LAW OF TORTS

Chapter 1
The word
tort has
Atadesthat conduct
been derived from
which is not
ful Itis equivalent to the
INTRODUCTION
English
the Latin term
straight
term
or
lawful, 'tortum'
but, on the
which means to
twist.
There is very little tort litigation in India. One'wrong. other hand, It,
therefore,
twisted, crooked or
delackk cf consciousness about
than
major
one'of s rights. There is anreason the lack of tort
for
nsduties rather assertion
of torts so far as it isrights. The law of torts as increasing ermphasis on litigation
the in India is
law originated in the commonapplicable to Indian society and
custorns adrninistered performarce
in India is the of
Fnglish
period. The ancient laws and
ySSulted
irnthe collection of legal of
of the
customs the people, as people who circumstances.
inhabited England The
from English
the
aan Courts is that they do not followprinciples an known as interpreted, modified and unified
common law. However, the trend of the by
very
tte rule of justice, equity and out-dated
good conscience. For common law or where the the
on of the State from liability,
which we common
example, more than acentury old rue ofis law
e preme Court in State of Rajasthan v borrowed
Vidyawati, from England has becorme
ts rale Another area, where the AIR 1962 SC 933, pointed the inoperative and
Legislature has
idents. The Motor Vehicles Act, 1983 taken the progressive attitude, necessity
is that
to change
of motor
has established Claims does not requíre the payment of ad
netof claims in respect ofTribunals, which can follow summary procedure valorem for
cOurt fee
sS ndalso recognises No Faule accidents cases. The Act provides some
compensation in
expeditious
hit and run
liability limíted extent.
to a
Deaition
lsnot possible to give an exact and precise definition of tort.
This is perhaps
ad torts is still growing and has not reached the saturation point. The lawdue of
to the fact that
tort is neither
gentary nor static. The law is like an apparel, whích alters
czed rotonly by with time'; and the alteration is
changing modes of thought but also by the growing complexity of the
at te apparel has to fit. "No one can deny". said organism
Professor Goodhart, "that the courts have created
10r3 by the gradual and sometimes almost imperceptible extension of old tort".
Cek and Lindsell
"A ot may be
on aw of descríbed as wrong independent of contract, for which the appropriate remedy is
action."
SFederi ck Pollock
Tze law of
torts cívíl
which, although
in wrongs is a
their subíect-matter
collective name for the rules governing many species of
ís wide and varied have certain features in common, are
ythe sarne kind of legal process and are subject to simílar exceptions."

a ávil wrong for which the remedy is a common aw action for unliquidated damages, and
obligation"
tercusivekythe breach of a contract or the breach of trust or other merely equitable
589
Winfield
"Tortious liability arises duty primarily fixed by law; his
from the breach by an action for unliquidated. damages." duty is
persons generally and its breach is redressable of a
can be laid down: towar
Thus, on an analysis of the above definition, the following points
Ihus, tort is quito
(i) Tortious liability arises from the breach of duty fixed by law.
contract where the duty is fixed by parties
above
themselves.
definitions is that in tort the liability
arises
from
dis
the
tinct froK
(ii) An
person "brhaseachn
lacuna in the
important But in tort there are cases where
liable.
of a duty", i.e., a duty of the person he is held liable. For example, vicarious
committed a breach of duty himself, yet servant's tort.
(u) Where is vicariously
a masterdamages,
Unliquidated i.e., damages
his
liable for which liabilty casks
is unascertained and is atthe discretion of the court
is mentioned as a remedy for a tort. However, unliquidated damage is not the only remedy ior
atort and that for sometorts, it is not even the primary remedy. There are other remedies alsg
pi
which have not been included in the above definitions, viz., self-help, injunction and action for
specific restitution of [Link] tort as:
Professor S.P. Singh in Law of Tort has law which ros.l,
"Tortious liability arises from the breach of a duty primarily fixed by n e
for which, civil action for unliquidated
infringement of private legal right of another and,self-help,
injunction, specific restitution of property or even as the case may be, can be maintain
all cases of torts and bringe p
The definition provided by Professor Singh is workable in
clearly the nature, scope and elements of torts.
Distinction between Tort and Crime 1S
TORT CRIME

1. Tort is an infringement of private or civil 1. Crime is a breach of public rights affecting W

rights of an individual. the whole society.
2. The forum of redressal of a tort is a civil 2. In crime the proceedings are initiated in a
Court. criminal court.
3 In tort the wrongdoer has to pay damages 3. In crime the wrongdoer is punished b
to the injured party. the State.
4. In case of tort the action is initiated by 4. As crime is a wrong against the communir
the injured party or his representatives. the proceedings are initiated in the name
the State.
5. In tort the intention is of
subordinate 5. In crime, intention is of prime importance.
importance.

Distinction between Tort and Contract

TORT
1 Tort results from the CONTRACT
which are not breach of such duties breach
selves but whichundertaken by
1.
contract results froom
Abreach of then
are imposed parties
by law.
them a duty undertaken by the parties
2.
Duties selves.
axe not imposed
by law under law of
towards any specific individualtortsor 2.
a a contract the duty is
p
based on only
individuals but are towards the world at of
duty
contract and each party Owes
large. the other Contracting party.
 TORT

a violation of a right in rem (ie.

591
tortisvested
rlght
aand
fn some determinate person
available,against the world at large).
3. A
a right
CONTRACT
breachinof contract is an
only againstpersonam (ie. ainright
fringement of
party). some availablore
Danages Ín caseof breach of tort are
generally unliquidated and are determined 4. In
contract
deterrrinate person
bythe courton the facts and circumstances to the damages are offixed
terms and
ofeach cANe, conditions contract. according
actionnfor tort, no prívity is needed
5. Inanrequired to be proved, 5 In a breach of
or is
parties must be contract
proved. privity between the
Distinction between Tort and Breach of Trust
In case of breach of trust by trustee, the beneficiaryThus,
can claim such
uponthe loss that the trust property has suffered.
liquldated. Onthe other hand, damages in a tort are compensation
damages in case of breachwhichof trust
depends
unliquidated.
exists a relationship of trustee and beneficiary between the In case of breach of trust, are
two, but it is not such tort. Trust is a there
of law of property, while tort is not. breach
Damnum Sine Injuria
I means damage which is not coupled witn
daht Causing of damage, however an unauthorised interference with the plaintiff's lawful
substantial, to another person is not actionable in law unless there
is also violation of a legal right of the plaintiff.
In Gloucester Grammar School case, the
defendant had set-up a rival school to that of the plaintiffs
with the result that the plaintiffs were required to reduce the
It was held that the plaintiff had no cause of action against thetuition fees of their school substantialy.
defendant on the ground that bona fide
competition can afford no ground of action, whatever damage it may cause.
In Mayor of Bradford v Pickles, (1895) AC 587, the House of Lords held that even if the harm to the
plaintiff has been caused maliciously no action can lie for the same unless the plaintiff can prove that
he has suffered injuria. In this case the plaintiffs had been deriving water from the adjoining land of
the defendant which was at ahigher level. The defendant sanka shaft over his own land which
diminished and discoloured the water flowing to the land of the plaintifs. The plaintiffs claimed an
njunction to restrain the defendant from sinking the shaft alleging that the sole purpose of the same
Ka to injure the plaintiffs as they did not purchase his land at an exorbitant price. The House of Lords
etd that since the defendant was exercising his lawful right he could not be made liable even though
the act, which injured the plaintiff, was done maliciously.
In Mogul Steamship Co. v McGregor Gow and Co., (1892) AC 25, a number of steamship companies
combinedThe
together and drove the plaintiff company out of the tea-carrying trade
freight.
by offering reduced
the defendants had by
of Lords held that the plaintiff had no cause of action as
House
lawful means acted to protect and extend their trade and increase their profits.
formula as
The maxim explained by the following mathematical
deduced damnum sine injuria can be better
by Prof. S.P. Singh in his book 'Law of Tort' as:
Act +Loss -IInjury = Damnum sine injuria
Defendant's act + plaintiff's loss - Plaintiff's injury
Defendant's act + Defendant's malice +
= Damnum sine injuria.
Plaintiff's loss -Plaintiff's injury =
Damnum sne injuria.
 by cause did for Damno
Injuria
Sine
Defendant's Professor
At Ihus, n not plaintiff [Link]
whom
ongtully damno sine
+ ana case of
Injury-Loss the action. cause
yet of he was It
[Link]
P.
act the injuria any refused ajustis
Singh It wanted
+ wrongful damage. qualified
Plaintiff's =injuria relevant issine toreverse
Injuria in to
take means
his damno vote
sine book sine act only plaintiff'votsvoter
e. violationto
Injury damno is the won the
damno. 'Lactionable,
aw for in maxi at
-Plaintiff's loss am
assessing
can spite of of
of suffered parliamentary a
Tort' be damnum legal
nominal No
better th e
that. loss
loss as : right
by
explained amount The was sine
= damages the election,without
Injuria suffered injuria.
plaintiffdetendant
of
sine may
by
damages. butcausing
by n
damno. the be is was thAshby
not such e any
mathematical
awarded. held
defendant
lIf
relevant refusal harm.v
the liable White
plaintiff because (1703) lossor
for even
formula purpose fthe returning
offr
l
though he th 2
LR
candidateg5,the
deduce his
a
 Chapter 2
GENERAL DEFENCES
Whena plaintiffbrings an action against
the defendant for aparticular
pLstenceofallthe essentialingredients of that tort in order to make tort he has
the defendant to prove
liable. the
However,
plaintiffdoes prove the essentials of tort he may still fail in his action if the
stifies
gen if histort on the basis of principles which negate tortious liability. The law of torts
the defendant
permits
negate tortious liability. There are two kinds of defences: Specific defences and
ertain [Link] defences are peculiar to some particular wrongs,
Generaldefences for, e.g., in an action for
defamationthe defences of fair comment, privilege, etc. may be taken. General defences apply
generallyinalmost all cases of torts. The general defences discussed in the Chapter are as follows:
1. Volenti nonfitinjuria
2 Inevitable accident
3. Mistake
4 Private defence

5. Necessity
6. Plaintiff, the wrongdoer
7. Statutory authority
8. Act of God (vis major).
LVolenti non fit Injuria
According to the general principle of law, every man is the best judge of his interest and therefore
one who voluntarily agrees to suffer harm is not allowed to complain for that. Consent to suffer harm
may be express or implied. The maxim volentinon fit injuria means voluntarily suffered injury is not fit for
atiom. Therefore, if the plaintiff voluntarily agrees to suffer some harm, he is not allowed to complaint
tor that and his consent serves as a good defence against him. Consent to suffer the harm may be
epress or implied. For example when somebody is invited to house, then in that case he cannot be
Sued in a coOurt of law for trespass as the consent is express. Same is the case with the spectator who is
yured by acar coming on the track during a motor race, as in this case there is an implied consent to
suffer harm.
Essential Conditions
application of the maxim 'volenti non fit injuria' depends on the existence of following
conditions:
L.
Consent to suffer harm should be voluntarily given by the plaintiff; and
I. The plaintiff had the
knowledge
The plaintiff must know the
of risk.
nature of the act or work and its extent of danger or risk. If he does not
know, or
an act, it reasonably cannot understand the nature and extent of risk involved with the performance of
will be presumed that he had no knowledge of the risk. There is a distinction between
knowledge and assernt.
Knowledge does not necessarily imply assent. In order to apply the maxim two
593
conditions are required to be satisfied - Eirsttu. the nlaintiff was aware o nvolved a.
secondly, he with knowledge agreed to suffer harm. bythe
In Smithv Baker & Sons, (1891) AC 325, the plaintiff was a workmanemployed
workingone aside
from drilltoforthetheother, and each time
purpose of cutting a when
[Link] the
stoneshelpwere crane stones
of aconveyed, the
were
crane beidefngendant
passed over s
(on
coveyed
the

fell from the crane and injured him.

plaintiff's
The House
[Link] While
Lords heholding théindefendants
was busy his work liable
a stone to held that as there was mere knowledge of risk

injuria did notapply.

without assumption of it, the maxim volenti non,
Lord Herschell said, "Where a person
fit
undertakes intrinsicallyifpossible,
which is
to do work little dangerous, as
render it as
dangerouy,
he no
been taken to accompanying it, and cannot he
though the cause fromsuffers, be
notwithstanding that reasonable care hasrisks inevitably
doubt voluntarily subjects himselftothe done to him, even employed, which he
permitted to complain that a wrong has been
action, but where.....a. risk to the
of the which doe,my or
employed,employer,
right of the negligence the
suffered might give to others abeen created or enhanced bypreclude if he
may not result in injury, has knowledge of the risk the suffers
of duty? Icannot assent to the
from
mere continuance in service, with employer's breach
in respect of hisapplies to sucha case and the emplcyer can invok
such negligence, from recovering'volenti non fit injuria',
proposition that the maxim
protect him from liability for his wrong." v Baker &Sons, (1891) AC 325. where the plaintif
its aid to laid down in Snith consents to therisk of
harm
Thus, according tothe rule
which is
he
intrinsically dangerous,taken by the defendant to render inevitably
it as little
undertalkes to do a work reasonable care has not been risk to the plaintiff, which may or
accompanying it, although where the work is dangerous and the negligence of the
dangerous as possible. But
injury, has been created or,
enhanced by the defendant, the
an
may not result in deemed to have given his consent.
plaintiff will not be plaintiff, a lady, knowing that the driver of the car was todrunk
Hamilton, (1939) 1 KB 509, in death of the driver and injury t
In Dann v resulting
choose to travel in it. An
accident was caused
representative of the driver. The defence of nolt
an action against the did not apply and tha
plaintif. The plaintiff brought maxim volenti non fit injuria
Asquith J. held that the that the driver was drunk and his capacity for
nonfit injuria was pleaded. the knowledge
plaintiff "by embarking in the car withdid not impliedly consent
co to any subsequent negligence on the
driving safely was materially reduced,
drunkenness of the driver is so extreme and
part of the driver. may be cases in which the
It was further held that there the
lift from him is like engaging in an intrinsically dangerous act. But in
so glaring that to accept a intoxication fell short of this degree.
present case, the driver's degree of available the act causing harm must not go beyond the limit of
For the defence of consent to be performs an operation, he cannot avoid
negligently
what has been consented. Therefore, if a surgeon
the liability by pleading defence of consent.
Exceptions
plaintiff has consented to suffer the harm,
There are certain exceptional cases where even after the
he may still be entitled to recover and maintain an action against the defendant.
(i)Rescue Cases Whenthe
"Rescue cases' forman exception to the application of the doctrine of volenti non fit injura.
created by the
plaintiff voluntarily encounters a risk to rescue somebody from an imminent danger
wrongful act of the defendant, he cannot be met with the defence of volentinon fit injuria. cardue
In Wagner vInternational Railway, (1921) 232 NY 176, a passenger fell down from the railway
downand
to the negligence of the railway company. When the train stopped, his companion who got redceived
went to search for his friend fell down from the bridge because of darkness and consequently cryo
injuries. The railway company was held liable Cardozo J. observed, "Danger invites rescue. The
 Lawof Torts
relief The law S95
summonsto does not ignore tho5e
is
distress
the
It
onsequences,
them as normal,
recognises
also to
The wrong that
the rescuer...The
reactiorns
imperils life is
in tracirng,
a wrong to theconduct to its
WTong risk of rescue if
1Sa
ictin;it emergency begets
The
the man. The
wrongdoer may
only it is not
not wanton, irnperiled
is born of the
aasion. accountable as if he had," have foreseen the
He
deliverer. is as coming,
of a
positionoflaw has been summed up by Prof. Goodhart
ofassumption
The of risk does not apply where the plaintiff has,in the following,
words: caused
under an exigency "The by the
wrongful misconduct, consciously doctrine
ekendant's animminent danger of personal and deliberately
faced arisk, even of
from
i
injury or death, whether the person in death, to rescue
eowes adutyy of protection or is a mere stranger to whom he
another
whomhe
danger is
owes no such special duty" one to
Theabove
rule was adopted by Court of Appeal in England with some
1
Haruod,(1935)horses
KB 146. In this case, defendant's servant left atwo-horse vanqualifications isinHaynes u
Suddenlythe bolted and started to run in the unattended
street causing grave danger to astreet.
present. A police constable, who was on duty wornen and
same, managed to stop the horses, but in doing so inside
dhildren a nearby police
was seriously [Link], on seeing was
The defendant the
ansequently held liable. Greer L.J. accepted the American rule, as stated by
qualification. It was held that the rescuer's act need not be instinctive in order toProf.
be
Goodhart, with a
man who deliberately encounters peril after reflection may often be acting more
reasonable, for the
reasonably than one
who acts uponimpulse. In other words, the rescuer should act reasonably and not emotionally.
To above principle will not apply to a case where there is no need to take any risk. In such a
case
the person suffering harm cannot recover. In Cutler v United Dairies (London) Ltd., (1933) 2LB 297, a
horse belonging to the defendarnts and attached with a van was seen by the plaintiff running past his
buse without a driver. It entered a field adjoining the plaintiffs garden. The plaíntiff on hearing the
iver's calls for help went to the field and was seriously injured while attempting to hold the horse.
The court dismissing the claim of the plaintiff held that as there was no risk to anybody the plaintiff
Cannot recCOver.
The rule in Haynes v Harwood, (1935) 1 KB 146 applies in cases of rescue of property. In Hyett v
Grat Western Raiway Co., (1948) 1 KB 345, the plaintiff was injured while 'saving defendant's
property from fire which occurred due to the negligence of the defendant. The plaintiff's conduct
WS considered to be reasonable and on the basis of the doctrine of Haynes v Harwood, the
defendant's were held liable.
According to Prof. Goodhart, "the only difference between the life and property cases is that a
scuer would not be justified in exposing himself to as great danger in saving property as he would in
ng human life". Winfield agrees with this principle, but he says that this principle is not workable
paricular cases where the rescuer might reasonably encounter just as much danger in trying to
POperty as to preserve life, e.g., where documents of great national importance, and of which
no copies exist, are in peril of being destroyed by a fire caused by tortious conduct of some person
other than the
rescuer.
In Russell v McCabe, (1962) NZLR 392, it was held that the need for intervention must necessarily be
acute and the degree of risk in intervering must be weighed against the nature and value of the
Ploperty sought to be protected.
nfair Contract Terms Act, 1977 (England)
tlimits the right of a person to restrict or exclude his liability resulting from his negligence by a
contract terminjury
Ot personal or by resulting
notice. It from
puts annegligence,
absolute ban
by on a person's
making a contract
exclude his liability for death
right ortogiving notice to that effect. In
cases other than death and personal injury exclusion of liability by aterm of contract or notice is
possible only if it satisfies the criteria of reasonableness.
 2, Inevitable Aceldent
The defendant may encape lability in tort by establishing thatthe cause ofthe
an aceident rather than any wilful or negligent act on his part, Arident means
and if the same could not have been foreneen and avolded in spite f reamable care
lairiY
defendant, it is inevitable aceldent. Therefore, f in the performane of a lawful at
reasonable care, damages ensues through some unavoldable reamn, such damage
action.
In Brown vKendall, (1850) 60 Mans 292, the plaintiffs and the defendants dog wene
the defendant was trying to separate them, he accldentally hit the plaintiff in his ,
standing nearby. The injury to the plaintiff was held to be the result of pure acridert, fr Wh* w
action could lie.
In Shridhar Tivriv UP. State Road Trannport Corporatton, 1987 ACJ 66, while bus
[Link]., Corporation was being driven, suddenly a cyclist came in front of the bus. In ende
the cyclist the driver applied brakes. The bus skidded on the road which was wet due oraifi
in a collision between the rear portion of the bus and the front portion of the bus "
opposite dirction. Both the buses were driven at a moderate speed and it was prrved that
no lack of reasonable care on the part of any of them. Thus, it was held to be the resut f
accident and consequently the defendant Corporation was not liable for the sarne. isete
An important point to note in this regard is that the defence of inevitable accidernt is availabe hea
the event is unforseeable and consequences unavoidable ínspite of reasonable precaution. Eve t
event is heavy rain and flood but if the same can be avoided by reasonable precauticns or itsi
can be minimised, the defence of inevitable accident is not available in such a case. In S. Vedamta
DHighvays Deptt. of South Arcot, 1987 ACJ 783, a bus passing over a culvert plunged into astrea
the culvert gave way. The Highways Deptt. pleaded the defence of inevitable accident claimiag ta
due to heavy rainfall during the past few days the water of a nearby lake entered the culvet
tremendous velocity which ultimately made it to give way. The High Court of Madras basirg
decision on Engineer's Report according to which the culvert was sound a day before the inádeted
normal traffic had passed through it, held it as inevitable accident.
The Supreme Court reversing the decision of the High Court held that the Highways Deptt could
not be absolved from liability by merely claiming that the accident was due to heavy rain and food
had to be further proved that necessary preventive measures had been taken anticipating such in
and flood and the accident occurred inspite of that.
[Link]
Mistake means when one commits an error in understanding or when one understands or perceives
wrongly. Mistake may be of two kindsa) Mistake of fact, and (b) Mistake of law. Mistake whether
of fact or of law, is generally no defence to an action for tort. When a person wilfully interferes w
the rights of another person it is no defence to say that he had honestly believed that there was sot
justification for the same, when, in fact no such justification existed.
But the general rule stated above is subject to certain exceptions provided the defendant
reasonably. Wherever malice or a wrongful motive has to be proved by the plaintiff, mistake
furnish a good defence. For example, for the wrong of malicious prosecution it is necessary innocent
thatb
defendarnt had acted maliciously and without reasonable cause and if the prosecution of an
man ismistaken it is not actionable.
4. Private Defence
the
The right of private defence is the right to protect one's own person and propery against a
unlawful aggression of others, The law permits use of reasonable force to protect one'sperson
 Law of Torts
597
Theright of, private
property. defence is given statutory
PenalCode,1860 recognition in Sections 96 to 106 of the Indian
must be exercised when
right there is (a) real and
The and
remote),
(b) areasonable
apprehension of suchthreat. immediate
Afear that one
threat (not imaginary and
future will not justify the exercise of this right. might or will be
attacked in
near
protective measures employed must be
The
proportionatetothe injury or threat to be relative to the danger ahead, violernce used must be
averted, and must not
cannot be justified in drawing his sword and exceed such limits. Thus, if Astrikes
B.B of a person to minutely cutting off his hand. However. in such situations it
cannotbe expected calculate the correct
detence. What force is necessary depends on the circumstances of each proportion
case. of force to be used in
Forthe protection of property also the law permits taking of such measures as may be reasonably
necessaryfor the purpOse. In Bird v Holbrook, (1825) 4 Bing 628, the
defendant hadsearch
put upof spring
in hisgarden without fixing any notice about the same. The plaintiff, a boy, in guns
his strayed
awayfowl and having no knowledge of the existence of the gun, got over the garden wall, and was
injured. The court held, the defendant liable as he exceeded the right of private ddefence to his
property.
SNecessity
An act causing damage, if done under necessity to prevent a greater evil is not actionable even
Aonch the harm was caused intentionally. The defence of necessity is based on the maxim 'salus populi
ame lex' which means the welfare of the people is the supreme law. Necessity should be
tinguished from private defence. In necessity, there is an infliction of harm on an innocent person
whereas in private defence harm iscaused to a plaintiff who himself is the wrongdoer. Necessity is
alo different from inevitable accident because in necessity the harm is an intended one whereas in
reitable accident the harm is caused in spite of reasonable efforts to avoid it. Examples of necessity
ncude throwing goods overboard aship to lighten it for saving the ship or persons on board the ship,
or pulling down a house to stop a further spread of fire; or immediate operation performed by a
Surgeon upon an accident victim lying unconscious.
6. Plaintiff, the Wrongdoer
relief must go to the court with clean
One of the principles of equity is that a party who wants somesuch
hands. However, it is doubtful whether the defendant can take a defence under the law of torts
act the plaintiff was also
and escape liability by pleading that at the time of the defendant's wrongful
engaged in doing some wrongful act.
he is not disabled from
According toSir Frederick Pollock when the plaintiff himself is a wrongdoer
part is connected with the harm
etOvering in tort "unless some unlawful act or conduct on his own
by Dr. R.K. Bangia in The law
uered by him as part of the same transaction. For example as stated an overloaded truck, belonging
Orts' abridge,under the control of the defendant, gives way when
to the warning notice already
Uhe plaintiff, passes through it. If the truck was overloaded contraryproperly loaded, the plaintiff's
Ne and the bridge would not have given way if the truck was
In such a case even if the bridge was not
8u act is the determnining cause of the accident.
other hand, if the wrongful act of the
idy maintained, the plaintiff's action will fail. On the of the action, the defendant will be liable. In
thedeferndant
and not of the plaintiff is the determining cause
above iillustration, if the bridge
even if the
had been so ill-maintained that it would have given way
truck had been properly loaded, the plaintiffs action will succeed. Thus, if the plaintiff's being a
deferndant cannot plead that the
WIongdoer is an act quite independent of the harm caused to him, the
Plaintiff
himself is a wrongdoer.
7. Statutory Authority
would otherwisebe atort,
When astatute authorises the doing of an act, whích statue itself. The the party
has no remedy except the one (if any) provided but also for that harm which is under injured
by the
immunity statutory
authority
exercise ofis such
not only for thatThe
authority. harmunderlying obylous,
which is philoHopi)y behind the statutory immunity is that tole9AeTthe incidental
private right must
In Hammner yleld
Smith [Link] public
v Brand, interest
(1869) HL.171, the value of the plaintiff's property considerably
depreciated due to the noise, vibration and smoke caused by running of trains on arailway track
constructed under statutory powers, The damage being necessarily incidentalto the running of trains

that no action liesfor the same,

authorised by statute, it was held bythe
with reasonable care, and note therefore,
inthis an action
regard ls that
lies for act authorised
thedoing that which legislature
the legislature hadmust be done
authorised,
An important point to
and South Western Railway Co., the employees of arailway
Smith vLondon line. Sparks frorm an
if it be done negligently. trimmings of grass near a railway
In
nearby. The Railway Company engine set the
company negligently left the plaintiffs cottage was held
material on fire. The fire was spread to
liable for negligence.
8. Act of God (vis major)
an "operation of natural forces so unexpected that no human
act of God is it", Accordingto Halsbury' s Law of England,
Acording to Pollockreasonably be expected to anticipate occurrence of
foresight or skill could sense may be defined as an extraordinary against, or, more circumstance which
"an act of God in the legal and which could not have been guarded accurately,
could
as an
ma
foreseen intervention and which
could not have been causes, directly and exclusively without human reasonably to be
accident due to natural expected of the
any amount of foresight and pains and care ground of it. The occuron
have been avoided by liable for it, or who seeks to excuse himself on the
person sought to be made happens for the first time; it is enough that it is extraordinary
need it be one that arise from the act of man".
need not be unique, nor be anticipated..and it must not
and such as could not reasonably Chaturbhuj, AIR 1946 Cal 175, a banner containing an
Mathuradas
In Manindra Nath Mukherjee v defendant's premises thereby injuring the plaintiff because of a
advertisement fell down from the the defendant that the fall of the banner was caused by storm
storm in Calcutta. It was contended by that such storms of considerable severity were quite
however, found
of unusual severity. It was, monsoon season. The Calcutta High Court held that such a storm
common in Calcutta during the
to be so unexpected that no human foresight could reasonably be expected to anticipate
cannot be said of God. So, the defendant was held liable for negligence
it and cannot be regarded as vis major or Act
for failing to take proper care to secure the barnner.
197, an unruly and violent mob robbed the
In Ramalinga Nadar v Narayana Reddiar, AIR 1971 Ker defendant's lorry. The court hela ue
good of the plaintif which were being transported in the accidents may hapre
defendant liable for the loss of goods as a common carrier. The court held that by both. In either of
by reason of the play of natural forces or by intervention of humnan agency or traced to
natural
these cases, the accident may be inevitable. But it is only those acts which be can be
that could be saidto
forces and which have nothing to do with the intervention of human agency
acts of God.

Thus, to plead the defence of act of God the following two conditions must be establishea:
I. The act must arise due to the working of natural forces. reasonably
II. The ocCurrence must be extraordinary and not one which could be anticipated and
guarded against.
 Chapter 3
NEGLIGENCE
Negligence means ccareless or unreasonable conduct which
causes harm to
about negligence in law of torts: (a) Subjective theory, and (b) Objectiveanother. There are two
Nabirtive theory negligence donotes a 'State of Mind'. Negligence theory. According to
stitudeof undue indifference with respect to one's conduct and its
essentially consists in mental
consequences. Thus,
Nubitivetheory negligence is a mode of committing certain torts and not a separate or according to
Ie proponents of Subjective theory include Austin and Salmond. According to Objective specific tort.
theory
[Link] and must be treated as a specific tort. It is a conduct whichinvolves the risk of
AISng danmage and not a state of mind. The Objective theory was recognised by the House of Lords
inDnghue [Link], (1932) AC 562 where negligence has been treated as a specific tort.
ESSENTIAL INGREDIENTS
Lan action for negligence the plaintiff has to prove the following essentials:
IThe defendant owed a duty of care to the plaintiff.
IL The defendant made a breach of that duty.
m. Plaintiff suffered damage as a consequence thereof.
LDuty of care to the Plaintiff
Duty means an obligation. However, in order tomake the defendant liable for tort of negligence,
te duty should be a legal duty rather than a mere moral, religious or social duty. Thus, a man cannot
eheld liable for negligence if he owes no duty to the plaintiff. The first attempt to define duty was
made in HeavenvPender, (1883) 11 QBD 503. In this case it was held that if oneman is near to another,
«is near to the property of another, a duty lies upon him not to do that which may cause a personal
mjury to that other, or may injure his property.
Ihe principle laid down in the case of Heaven v Pender, was approved by the House of Lords in
Donoghue v Stevenson, (1932) AC 562. In this case the defendant, a manufacturer of ginger-beer had
sad it to aretailer a sealed and opaque bottle of ginger-beer. The retailer sold the bottle to the plaintiff
Wno became seriously ill after consuming the contents as the bottle contained decomposed remains of
STail, which could not b¹ detected until greater part of contents of the bottle had been consumed.
CheofThe
plaintiff. the defences
House ofpleaded by the
Lords held thatdefendant was that he
the manufacturer did her
owed not owe anytoduty
a duty take ofcarecarethattowards the
the bottle
did not t contain any noxious matter, and that he would be liable on the breach of same.
Lord Atkin laid down the criteria for determining duty in the following words,
You I must take reasonable care to avoid acts or omissions which you can reasonably foresee would
elikely toinjure your neighbour."
He then deefined "neighbours" as "persons so closely and directly affected by my act that I ought
taSonably
ts or to have them in contemplation as being so affected when I am directing my mind to the
omissions which are calledin question".
599
pplication
confidernce, dangers. personal in standard
Others,
question. anticipate
and, such members of
room
The the
picnic vehicleswindow also
[Link] when rashdriver struck an to POSSibility but not tardonDecause tonjury he Duty child reasonably Criticism
harm
toexample,
therefore, In In Keasonable prove do Lord
ofstandard handle
through Glassgow held and
action travel Inhaving they injury
uyWhether
of party her the and to to Dependsdrowning to what
The moreequation
so of Sushna byRural
subjective
a but of passengers negligernt an on "foreseeability are Harcourt that another the Atkin's of
reasonable Some foresight the of asthat the Theelbow th e by which
the the to
a foresee
there robust had of a to Mitra overhanging th e Transportthe taken
not plaintiff th e the
reasonable Neighbourhood
of event passage
picnic Corpn.
30 avoid itbuscourt conductor. the plaintiff, neighbour
and
personsforesight t he is mother roof bound foreseeability rule
no to the is on act would defendant on ina and
plaintiff.
is of v extraordinary
of
Rivington,
foreseeable, njury
was Reasonable
temperament,
element. a soM.P.S.R.T. Service is pond. would that
man
is the dutywould urn party 40 vany holding
duty
the were and
he failing
sense independent wherepersons, Muir, common window of the to does not man
are reasonable of thereby
to injury, made The
a branch guard never owes If rule "you
were th e bus. v owes Here be
is by the happen
take (1943) of the greatcourt (1932) foreseeable,
not does at would to likely
presumedIt in some Bezlum the
is reasonable
nature who mishap the that
Corpn., todeceased, ofOne against occur include Foreseeability
a prevent
the
takes must Rule
precautionsinjuringcarrying AC
defendants of travel amount precautions...People
driver a
not duty timeduty a
still which tail children
as it the
observed of 146 do
stranger
of man were tree the Bibi, to mean to
no totake
injure
left the unduly to the consequence a 448, or mnust bus AIR on it fantastic the LTthe but then ofto to harm account
to Lord a accident. to was when AIR prevent his reasonable
foresee
to idiosyncrasies man
the caught the have mind 391, idea remote th e
the the
standard be were bi g pass liable was 1974
the ofthatpassengers
care a act neighbour.
of is to your
the MacMillan
againstchildren. manageress roof held the 1980 reasonable not
freetimorous is, urn entered severely inviting
and possibilities". of
"if ofdefendant plaintiffInjury another; of
that or
judge or playing. in on
observed MP of that bus Cal t
likelihoodh e
possibility. taccountableneighbour" the
in containing a omission,
injury
nonchalantly both one rain the the who reasonable care
of
the of 68, caution took 165, possibility
must or distinction
passengers there likelihood viz.,
tocare and occurrence tea was It
sense,
of
observed: to road into hit the bus. were the to
Suddenly
isand not
decide from of right at not a failsavoid
the urn have the th e
thatplaintiff by was was guard To depends the f or
the of imagine held six at travellingconductor failure stranger
-apprehension particular an being defendart a the a turn. man, ofall". establishliable. defendant
consideration truck required negligence negligence between toacts
what, disregardimpersonal of that to
their reasonable to against danger As of explain
reasonable one nine habit As then the to on
such
carried who travel observed watcheswhoa or
every food coming of injury do
in the of a on negligence reasonable omussios
create
acting to
person an gallons
th e
corporation
permitted a of was on
consequence, reasonablea there
emerging th could
at stands itself
the on on th e bus although
omitted has
even path manageress in the
stances test. event.
through persons distance resting of the the roof makes carelessly in
man the travelling
from part invited 1s byhas reasonably
bycertain
cases.
For
of the no Lord shownalso toforeseeability nich
the whose It roof part of is it he and
and beset Explaining tea-room.t ea driver. of is him
elbow the
amounts passengers
of he the probabilii only
negligenceDunedin not
o
involves from most witheliminates the lost to from the be you
conduct could opposite in both died. bus a enough liable
forese
obvious passage the the It on a driver mero
other wae ca
of in over lions. gri p te a Two was the bus to In th e i of
tre is the not
1Sthe
 Law of Torts
the reasonable man would 601
case.

to be made liable ought to

have had in
narticular
sought
have contemplatthere
ion, andis room
what, accordingly, the
tooneJudge may seem
tar-tetclhed mayforeseen. Here
paty What
iews....
seem to for
Duty another both natural and diversity of
of
Breach
owes a duty of
probable.
L person who care and
A standard and degree of care commits a breach of that duty, is said
the
However,
said that a person is
neither required on the part of a person varies to be negligent
from case to case. t
andimprudent person. Theexpected
been to act like a super
has
unreasonable
law therefore human nor like an insane or
part of a
person which should
have been taken by a requires that standard and degree of care on
incumstances,Thus,though thhe standard is
the reasonable and prudent
uniform, the degree of care varies with person in the lhke
speed may nott be negligent for an
ertain
hr anothervehicle. ambulance, but the same speed may be ansituations. Thus, a
act of negligence
of care required varies according to
The degreebe
situation may negligent
act in another. The degreeeach
of
situation. What may be a careful act in one
care
have been foreseen by a reasonable arnd prudent depends on the magnitude of risk which
could man. Thus, the driver of a vehicle should take
greatercare when it
is raining as the roads
become
kenintransporting inflammable and explosive slippery.
materials than Similarly greaterordinary
in transporting care is required
goods. to be
In Veeran Krishnamoorty, AIR 1966 Ker 172 the plaintiff, a boy of 6 years,
along withotherchildren was knocked down by a lorry. The court while holdingwhile
the crossing
defendant aliable
road
ornegligence observed that as the road was wide it was possible for the defendant to see from a
distance that the children were about to cross the road. So the driver ought to have taken
precautions and driven at such a pace as to enable him to stop before he reached the place reasonable
where
hildren were about to croSs.
ln Classcow Corpn v Taylor, (1922) 1 AC 44, the defendants maintained a public park which was
much frequented by children. There were poisonous shrubs in part of the park. Achild of 7years
antered the park, ate some poisonous berries of the shrubs and consequently died. The corporation
was held liable for its failure to take proper care to warn the children or taking adequate measures to
prevent them from reaching there.
In Bolton v Stone, (1951) AC 850, the plaintiff was injured by a cricket ball while standing on a
highway which was adjacent to the cricket ground. In an action against the club, it was held that the
dub was not liable for negligence. It was held that although the possibility of the ball hitting someone
-nthe highway might reasonably have been foreseen, this was not sufficient to establish negligence
SCe tne risk of injury to anyone in such a place was so remote that a reasonable person would not
have anticipated it.
L Damage Suffered by the Plaintiff
he has sustained
10 prove an action of negligence, the plaintiff cannot succeed unless he proves thatdamage caused is
age as a result of the defendant's conduct. The plaintiff has also to show that the for loss caused by
hos:Eote a consequence of defendant's negligence. Thus, in breach asuit for damages
gence of the defendant. first. aduty to take care, secondly, a of that duty, and thirdly, that
such breach was what the courts call the proximate cause' of the loss or injury to the plaintiff should
be proved.
Res Ipsa Loquitur
As a general rule it defendant was negligent. The plaintiff is
is for the plaintiff to prove that the defendant. However, in certain
Tequired to collect the evidence and prove the case against the negligence and it will be for the
idercfuemsndatnatrnces
the courts draw an inference
to prove that there was no
that
negligence
there
on his
has been
part. This is called res ipsa loquitur,
which
mes he t r Se2S for tE. When the acadent
Odent cod nt riarh ou nless the explains only one negligent,
trh the law at the
defendant had been raises
preson t egne nthe part of the defendant. In sucha case it is sufficient for the plaintiff toa
prONee dertandgmre.
The ranSNt a rue olkw, buta rule of evidence benefitting, the plaintiff by not requiring him
to prove a rample, where a car injured a person on footpath beside a road, or a person
defendant's premises, or where a
gong ong a ad was injured by the fall of a stone from the upon.
surgan eta scalinide he itim's stomach whom he operated
Eseatils
plaintiff was underthe control of the defendant, and
(a) The hing casing Camage or injurytothe without
plaintiff could not have happened negligence on the
(6 The nodnt casn injury to the
part of te defndant. opposi
Subhagaanti, AIR 1966 SC 1750, a clock tower situated
fDeia
n MaCtim the Muniipal Coporation of Delhi collapsed leading to the death t
Town Hal ekngins to normal life of it was 40-45 years having regard
e Nrears ld, while the that the fall of the tower tells
rany p s s he tower w these umstances the Supreme Court held defendant. Since the defendan
the kindmrtr h the part of the
on
rayn inferene of negligence liable.
s wn storr in tmefgigene on their part they were held of
udnotprve he
SC 17, the Supreme Court held the State Government breac
C t t s AIR 1965 resulting in
Ih Priz r Mix maintenance of an irrigation canal under its control that thebreach
Prab Ebe ñr neigene fodingin The court further observed
of the plaintiff's lands. Government. The
of the caaind nuert been proper care on the part of the State
was
acd nt have had there
showing the breach was the result of act of a third party or
defendant aoud esare iability by
nits failure to do so it was liable for negligence.
due to At of God
Bozrd, AIR 1984 Mad 201, a high tension wire of 440 watts
h r I Naiz Elatricity husband treaded upon the high tension wire and
The plaintiffs
runing ovr a fam gt smpped. that the mere fact that the high tension wire had snapped and
held
ed by electrocution The ourt
negligence on the part of the defendants in maintaining those wires. ofIt
falen rass apreumption of defendants in ensuring to see that in the
event
no precaution was taken by the defendant
w2s a'sofound that the
there was an automatic disconnection of the power supply. Moreover, was no
wie sapping
there was a periodical inspection of wires to ensure that there
aso faied to prove that res ipsa
lkelihood of the wire snapping and falling down. It was thus a clear cut case for
reasonable
Lquitur.
Contribatory Negligene
injury caused by negligence, the Court may to be faced witha
a daim arising out of death or
n trying
the parties were in some respect negligent. The court is then decide as to
situation where both
negligence caused the death or injury. Contributory negligence is the negligence in no
whose negligence, when plaintiff has means anu
avoiding the consequence arising from defendant's wrong side of the road, is hit by a vehicle comiry
opportunity to do so. For example, if A, going on the
rashly by B. In such a case B can take the defence
from the opposite direction which was driven
contributory negligernce on the part of A.
for the first time in the case of Butterjeu
The rule of contributory negligence was enunciated
collided
plaintiff, who was riding on his horse very violentlyThecourt
Forrester, (1809) 11 East 60. In the case thekept
polee which had been wrongfully by the defendant who was repairing his house. Thus,the
with a from a distance of 100 yards.
observed that there was suffiient light and the pole was visible
 Lw of Torts
Plaintitfwas heldto negligent himself
in 603
againstthe defendant.
rule
exercising reasonable care and so
had no cause of
Theabove his meant that the plaintitf may action
Ngligene on part though, in effect the lose an action against the
modifiedthe law relating to main cause of damage was defendant for even slightest
urts
LastOpportunityRule contributory negligence by introducing defendant's negligence. The
last opportunity' rule.
Aording to this rule, when two persons are
[Link] the accident by taking negligent,
reasonable care
that one of them, who had the last
(1842) 10 M&W 546, a
donkey with should be liable for the loss. In
Mann,
[Link] donkey was ran over and killed by the
his forelegs tied was left in a narrow public streetDarisby the
held the defendant
defendant liable because he had the last driving his wagon excessive speed.
in
Thecourt opportunity to avoid the accident by the
evercise ordinary
of case, i.e., by driving at such a pace to avoid
mischief.
However, in reality, the last opportunity rule too did not fulfil the purpose as it entails exclusive
Or no liability although the other party is found to be negligent. As per this
whose act of negligence was earlier, altogether escaped the responsibility and whose rule, the party
negligence was
subsequent was made wholly liable even though the resulting damage was the product of the
negligence of both the parties. Accordingly, the British Parliament passed the Law Reform
(Contributory Negligence) Act, in 1945 wherein it has been provided that if both the parties are
negligent,tthe damages are to be apportioned in accordance with the degree oftheir fault.
In India, there is no Central legislation corresponding to the Law Reform (Contributory Negligence)
Act.1945 of England. But, the provisions of the English Act have been followed, in preference to the
good conscience.
ommon law rule, being more in consonance with justice, equity and
Rural Transport Service v Bezlum Bibi, AIR 1980 Cal 165, the conductor of an over-crOwded bus
In by an over
passengers to travel on the roof of the bus. One of the passengers got struck that there was
invited
and consequently died. The Calcutta High Court held
hanging branch of a tree driver of the bus to invite passengers to travel on roof of
and
negligence on the part of the conductor the deceased as he took the risk of
and there was also contributory negligence on the part ofthe defendants to the plaintiff was
the bus The compensation payable by
travelling on the roof of the bus.
accordingly reduced by 50%.