Legal Aptitude 7

Law of Torts-I
Law of Torts

Tort

Tortum (Latin Word)

Conduct that is twisted /
wrong / not straight /
unlawful

• Law says – Do not violate legal rights of other members of the society.

• Deals with claims by private persons against others (individuals, organisations

etc).
Law of Torts
Definition: A Tort’ is a civil wrong for which you get unliquidated
damages.
“Liquidated
“Unliquidated Damages”
Damages”
“Civil Wrong”: The money equivalent to the
compensation
Committing an Injury damage suffered (i.e. Damage) as
previously
– violating someone’s a result of the Injury – not
determined or
legal right determined – to be decided by the
agreed by the
Court
parties.

What is an Injunction?
An order by the Court – Defendant ordered to stop committing the
Tortious Act.
Eg: Your neighbor wants to build a wall blocking the road. You can go to the court
seeking an order of Injunction.
Civil vs. Criminal Wrongs

Criminal Wrongs
Civil Wrongs

• More Serious
• Less serious • Deals with offences against society
• Deals with private rights and duties as a whole
of individuals • Brought by State (Prosecution)
• Brought by individuals (Plaintiff) • Cr. Prosecution
• Civil Suit • Punishment
• Damages • Eg: Murder, theft
• Eg: Nuisance, Negligence
How is a Tort Committed
1. Act or Omission (A or O) or part of the Defendant
• Act – doing something Defendant was not supposed to do
• Omission – didn’t do something Defendant was supposed to do

2. This A or O must cause injuria to the Plaintiff

• Injuria – Latin for injury (A or O must violate a legal right of the Plaintiff)

3. Consequent to the injuria Plaintiff may (or may not!) suffer a

damnum
• Damnum – Latin for damage; the injuria may cause some actual harm
but not always necessary (Ex. – Trespass)

4. For this injuria and/or damnum the Plaintiff may recover Damages
• → If there is injury there will be damages
• → Law of Torts protects the rights (i.e protects against injuria)
How is a Tort Committed

May or May Not (!) Suffer Damage

Two Rules

Injuria Sine Damnum: Damnum Sine Injuria:

Violation of a Legal Right Damage caused but no violation
of a Legal Right
but no damage caused
Tort Not Committed (Why?)
Tort Committed(Why?)
(i.e. Injuria absent)
(i.e Injuria caused)
Ex. – Running a Competitive
Ex. – Trespass Business
Various Type of Torts
1. Nuisance

2. Negligence

3. Defamation

4. Malicious Prosecution

5. Trespass
Defences in Torts

1. Volenti Non Fit Injuria

2. Plaintiff is the Wrong Doer

3. Inevitable accident

4. Act of God

5. Act of private defence

6. Mistake

7. Necessity

8. Act under Statutory Authority

Volenti non fit injuria
Definition – When a person consents to the infliction of some harm upon himself
he has no remedy for that in Tort.

• I know there is a risk and agree to suffer consequent harm (Consent – Volenti)
• I indeed suffer the exact same harm to which I consented (Injuria)
• I cannot hold the person who inflicted such harm responsible (Non Fit)

Tricky Areas!!!
Consent must be freely given (forced/defrauded consent will not work)
No agreement to suffer on account of negligence of Defendant
Not applicable to Rescue Cases

Ex. – You go into a burning building to save someone and suffer burn injuries –
person causing fire cannot argue that you knew there was a risk involved and
willingly took that risk (i.e. cannot use VNFI against you)
 Problem
Principle: As per the principle of volenti non fit injuria, a person who is aware of a risk and assumes the risk voluntarily cannot
claim damages if he suffers on account of the risk.

Facts: Nandu, a minor aged 13 years does odd jobs to supplement the family income. Mr. Gupta offers him Rs. 500/- to clear
his plot of land adjoining a sprawling orchard, of thick vegetation. When Nandu asks Mr. Gupta about the possibility of
poisonous snakes on the plot, he tells Nandu that although he had never come across even a scorpion. However, he should
be careful while chopping at shrub roots since the plot was adjacent to the orchard. Nandu, in an attempt to complete the task
before dusk, starts clearing the shrubs and bushes indiscriminately and while he is clearing one of the last few bushes, he is
bitten on his palm by a non-poisonous rat snake and develops sepsis (infection). Nandu sues Mr. Gupta for not providing him
gloves.

• (a) Nandu is barred from claiming damages on account of the principle of volenti non fit injuria.
• (b) Nandu can claim damages since it was the duty of Mr. Gupta to provide him with protective gear.
• (c) Nandu should have been aware of the risk since the plot adjoined the orchard.
• (d) Mr. Gupta is not liable to pay damages to Nandu since he was careless.
Plaintiff-the wrong doer
Definition: No court will help a person whose case is based on an illegal
act.
• I suffer an injury (and damage)
• I say injury was inflicted by the Defendant.
• It turned out that I was myself responsible for the injury and the Defendant had
nothing to do with it.

Tricky Areas!!!
If the cause of injury is Defendant and not Plaintiff this defence will not work.
Defendant is not allowed to do anything just because Plaintiff is the
wrongdoer. (Not applicable to cases of Nuisance)
Ex. – You trespass into my house and I let a LION loose on you (or for that matter
a dog!?
Inevitable Accident

Definition – An unforeseen, unexpected and

unavoidable injury that happened in spite of
reasonable care taken by the Defendant.

Unforeseen Unexpected Unavoidable Tricky Area!!!

Despite Reasonable Care It must be an
absolutely pure
Ex. – You go hunting with your friends, bullets are accident – never
fired and a bullet glances off a tree and hits you presume that if
provided that bullets were not fired negligently or that it is an accident,
firing was not a result of negligence (what’s the it must have
difference?) been inevitable

A splash of mud ruins your new suit as a car drives

by provided the driver did not negligently splashed
the mud.
Problem
Principle: When an injury is caused to a person by an event that could not be foreseen and
avoided despite reasonable care on the part of the defendant, the defence of inevitable accident
can be used.

Facts: Noor, drives a 15 year old lorry and gets it regularly serviced. Once while
he was driving on the highway at a fairly high speed, the engine of the lorry
stopped and as a result of this, the truck just behind the lorry rammed into it. The
truck driver sustained a broken jaw because of this accident and sued Noor.
Noor’s lorry was found to be in fine state and Noor had papers to prove that he
had got the lorry serviced. It was later found out that as per the Road Safety
Manual, a load-carrying vehicle (including a lorry) was not fit to be driven on
highways after 10 years of purchase.

(a) Noor can use the defence of inevitable accident.

(b) The truck driver should have been vigilant to ensure that he applied brakes early enough.
(c) Noor had violated the Road Safety norms and hence he should be held liable.
(d) The service station should be held liable for ignoring the
old age of Noor’s lorry.
Act of God

Definition: Act of God is an act occasioned exclusively by violence of nature without the interference of any
human agency.
- It is a kind of an inevitable accident except instead of a human hand there are natural forces of extraordinary
proportion involved.
- Vis Major (Latin) - a natural and unavoidable catastrophe that interrupts the expected course of events. It is
used interchangeably with Act of God.

No Human Interference – There should be no human involvement in the occurrence

of the act. Eg- An angry mob is not an Act of God.
Could not be anticipated – If it could be anticipated, it could be guarded against.
Extraordinary occurrences of Natural Forces – Such extraordinary natural forces
which could not be anticipated and cannot be reasonably guarded against.
Extraordinary by the standards of that place – Eg – extraordinary heavy rainfall,
earthquake, cyclone etc.
Reasonable Care and Inability to Anticipate are independent conditions.
Reasonable Care to the extent of anticipation must be taken.
Tricky Areas !!!
 Problem
Principle: If an injury is caused by the effect of natural forces and the natural forces are unforeseen or the
effects are unavoidable, the defendant can claim the defence of Act of God (Vis Major).

Facts: The IMD (India Metrological Department) predicts heavy rainfall in the
coastal town of Hebri near Manipal. But true to its reputation (or lack of it), it
fails to predict cyclonic rainfall. As a result of this, the entire town is inundated
and most houses sustain a lot of damage. Mr. Naik, a social worker sues the
Hebri Nagar Panchayat (HNP) for not warning the residents and taking
sufficient precautions.

(a) HNP can take the defence of Act of God.

(b) HNP cannot take the defence since it should have foreseen such damage in view of the well-
known inability of IMD to predict such things.
(c) HNP cannot take the defence since it was aware of the possibility of heavy rainfall.
(d) Mr. Naik cannot bring an action on behalf of the entire town.
Act of Private Defence

Tricky Area!!!
Definition– If the Defendant uses
❖ Use of force not warranted
the force which is necessary for
Eg: No imminent threat or force used for
self-defence, he will not be liable
retaliation or revenge.
for the harm caused thereby.
❖ Use of Excessive Force
Eg: Other guy attacks with a bamboo
❑Use of force which is
stick and you shoot him dead.
necessary – Reasonable Force
❖Degree of force actually used.
❑Justification for use of force –
Imminent Threat
 Problem
Principle: If you injure someone or something that belongs to someone else, while
defending yourself or your property, then you may be excused if the force you used to
defend yourself or your property was reasonable. This is known as the principle of
Private Defence.

Facts: Sweety has three pairs of rabbits. She leaves her rabbits to hop around freely in her
garden. One chilly morning she was reading newspaper in her garden and the rabbits as
usual were hoping around. Suddenly, she finds Guddu’s cat chasing her rabbits – just as
the cat is about to catch a baby rabbit by its neck, she gets hold of a stout stick and hits the
cat – the cat sustains a major injury on its head and dies. Guddu sues Sweety.

• (a) Sweety can claim the right to Private Defence.

• (b) Sweety cannot claim the right to Private Defence since she had used unreasonable
force.
• (c) Sweety is not liable since Guddu’s cat should not have entered her garden.
• (d) Sweety is liable since there was no danger to her person.
Mistake
Definition – There is no liability in tort for Mista
k
actions done in honest mistaken belief of of La e
w is
fact. no
excu
Generally Applicable in case of Malicious se ;
Mista
Prosecution ke
of Fa
ct is
an
acce
pta
Eg. – A had a shop where he used b le
excu
to sell goods belonging to other s
people for a fixed commission. B provi e
d ed
told him to sell his goods. It turned it wa
s an
out that goods belonged to C. Since h on e
st
A honestly believed the goods to be mista
of B, there is not liability of A in tort. ke.
Necessity & Statutory Authority
Necessity: If a person commits an act causing damage in order to prevent a greater harm, he is not liable
in tort.

Act caused damage (or injury) Done to prevent a greater harm

Eg. – Throwing goods overboard to lighten the weight of the ship to save if from drowning; trespassing into
a house to save a person burning in fire etc.

Statutory Authority: Damage is the result of an act the legislature authorizes.

Damage must not be a result of negligence and must only be result of the authorized act.

Eg. - Train accident as a result of negligence of driver would not be covered by the defence that Parliament
has authorized plying of railways.
 Problem

Principle: Necessity knows no law, and any person facing danger

may do all that is necessary to avert the same till he can take
recourse to public authorities.

Facts: Ankur, a law abiding citizen decided to remove the

weed of corruption from the Indian society. One day, confronted with a
bribing official, Ankur decided to teach him a lesson and punched him
on the nose. The official has filed a suit against him.

(a) Can plead self defence, as he was being bribed, which is a crime.
(b) Can plead self defence as he could not have taken recourse to public authorities in the
small duration of being asked for bribe
(c) Cannot plead self defence as there was no necessity to act in the manner he acted
(d) Can plead self defence as such aware and vigilant citizenry forms the basis of a good
democracy.
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