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All about Tort & Tortious Liability


The word is generally derived from the Latin word ‘tortum’ which means ‘to twist’ and includes that conduct which is not straight or lawful and on the other hand is crooked or unlawful. You must have seen written in the public walls, “please do not commit nuisance here”; “trespassers will be prosecuted” etc. Tort is a civil wrong and generally arises from the breach of the duty primarily fixed by law. It is the infringement of the right of a private individual giving a right of compensation. What is Civil Wrong? One must not confuse himself between ‘civil wrong’ and ‘criminal wrong’. Criminal wrongs are more serious in nature and are against public rights even if the action hurts only one person. Let us take a case of murder where if a person murders another, then such a person is a danger to the whole society. Thus it is a criminal wrong. On the other hand, if you have parked your car in such a way that it is blocking the way of your neighbor and thus he is not able to move out of his house, then such of your act commits a civil wrong since it is harming only one person and not the whole society. Hence civil wrongs are against private rights. Thus you can differentiate an act to be a civil or a criminal wrong. Just see whether it is harming a single person or the whole public. At the cases cited above, if the act harms only a single person then it is a civil wrong otherwise a criminal wrong if it is harming the whole public.


‘Law of Tort’ or ‘Law of Torts’ If it were ‘law of tort’ then it would attract every wrongful act and thus would be very wide. So it is ‘law of torts’ and hence deals with a number of specific torts and not with any tort. How is tort distinguished from?Crime: a crime is of more serious nature than a tort. One of the basic differences is that in a criminal law, the wrongdoer is punished while in case of civil law, the injured party is compensated. The basic idea behind compensation is to restore the loss suffered by the injured party. However the punishment under criminal law is awarded to prevent the offender from committing further offences. • Breach of Contract: a breach of duty occurs when the parties violate what have been undertaken by them. While in tort, such duties are not imposed by the parties themselves but by law. • Breach of Trust: damages in breach of trust are liquidated i.e. are already determined whereas in the case of tort, the damages are un-liquidated and are judged on the basis of the circumstances. Essentials of a tort To constitute a tort, two conditions must be satisfied. They are; • There must be some act or omission on the part of the defendant, and • The act or omission should result in legal damage. In order to make a person liable for a tort, he must have done some act which he was not expected to do or he must have omitted to do something which he was supposed to do. Similarly where there is a legal duty to do some act and the person fails to perform that duty, he can be made liable for such omission. For example: If a corporation which maintains a public park, fails to put proper fencing to keep the children away from a poisonous tree and a child plucks and eats the fruits of that poisonous tree and dies, the corporation will be held liable for such omission. Similarly in order to be successful in an action for tort, the plaintiff has to prove that there has been a legal damage caused to him. Two things must be kept in mind before moving further:  Injuria sine damno: Injury without damage occurs when a legal right has been violated without causing any harm, loss or damage to the plaintiff. For instance, trespass to land is actionable even though no damage has been caused to the plaintiff.  Damnum sine Injuria: Damage without injury occurs when damage has been caused without injury to any legal right. For instance, a school has been opened infront of an old school and is charging fewer fees as compared to the old school thus attracting the students. Though this activity is causing damage to the old school still it is not violating any of their legal rights. Mental Element in tortious liability: Mental element is an essential element in most forms of crime and generally under criminal law where a mere act of the person is not enough to constitute the liability but Mens rea should be present i.e. guilty mind. In law of torts, the branches like assault, battery, false imprisonment, malicious prosecution etc attract the concept of mental element. A man can’t be punished for something which he never meant. However your fault may be relevant sometimes as well as irrelevant in some cases. We may compare the conduct of the defendant sometimes with that of a reasonable man and make him liable only when his conduct falls below the standard of a reasonable man. When the circumstances demand care and the person fails to perform the duty to take care, he is liable for the tort of negligence. But there are certain areas where the mental element is quite irrelevant. In such cases, the innocence of the defendant or an honest mistake on his part is no defence as in the case of defamation. You can’t take the defence that you never intended to defame the particular person after defaming him. In Rylands vs. Fletcher, court laid down the rule of strict liability. Under this rule, if a person makes non-natural use of his land collecting there something which is likely to do mischief if escapes, he will be liable if the escaped thing causes damage. The rule of strict liability is also referred in the case of hazardous industries. Malice- In Law and in Fact Malice in law means a wrongful act done intentionally without just cause or excuse. As in the case of defamation, it may be said that the statement is made without lawful justification. Thus in the case of malice in law, ‘intension’ is important. Malice in Fact or actual malice is done with the feeling of ill-will. It also means the evil motive for wrongful act. Thus ‘motive’ is important. Now the difference between intension and motive can be understood with the help of a simple example. The intention of a person may be to commit theft but the motive behind it may be to buy food or to buy some medicines. Thus we can judge that motive of a wrongful act is not important. An act can’t be justified on the basis that its motive was good. Hence for an act to be wrong, its intension is necessary and not the motive.


General Defenses to a Tort Claim


Volenti non fit Injuria: The maxim means “voluntary taking of the risk”. When a person consents to some harm upon himself, he has no remedy for that. In case, when the plaintiff voluntarily agrees to suffer some harm, he is not allowed to complain for that. Similarly when you invite somebody to your house, you cannot sue him for trespass nor can you sue the surgeon after submitting yourself to his instruments. Many a times, the consent may be implied or inferred from the conduct of the parties. For instance, in the game of cricket, if you are a part of the audience, and during the hours of the game a six comes and hits on your head, then you can’t claim for compensation since you voluntarily consented for the risks of sitting in a stadium. The consent in such case must be free, obtained without fraud and compulsion.

The elements of this defense are:

1. That the plaintiff knew of the risk. 2. That he consented to suffer the consequences of the risk. Thus merely knowing of the risk is not important but assent to such risk must also be present. However the doctrine of Volenti non fit Injuria is not available in rescue cases.

These are an exception to the application. When the plaintiff voluntarily encounters a risk to rescue somebody from an imminent danger created by the wrongful act of the defendant, he cannot be met with the defense of Volenti non fit Injuria.

Plaintiff the wrongdoer: If the plaintiff himself did something wrong which caused him injury, then he can’t ask for compensation. For example if a thief illegally enters the defendants house and gets bitten by the dog. But the case may be different if the thief enters your house and encounters a lion.

Inevitable accident: these are caused by the events that could not be foreseen and avoided despite reasonable care on the part of the defendant. 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 defendant, it is inevitable accident. But it does not means absolutely inevitable, but “not avoidable by such precautions as a reasonable man doing such an act could be expected to take”. Thus when old and worn out tyres are used in the vehicle and the same bursts out when the vehicle is moving with the excessive speed, the defense of inevitable accident is not available.

Act of God: it may be defined as an extraordinary occurrence of circumstances which could not have been foreseen as an accident due to natural cause without human intervention. Two important essentials of this defense are that there must be the working of natural forces and the occurrence must be extraordinary which could not be anticipated.

Private defense: it permits use of reasonable force to protect one’s property or person. If the defendant uses the force that is necessary for self-defense, he will not be liable for the harm caused thereby. But there must be imminent threat to personal safety or property. Also the use of force must be reasonable and hence if someone strikes you doesn't means that you will chop off his hand with a sword.

Mistake: it is generally no defense in tort law. Entering the land of another thinking that to be one’s own is trespass, taking away another’s umbrella thinking that to be one’ own, driving off plaintiffs car thinking that to be yours etc is not a defense at all.

Necessity: an act of causing damage if done under necessity to prevent a greater evil is not actionable even though it harms another. Necessity should be distinguished from private defense In necessity, the harm is on an innocent person whereas in private defense the harm is on the plaintiff himself. Necessity should also be distinguished from inevitable accident. In necessity, the harm is an intended one whereas in inevitable accident, the harm is caused in spite of the best efforts to avoid it.

Statutory authority: the damage resulting from an act, which is directly authorized by the legislature, is not actionable even though it would be tort otherwise. When an act is done under the authority, it is a complete defense and the injured party has no remedy except from claiming such compensation as may have been provided by the statute. The defense is further divided into absolute and conditional authority. In the former case, even thought the act causes nuisance or some other harm, it is not actionable. In conditional authority, the act is authorized only when it is possible without creating any nuisance and other harm. Thus a hospital authority can’t open up a smallpox center in the residential area when it was authorized to do so.


Vicarious Liability

When a person performs an act by himself, he is self liable for any actions arising out of that act. But there are certain cases where the liability of one person can be faced by another and this concept in simpler terms is stated as Vicarious Liability of one person for the acts of another.

There are certain relationships where vicarious liability takes into form such as Master-servant relationship, liability of partners for each other’s tort and principal agent relation. For instance in the case of master-servant, when the servant commits any wrong which invites damage to any third party, then the third party can sue not only the servant but the master too because it was the servant who did the wrong but it was the master who had control over his servant and the servant was working for the profit and on the behalf of the master.

a. Master and Servant: the concept of vicarious liability states here that for the wrongful acts of the servant, not only the servant but the master too can be held liable. Moreover the wrongful act done by the servant is deemed to be done by the master himself. The basic principle is laid down by the doctrine of respondent superior i.e. let the superior respond. In comparison to the servant, the master is in better position to pay off the damages. But for this action to be true, the servant must perform the tort in the course of employment. But moving more down into the layer, an act is considered to be done in the course of employment when it is authorized by the master. An authorized act may be done in right manner or the wrong.

To judge that who is a servant, the test of Hire and Fire is applied. If a person is having the power to throw out the person from his job then he is his master. U can take the example of a taxi driver. Does mere boarding a taxi makes the taxi driver a servant of yours? No because you can’t fire him out of the job. Another test that is applied here is Direction and Control test i.e. the power of controlling the actions of a servant. Under this definition, again a taxi driver may not be considered to be a servant of yours as he may simply discard your directions. It must be kept in mind that a servant is distinguished from an Independent Contractor because he is not subject to any control. Moreover he works by taking his own decisions. Thus in cases where the master is not able to control the actions of the servant, then he is not to be held liable in such cases.

But there are certain exceptions to the above stated. There are cases where an employer is liable for the acts of an independent contractor as in the cases of strict liability. In the case of Rylands v. Fletcher, the employer could not escape the liability for the damage caused to the plaintiffs when the escape of water from a reservoir caused damage to the plaintiff’s coalmine because the reservoir was constructed by the defendants from an Independent Contractor.

b. Principal and Agent: an agent is one who is authorized to do an act by another person i.e. principal. On should focus on the maxim, Qui facit per alium facit per se which says that “the act of the agent is the act of the principle” there is no difference between Principle-Agent and Master- Servant relationship. In both the cases, whether the person is an Agent or Servant, he is vicariously liable.

c. Partners: in a partnership, the partners are responsible for each other’s actions either jointly or severally. Jointly means ‘all together’ whereas severally means ‘all separately’. ​

When a servant commits fraud in the course of employment, the master will be held liable if the fraud directly or indirectly benefits the master. But if the fraud is done for the self benefit of the servant and does not provides any benefit to the master, then master can’t be held liable in any case. For instance, in a bank case, where one of the employees misappropriated a cheque for his personal gain, the bank is not to be held liable. Sometimes the employer forbids his servant from doing certain acts. But even this does not relieve the master from the liability of the acts arisen from the acts of the servant. This is because if express prohibition were to be a defense, then every employer would escape the liability from the acts of the servant.


Minors capacity to be sued

A minor cannot sue any other person directly but with the help of his next friend. Under criminal law, a child under seven years of age cannot be held liable for any offence because he is assumed to be incapable of doing any wrongful act. But minority is no defense under law of torts and a minor is liable in the same manner an adult may be held liable. Under tort law, a child of seven years could be sued for trespass in a similar manner a person of full age may be sued. However if the tort is such as requires a special mental element such as malicious prosecution or conspiracy, then a child cannot be held responsible for the same unless sufficient maturity for committing that tort is can be proved in his case.

Independent and Joint Tort-feasors When two or more persons commit a tort independently of each other but their actions produce same result then they are said to be independent tort feasors. For instance, if two motorcyclists are coming from opposite direction towards each other and they both strike each other. In the process of the accident, a pedestrian was crushed and killed, then the two motorcyclists will be said to be independent tort-feasors. When people commit a tort together, they are said to be joint tort feasors. For example, if A and B enter C’s house with an intention to commit theft and in the process to commit theft, A hits C with knife. Then for the death of C, both A and B will be held liable and not only A. Certain relationships like Principal- Agent, Master-Servant, and Partners in a partnership firm are also regarded as joint tort-feasors. The liability of joint tort-feasors is joint as well as several i.e. they can be asked to pay the compensation either jointly as well as separately. Each one of them can be made to pay the full amount of compensation.


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