test also includes other important factors that are used to
determine the master-servant relationship such as who owns the
tools being used for the work, is the employee paid wages monthly
or on a daily basis and all other relevant factors.
• Thus the old view of using Control test is no longer the only
method of determining the relation of master and servant as it has
been realized that in the present complex world where there are a
wide number of factors which affect the process of determining the
relation between the employee and the employer, it is not possible
to use just one test and thus the various aspects of a case are seen
to determine the nature of the relationship and to decide whether
such a relation is that of master and servant or not.
Difference between Servant and Independent contractor
• A servant and an independent contractor both do the work at the behest of
another person and thus what shall be done is not decided by them but by some
other person and thus on the face of it appears, that both are in the same
category and a master should be liable for the torts committed by both of them
but there is a difference between the two which separates them and
consequently, while, in case of tort by servant, the master is liable but in case of
independent contractor the master cannot be held liable.
• In case of a servant there is a contract of service which means that along with
instructing what task should be done by the servant, the master also has the right
to instruct the manner in which that act has to be done and thus the servant does
not have autonomy in the performance of his duties.
• Illustration: P is the owner of a newspaper in which many editors are working.
Here P as the owner has the right of telling them which news should be covered
and how it should be written.
 Cont…………
• Whereas in the case of an independent contractor there is a contract for
service which means that he can only be instructed as to what should be done
but how to do the work is left at his will and he does not take any instructions
from the master.
• Illustration: If P is the owner of a newspaper and his machinery is damaged and
he calls J to repair it. Here P can instruct him what to do but how to repair the
machinery is left to be done by J without any instructions from P.
• Various ways in which liability of Master arises
• A master becomes liable in the following situations:
• Wrong done as a natural consequence of an act by Servant for Master with due
care
• If the employee does an act which is done in pursuance of the instructions of the
master, then the master will be held liable for any wrong which arises out of such
an act even if all due care is taken by the employee in discharging his work.
 Wrong due to Negligence of Worker

• A master is also liable for an act of servant which he does negligently or fails to take due
care in carrying out.
• In Pushpabai Purshottam Udeshi & Ors. v. Ranjit Ginning & Pressing Co. (P), deceased
was travelling in a car driven by the manager of the respondent company and it met
with an accident as a result of which he died. The dependents of the deceased filed a
claim and the tribunal allowed damages but on appeal to the High Court, it was set
aside on the grounds that the accident does not make the respondent company liable.
But the Supreme Court in its judgement overruled the judgement of the High Court and
held that from the facts of the case it was clear that the accident had occurred due to
the negligence of the manager who was driving the vehicle in the course of his
employment and therefore, the respondent company was liable for his negligent act.
• Illustration: If H works as a house cleaner for K then there is a master and servant
relationship between them but, if H instead of cleaning the house decides to cook food
even though he has only been hired for cleaning the house and due to his negligence
causes a fire which also causes loss to K’s neighbour L, then K, will not be liable because
H did an act which was outside the course of his employment.
 Wrong by excess or mistaken execution of a lawful authority

• For making the master liable in such a case it has to be shown that: –
• The servant had intended to do an act on behalf of his master, which he was authorized to do.
• The act would have been lawful if it was done in those circumstances which the servant mistakenly
believed were true or if the act would have been lawful if done properly.
• In Bayley v Manchester S&L Railway (1873) LR 8 CP 148, a porter of a railway company while
working mistakenly believed that the plaintiff was in the wrong carriage even though he was in the
right one. The porter thus pulled the plaintiff as a result of which the plaintiff sustained injuries.
Here, the Court held the railway company vicariously liable for the act of the porter because it was
done in the course of his employment and this act would have been proper if the plaintiff was
indeed in the wrong carriage.
• In Anita Bhandari & Ors. v. Union of India, The husband of the petitioner went to a bank and while
entering inside it, the cash box of the bank was also being carried inside and as a result, the security
guard in a haste shot him and caused his death. The petitioner had claimed that the bank was
vicariously liable in the case because the security guard had done such act in the course of
employment but the bank had contended that it had not authorized the guard to shoot. The Court
held the bank liable as the act of giving him gun amounted to authorize him to shoot when he
deemed it necessary and while the guard had acted overzealously in his duties but it was still done
in the course of employment.
 Wrong committed willfully by a servant with the intention of serving the purpose of the master

• If a servant does any act willfully, recklessly or improperly then the master will
be held liable for any wrong arising out of such act, if such an act is done in the
course of employment.
• In Limpus v. London General Omnibus Co. (1862) EngR 839, the driver of the
defendant company, willfully and against the express orders not to get involved
in racing or to obstruct other omnibuses, had driven to obstruct the omnibus of
the plaintiff. In the case, the Court held that the defendant company was liable
for the act of driver because the driver’s act of driving the omnibus was within
the scope of the course of employment.
• In Peterson v. Royal Oak Hotel Ltd. (1948) N.Z.I.R. 136, The plaintiff was a
customer who on being intoxicated was refused further drinks by the barman,
who was employed under the respondent and thus the plaintiff threw a glass at
him. The barman took a piece of the glass and threw it at him which hit his eye.
The respondent hotel was held liable due to the act of the barman who had a
master-servant relation with them.
 Wrong by agent (Fraudulent act)

• A master can also be held liable for any fraudulent act of the servant.
• In Lloyd v. Grace Smith & Co. (1912) A.C. 716, the plaintiff was a widow who
owned 1000 pounds as dues on a mortgage and a cottage. She went to the
manager of the defendant, which was a firm of solicitors, and she asked for
his advice to get richer. The manager told her to sell her cottage and to call
up the amount of mortgage. She authorized the manager to sell the
property and to collect her money but he absconded with the money. Thus,
she sued the defendant company. It was held that the defendant was liable
for the fraudulent act of the manager because even a fraudulent act is not
authorized, the manager was authorized to take her signature and thus it
was within the course of employment.
• Illustration: If A goes to a bank and deposits a check with C, an employee of
the bank and C fraudulently transfers that amount to his wife’s account.
Here for the fraudulent act of C, the bank will be liable.
 Vicarious liability of State
• The whole idea of vicarious liability of the State for the torts
committed by its servants is based on three principles. (i) Respondent
superior (let the principal be liable) (ii) Qui-facit per alium facit per se
(he who acts through another does it himself) (iii) Socialization of
compensation. Article 300 of the Constitution lays down the tortuous
liability of Indian government.
• Section 176 of the Government of India Act, 1935 refers, in turn, to
Section 32 of the Government of India Act, 1915 which, in turn, refers
to Section 65 of the Act, 1858. Section 65 provided that Secretary of
State-in-council would be liable to the same extend as the East India
Company was previously liable. In order to know the extent of
liability of the State there is need to know the liability of East India
Company.
• Sovereign and Non-sovereign Functions:
• Limited liability of the State for tortious acts of its servants while
discharging non-sovereign or commercial functions has been
restricted by the judiciary by holding that the State will not be
liable in cases where:
•  
• (a) The tortious acts are dene under the authority of a Statute or
• (b) Where the tortious acts though done in tire course of
employment, has not been ratified by the State, and
• (c) Where the State has not derived any benefit out of the
tortious acts of the employee.
• The classic case of Peninsular and Oriental Steam Navigation Company v.
Secretary of State decided in pre-independence India highlights this aspect. In
this case the P & O Company made a claim for damages for injuries caused to
its horse by the negligence of some workmen at the Government Kidarpur
Dockyard. The Bombay High Court ruled that the Secretary of State would be
liable for damages if the negligent act of the servants was done in the exercise
of non sovereign act. The liability of the Company could arise only in respect of
its trading functions in exercise of non- sovereign powers. The maintenance of
dockyard could be done by a private person also and hence was a non-
sovereign function. The rule perpetrated by this case was that in exercise of
sovereign powers, the State shall not be liable. In its sovereign capacity, it was
exempt from any tortious liability. Sovereign functions meant those activities
which only the State could undertake; private parties could not take up those
activities e.g. Railways, Armed Forces, Law and Order and the like. (1861)
5Bom HCR APP 1.
•  
• The Judiciary has also not been able to evolve a clear test to determine the character of
a function as a sovereign and non-sovereign. The efficiency of the law laid down I State
of Rajasthan v. Vidyawati case- one pedestrian was fatally knocked down by a
government jeep owned and controlled by the State of Rajasthan for the official use of
the Collector when driver was returning to the residence of the Collector after having
the jeep repaired from the workshop. It caused the death of that pedestrian. The widow
of pedestrian filed the case for compensation against the State of Rajasthan for
negligent and rash driving of its employee and in this case State was held liable. The
State claimed immunity on the ground that the act was committed in exercise of
sovereign functions. The court however took the view that the negligent act in question
was not connected to sovereign functions at all. But at that time there was a failure on
the part of state to establish that there was need to keep jeep in proper condition for
smooth exercising of sovereign functions.
• Kasturilal v. State of Uttar Pradesh in this case the Court regarded maintenance of law
and order as a sovereign function and no remedy would lie against the State
• M. C. Mehta v. Union of India. The measure of compensation must be
correlated to the magnitude and the capacity of the enterprise because such
compensation must have a deterrent effect.
• M.P. Chironji case-question was before the Court relating to the payment of
damages for the loss caused by the lathi-charge of the police in a situation
where it was unauthorised and unwarranted by law. It was alleged police
resorted to lathi charge wilfully and without any reasonable cause and thus
damaged the plaintiff’s property. The claim rejected- function of state to
regulate processions and to maintain law and order is a sovereign function
• In Satyawati case- the Delhi High Court held that carrying of a hockey team
in a military truck to the Air Force Station to play a match is a sovereign
function
• Sugrabai case-the transporting of military equipment from workshop of the
Artillery School is not a sovereign function
• Ramchandra Gunda-that the construction of a reservoir by the State for
the purpose of supplying drinking-water is not a sovereign function.
• Union of India v. Harbans Singh it was held that no damages could be
recovered when a person was killed by rash and negligent driving of a
military truck carrying meals for military personnel on duty in the forward
area is a sovereign function.
• However the same High Court in Union of India v. S M T Jasso case came
to the conclusion that the carrying of coal to the Army Headquarters is not
a sovereign function. In view of above facts the need for the development
of a more viable principle to determine governmental accountability
cannot be overemphasized a comprehensive legislation on the subject is
the only right answer.
• Saheli case- Saheli had filed a writ against the govermnet for compensation