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Defences of Tort

The term Tort is the French equivalent of the English word wrong and of the roman law term delict. It was introduced into English law by Norman jurists. The word tort is derived from a latin term �tortum' which means to twist and implies conduct which is twisted or tortious. It now means a breach of duty giving rise to a civil cause of action and for which compensation is recoverable . The basic principle underlying tort law is that no one should be harmed by the act of others . There is a duty of care towards everybody , which is impliedly imposed under law.

The term tort is defined by two scholars:
Sir John William Salmond- According to him, "tort is a civil wrong for which the remedy is a common law action for unliquidated damages, and which is not exclusively the breach of contract, or the breach of trust, or other merely equitable obligations".

Winfield- According to him ," law of tort is general liability which originates from the violation of duty determined by the law.

Although there is a lot of criticism between both the definitions, Salmond's definition is considered to be appropriate at this time .

Characteristics Of Tort

There are three characteristics in law of tort:

Civil Wrong:
Tort is a civil wrong in the sense that it is a wrong against the person and not the society at large. However tort is different from other civil wrongs such as breach of contract or breach of trust. The act complaint of should, under the circumstances, be legally wrongful as regards the party complaining; that is, it must prejudicially affect him in some legal right, merely that it will, however directly, do him harm in his interests is not enough.

An act which, prima facie, appears to be innocent may become tortious, if it invades the legal right of another person. A familiar instants is the erection on no one own land of anything which obstructs to be the light to a neighbours house.

It is no doubt, lawful to erect what one pleases on ones own land but if by twenty years enjoyment, the neighbours has acquired the legal right to the obstructed transmission of the light across the land, the erection of any building which substantially obstructs it is an invasion of the right and so not only does damage, but is unlawful and injurious.

The crucial test of legally wrongful act or omission is its prejudicial affect on the legal right of another. Rights available against the world at large are very numerous. They are subdivided into private rights i.e. right in personam and public rights i.e. right in rem.

Right in Personam:
Those rights which are only available to a particular individual but not society at large. Eg: rights of reputation etc.

Right in Rem:
Those rights which are available against the society at large. Eg: right against exploitation.

Legal Damage:
There are two types of damages in general I.e. damages which means compensation and damage which means injury to a legal right.

Damage means the harm or loss suffered or presumed to be suffered by a person as a result of some wrongful act or omission.

The real significances of legal damage is explained by two maxims, namely, Injuria Sine Damnum And Damnum Sine Injuria.

By damnum is meant damage in the substantial sense of money loss of comfort, service, health, or the like. By injuria is meant a tortious act it need to be will fuel and malicious for though it be accidental, if it is tortious an action will lie. Any unauthorised interferences, however trivial, with some absolute right conferred by law. On a person, is an injury eg- the right of excluding others from ones house or garden.

In case of Injuria Sine Damnum i.e. the violation of an absolute private right without any actual loss or damage the person whose right is violated has cause of action. Every person has an absolute right to his property to the immunity of his person and to his liberty. There are two kinds of torts which are actionable per se i.e. one without proof of actual damage and second those which are actionable only on proof of actual damage resulting from them.

In India the same principles have been followed. The privy council has observed that their may be , where a right is interfered with, Injuria Sine Damnum, sufficient to find an action, but no action can be maintained where there is neither Damnum Sine Injury or Injuria Sine Damnum. Violation of legal right committed knowingly gives rise to a cause of action e.g. interference with an exclusive right to weight goods and produce, sold at bazaar.

Case Law Reference:

  1. Ashby vs White (1703):
    It was case refusal to register vote, the defendant an returning officer wrongfully refuse to register a duly tendered vote of the plaintiff. A legally qualified voter, at a parliamentary election and the candidate for whom the vote was tendered was elected, and no loss was suffered, never the less it was held that an action lay on account of violation of legal right of the plaintiff.

    In this case if the officer started acting maliciously where therefore without any improper motive in exercising his judgement, honestly refuse to receive the vote of a person entitled to vote, may be held actionable per se.
  2. Gloucester Grammar School Case:
    It was a case related to setting a rival school where the defendant a school master setup a school next door to the plaintiff and students from the plaintiff's school took admission in defendant's school. It was held that no action could be maintained as there is no violation of any legal right.
  3. Mogul Steamship Co. v/s Mcgregor And Co. (1892):
    This case was related to driving rival traders out of market - A, B, C, and D, shipowners, who shipped tea from one port to another, combined together, to keep the entire trade in their hands and consequently to drive F, a rival shipowners out of trade by offering special terms to customers who deal with them to the exclusion of F, F sued A, B, C, and D for the loss caused to him by their act. It was held that F had no right of action, for no legal right to F had been infringed. Damage done by competition in trade was not actionable.
  4. Use Of Title By Spouse After Dissolution Of Marriage:
    Where the marriage of a commoner with peer had been dissolved by decree at the instance of the wife, and she afterwards, on marrying a commoner, continued to use the title she had acquired by her first marriage, it was held that she did not thereby, though having no legal right to the user, commit such legal wrong against her former husband, as to entitle him, in the absence of malice, to an injunction to restrain her the use of the title.

The result of the two maxims is that there are motel wrongs for which the law gives no legal remedy though they cause great loss or detriment; and, on the other hand, there are legal wrongs for which the law does give a legal remedy, though there be only violation of a private right, without actual loss or detriment in the particular case. Actual damage is the gist of action in the following cases:
  1. Right to support of land as between adjacent landowners;
  2. menace;
  3. seduction;
  4. slander;
  5. deceit;
  6. conspiracy or confederation;
  7. waste;
  8. distress damage feasant;
  9. negligence;
  10. nuisance consisting of damages to property; and
  11. actions to procure persons to break their contracts with others.

A tort is a civil injury, but all injuries are not torts. The wrongful act must come under the category of wrongs for which the remedy is a civil action for damages. There also exist a large number of unauthorised acts for which only a criminal prosecution can be instituted. Further, damages claimable in tort action are unliquidated damages. For example, as earlier seen an action for money had and received in the context of quasi-contract, where liquidated damages are claimed is not a tort action.

The law of torts is said to be a development of the maxim ubi jus ibi remedium (there is no wrong without a remedy). Jus signifies here the �legal authority to do or demand something; and remedium may be defined to be the right of action, or the means given by law, for the recovery or assertion of a right.

If a man has a right, "he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of its; and indeed it is a vain thing to imagine a right without a remedy; want of right and want of remedy are reciprocal. The maxim does not mean, as it is sometimes supposed, that there is a legal remedy for every moral or political wrong. If this were its meaning, it would be manifestly untrue. There is no legal remedy for the breach of a solemn promise not under seal and made without consideration".

Under Indian law there is no legal remedy for the breach of a solemn promise made without consideration whether under seal or not. There are dicta both ancient and modern that categories of tort are not closed and that novelty of a claim is no defence.

Some General Elements In Torts:

  1. Act And Omission

    It has already been seen that to constitute a tort there must be a wrongful act. The word "act' in this context is used in a wide sense to include both positive and negative acts i.e., acts and omissions. There is also a basic distinction between an act and an omission. Failure to do something in doing an act is not an omission but a bad way of performing the act. For example, if a lawyer gives an opinion without taking notice of the change in law brought about by a reported decision of the Supreme Court, he would not be guilty of an omission but of performing the act of giving his opinion in a bad way. "An omission is failure to do an act as a whole."

    Generally speaking, the law does not impose liability for mere omissions. See also, the definition of �act' in section 3(2), General Clauses Act, 1897.

    CLERK & LINDSELL, says that "the purpose of the distinction between an act done in a bad way and omission is to distinguish between regulating they way in which an activity may be conducted and imposing a duty to act upon a person who is not carrying on any relevant activity".
  2. Voluntary And Involuntary Acts

    According to a theory propounded by BROWN and accepted amongst by others by AUSTIN, STEPHEN and HOLMES a voluntary act may be distinguished from an involuntary act by dividing the former into "1) a willed muscular contraction, 2) its circumstances, and 3) its consequences".

    According to a theory propounded by Brown and accepted amongst others by Austin, Stephen and Holmes a voluntary act may be distinguished from an involuntary act by dividing the former into:
    1. A willed muscular contraction,
    2. its circumstances and
    3. its consequences.
    An act is innocuous or wrongful because of the circumstances in which it is performed and the consequences which it produces. For instance, "to crook the forefinger with a certain force is the same act whether the trigger of a pistol is next to it or not. It is only the surrounding circumstances of a pistol loaded and cocked, and of a human being in such relation to it, as to be manifestly likely to be hit that make the act a wrong."

    An act is involuntary when the muscular contraction is not willed. This theory has not been accepted by some others for the reasons that it rests upon dubious psychology, it is inappropriate for the problem of omissions, and it imposes upon the meaning of the term "act" a limitation which is contrary to the common usage of speech. In common speech one includes all the relevant circumstances and consequences under the name "act".

    The act of murdering a person by shooting at him is one act and not merely the muscular contraction of pressing the trigger. The wrongful act of trespass on land includes the circumstance that the land belongs to another, and not merely the bodily movement by which the trespasser makes his entry on it.

    According to this view, "an act has no natural boundaries" and "it is for the law to determine in each particular case what circumstances and what consequences shall be counted within the compass of the act with which it is concerned." Omissions like positive acts may also be voluntary or involuntary. When a parent fails to rescue his child because he has fallen asleep or because he is suffering from insanity, the omission is involuntary, though it does not involve any question of muscular contractions.

    The common feature of involuntary acts and omissions according to this view is "not in the absence of any actual exercise of will, but in the lack of ability to control one's behaviour; involuntary acts are those where the act or lacks the power to control his actions and involuntary omissions are those where the act or's lack of power to control his actions renders him unable to do the act required". An involuntary act does not give rise to any liability. For example, an involuntary act of trespass is not a tort.

    In Olga Tellis v. Bombay Municipal Corporation, 16 the Supreme Court referring to the inordinate helplessness of pavement dwellers of Bombay observed: "The encroachments committed by those persons are involuntary acts in the sense that those acts are compelled by inevitable circumstances and are not guided by choice." These observations cannot be understood to mean that an act committed out of helplessness arising out of poverty is an involuntary act under the Law of Torts.

    The Supreme Court in the sentence following the above observations said that trespass is a tort, and pointed out that necessity is a plausible defence. Had the court intended to lay down that the encroachments were involuntary in the sense known to the Law of Torts and for that reason not actionable, there was no question of suggesting necessity as a defence.
  3. Mental Elements

    3(A) Malice

    Malice in the popular sense means spite or ill-will. But in law malice has two distinct meanings:
    1. Intentional doing of a wrongful act, and
    2. Improper motive.

    In the first sense, malice is synonymous with intention. In the second sense, malice refers to the motive and in this sense it includes not only spite or ill-will but any motive which the law disapproves. Malice in the first sense was described by Bayley J., in the following words: "Malice in common acceptation means ill-will against a person, but in its legal sense it means a wrongful act, done intentionally, without just cause or excuse.

    If I give a perfect stranger a blow likely to produce death, I do it out of malice, because I do it intentionally and without just cause or excuse. If I maim cattle without knowing whose they are, if I poison a fishery, without knowing the owner, I do it out of malice, because it is a wrongful act, and done intentionally." The word "wrongful' imports the infringement of some right, i.e., some interest which the law recognises and protects.

    Where a man has a right to do an act, it is not possible to make his exercise of such right actionable by alleging or proving that his motive in the exercise was spite or malice in the popular sense.

    A wrongful act, done knowingly and with a view to its injurious consequences, may be called malicious. But such malice derives its essential character from the circumstances that the act is intentionally done and constitutes a violation of the law. Here also, the use of the word "malice" is in the first sense i.e., intentional wrong doing which is also known as "malice in law".

    Thus, "Malice in law" means an act done wrongfully, and without reasonable and probable cause, and not, as in common parlance, an act dictated by angry feeling or vindictive motive." Malice in law" is "implied malice" when from the circumstances of the case, the law will infer malice.

    Malice in the second sense, i.e., improper motive, is sometimes known as "express malice", "actual malice" or "malice in fact" which are synonymous expressions. Malice in this sense, i.e., improper motive, is for example, relevant in the tort of malicious prosecution. The topics of "Intention" and "Motive" are hereinafter discussed separately.

    3(B) Intention, Negligence And Recklessness

    Intention is an internal fact, something which passes in the mind and direct evidence of which is not available. "It is common knowledge that the thought of man shall not be tried, for the devil himself knoweth not the thought of man." This dictum of Brian C.J., only means that no one can be sure of what was in another's mind because what a person thinks can be inferred only from his conduct. An act is intentional as to its consequences if the person concerned has the knowledge that they would result and also the desire that they should result.

    It is a case of negligence when the consequences are not adverted to though a reasonable person would have foreseen them. It is "recklessness " when the consequences are adverted to though not desired and there is indifference towards them or willingness to run the risk. Recklessness is sometimes called "Gross negligence" but very often and more properly it is assimilated with intention.

    It is sometimes said that "a party must be considered in point of law to intend that which is the necessary or the natural consequence of that which he does". This is too wide a statement as it fails to distinguish between intentional and negligent wrong doing.


    Motive is the ulterior object or purpose of doing an act. It differs from intention in two ways. First, intention relates to the immediate objective of an act, whereas, motive refers to the ulterior objective. Secondly, motive refers to some personal benefit or satisfaction which the act or desires whereas intention need not be so related to the actor.

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

    In Allen v. Flood; 'Lord Watson said: "Although the rule may be otherwise with regard to crimes, the law of England does not take into account motive as constituting an element of civil wrong. Any invasion of the civil rights of another person is in itself a legal wrong, carrying with it liability to repair its necessary or natural consequences, in so far as these are injurious to the person whose right is infringed, whether the motive which prompted it be good, bad, or indifferent."

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

    In some cases there may be a plurality of purposes and it may become necessary to decide as to what is the predominant purpose. For example, if persons combine to protect their own interests and to cause damage to another person, they would be liable for the tort of conspiracy if the predominant purpose is to cause damage and damage results; but if the predominant purpose is protection of their legitimate interests, they would not be liable even if damage is caused to another person. Cutting off underground water supply.

    A, sank a well on his land and thereby cut off the underground water-supply from his neighbour B, and B's well was dried up. It was not unlawful for a land-owner to intercept on his own land underground percolating water and prevent it from reaching the land of his neighbour. The act did not become unlawful even though A's motive in so doing was to coerce B to buy his land at his own price. A, therefore, was not liable to B, however improper and malicious his motive might be.

    3(D) Distinctions Illustrated
    The distinctive features of a voluntary act and characteristic of different mental elements have been noticed above. These are highlighted by an admirable illustration given by Prof. Street: "If a man throws a stone at a woman, his trespass to her person is intentional; that he threw it because she had jilted him would be immaterial in determining his liability in trespass-that would be his motive.

    If he did not throw the stone for the purpose of hitting her but ought to have foreseen that it was likely that the stone would hit her, his act would be unintentional but nevertheless negligent. If the stone hit her solely because it rebounded off a tree at which he had thrown it, his conduct would be voluntary; and the hit would be accidental.

    But, if, while he was holding the stone in his hand, a third party seized his arm and by twisting it compelled him to release his hold on it, whereupon it fell on the woman, his conduct would be involuntary and could never give rise to liability on his part."

    Two comments here are necessary. In the case where the stone thrown at a tree rebounds and hits the woman it is assumed that the risk that the stone on rebound may hit the woman could not be reasonably foreseen which negatives negligence, and, therefore, it is an accident thought he act of throwing the stone is voluntary. In this case also there will be no liability.

    In the last case, where a third person twists the arm of the person holding the stone and the stone gets released, the act of the person holding the stone is involuntary and so he would not be liable for trespass; but, the person twisting the arm and compelling the release of the stone so that it may hit the woman will be guilty of trespass.
  4. Malfeasance: Misfeasance: Nonfeasance

    The term "malfeasance" applies to the commission of an unlawful act. It is generally applicable to those unlawful acts, such as trespass, which are actionable per se and do not require proof of intention or motive. The term "misfeasance" is applicable to improper performance of some lawful act for example when there is negligence.

    The term "nonfeasance" applies to the omission to perform some act when there is an obligation to perform it. Nonfeasance of a gratuitous undertaking does not impose liability; but misfeasance does. Where there is a duty towards the individual injured, to do the act by the omission whereof the injury is caused, the nonfeasance of such an act gives rise to a cause of action to the same extent as a misfeasance of an act of which there is a duty to perform in a particular manner.

    The terms malfeasance, misfeasance and nonfeasance are of very wide import but they cannot cover a case of breach of public duty which is not actuated with malice or bad faith such as defective planning and construction of a bundh.
  5. Fault

    It has been seen that damage caused to a person when no legal right is violated does not give rise to any tortious liability even if the act causing the damage is done intentionally with an improper motive. It has also been noticed that mental element such as intention, negligence, malice or motive in association with an act or omission which is violative of a right recognised by law plays an important role in creating liability. Tortious liability here has an element of fault to

    support it. There is, however, a sphere of tortious liability which is known as absolute or more properly, strict, where the element of fault is conspicuously absent. One of the important examples of strict liability is the rule in Rylands v. Fletcher, that the occupier of land who brings and keeps upon it anything likely to do damage if it escapes is bound at his peril to prevent its escape and is liable for the direct consequences of its escape even if he has not been guilty of any negligence.

    A more important example of strict liability is the rule laid down in M.C. Mehta v. Union of India, that an enterprise engaged in a hazardous or inherently dangerous activity is strictly and absolutely liable for the harm resulting from the operation of such activity. Another example of liability without fault is the liability of a master for the tort committed by his servants in the course of employment. There are also many duties and liabilities imposed by statutes

    on employers, e.g., the Factories Act, the Workmen's Compensation Act, where the element of fault is absent. A large increase in motor accidents gave rise to the view, that the victims and their dependants should be allowed certain amount of compensation on no fault basis without prejudice to their right of getting higher compensation on the principle of fault and this was first implemented in India by the Motor Vehicles (Amendment) Act, 1982. Damages from radioactive properties of nuclear matter to person or property of third parties highlighted in international conventions led to imposition of strict liability by the Nuclear Installation Act, 1965 (U.K.).

    Thus, at one extremity are the situations where damage though intentionally caused is not actionable and at the other extremity are the situations where the law imposes strict liability without any fault of the defendant. Between these two extremities lies the area where existence of fault in the form of intention, negligence or motive is essential to fasten liability on the wrongdoer. As stated by Holmes: "As the law on the one hand allows certain harms to be inflicted irrespective of the moral condition of him who inflicts them, so at the other extreme, it may on the grounds of policy

    throw the absolute risk of certain transactions on the person engaging in them, irrespective of blameworthiness in any sense. Most liabilities in tort lie between these two extremes, and are founded on the infliction of harm which the defendant had a reasonable opportunity to avoid at the time of acts or omissions which were its proximate cause." The sphere of strict

    liability falling at one extremity is not insignificant and cannot be ignored as a mere aberration and a theory propounded, as was done by Salmond, that fault is the basis of all tortious liability. The views of Salmond have not been shared by others. Apart from cases of strict liability, the rule that damages allowable are proportioned to the damage or loss and not fault also negatives the theory of fault. For example, slight negligence may unfortunately cause severe damage to a plaintiff and the defendant may have to pay huge amount as compensation; whereas, gross

    negligence may fortunately cause insignificant damage and the plaintiff may then be allowed only nominal compensation. Moreover, prevalence of insurance both optional and compulsory to cover risk and liability has diluted the deterrent factor in the award of compensation.

    This is not to say that we have reached the stage when the element of fault can be ignored. It has already been stated that the wide area falling within the two extremities of no liability and strict liability is covered by torts where fault in the form of intention, negligence or motive is essential to fasten liability.

    There are also instances where situations originally falling within the sphere of strict liability have moved upwards and are now embraced within the area of fault liability. For example, the tort of trespass to person which was initially thought to be of strict liability has now come to be recognised as one requiring negligence of the defendant as an

    essential ingredient. Further, although the practice of insuring risk and liability is growing (it is compulsory in respect of accidents arising out of use of motor vehicles) it has not become so wide as to cover all forms of risks and liabilities and the award of aggravated and exemplary damages has the tendency of deterring the defendant to repeat and others in similar situations to commit the wrongs for which damages are awarded. In view of these diversities all that can be

    said is that if one has to discern some common factor in tortious liabilities, that factor is flexible public policy, and not fault, which makes the courts and the legislature to recognise new concepts of right and duty to meet the needs of advancing civilisation. When public policy influenced by social justice or similar other considerations requires that the plaintiff be compensated irrespective of fault, the law provides for strict liability and where there are no such

    considerations, public policy requires that the defendant should not be made to pay for the loss arising from an event which he could not have avoided and so the law provides liability on principle of fault.

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