Unit-1

EVOLUTION DEFINITION, NATURE, SCOPE AND OBJECTS OF LAW

OF TORTS

Learning Outcome: The Students will be able to distinguish tort from crime, breach of contract,
identify the requisites for a wrongful act to be classified as a tort.

Topics to be covered:

1) Law of Tort and Law of Torts

2) Meaning and definitions of torts
3) Nature of law of torts - Tort distinguished from crime, breach of contract and trust
4) Essentials of Tort
5) Constituents of tort-damnum sine injuria and injuria sine damno
6) Changing scope of law of torts: Principles of Liability – Fault; Wrongful intent;
Negligence; Liability without fault; Place of motive in torts.

1) Law of Tort and Law of Torts

Books referred: S.P. Singh, R.K. Bangia and Shivani Verma

Recommended Question:
Explain the approaches of prominent jurists on 'Law of Tort or Torts' with relevant case laws.

Before we begin to study the subject we need to make sure to understand if the subject is called
the Law of 'Torts' or 'Tort'. This is not just a confusion for a teacher like me or young students
like you, this was also a confusion and a topic of debate among renowned jurists (expert or writer
on law).

The question was debated primarily by two jurists - Salmond and Winfield. Other jurists either
support either or both of them.

Salmond - Torts - Narrow Theory

- Specific torts beyond which no liability
- A wrong should fit under any one of the pigeon holes
- If it cannot then there is no tort
- Quote by Salmond
- Compared torts with crime (How it is similar)
- Absence of a general principle of liability

He said that the Law of Torts consists only of a number of specific

wrongs beyond which the liability under this branch of law cannot arise.
He elaborates that there is no general principle of Liability and if the plaintiff can place his
wrong in any of the pigeon holes, each containing a labelled tort, he will succeed. This theory is

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also known as the ‘Pigeon-hole Theory’. If there is no pigeon-hole in which the plaintiff’s case
could fit in, the defendant has committed no tort.

He said, “Just as the criminal law consists of a body of rules establishing specific offence, so the
law of torts consists of a body of rules establishing specific injuries. Neither in the one case nor
in the other, there is any general principle of liability. Whether I am prosecuted for an alleged
offence or sued for an alleged tort, it is for my adversary to prove that the case falls within some
specific and established rule of liability and not for me to defend myself by proving that it is
within some specific and established rule of justification or excuse.”

Salmond
Winfield

Parties: Civil (Plaintiff & Defendant), Criminal (Prosecutor & Defendant), Family (Petitioner &
Respondent)

Winfield - Tort - Wider Theory

- General principle present (unless legal justification) Eg. Detention of Student
- Specified Torts + Wider Scope available
- Quote by Winfield
He said there is a general principle that all wrongs are actionable unless there is any legal
justification.

Example - Me detaining a student after lecture hours is wrong but I'm doing so for her to
complete her course credits

According to this theory, tort consists not only of those torts which have acquired specific
names but also includes the wider principle that all unjustifiable harm is tortuous.

Winfield says if I injure my neighbour, he can sue me in tort whether the wrong happens to have
a particular name like assault, battery or whether it has no special title at all; and I shall be liable
if I cannot prove lawful justification.

The theory has found support in India.

In the case of M.C.Mehta v. Union of India AIR 1987 SC 1086 (Strict Liability).
Chief Justice P.N.Bhagwati started, "... we have to evolve new principles and lay
down a new normal which will adequately deal with new problems which arise in a

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highly industrialised economy. We cannot allow our judiciary thinking to be constricted by
reference to the Law as it prevails in England… we are certainly prepared to receive light from
whatever source it comes from but we have to build our own jurisprudence."

In the case of Jay Laxmi Salt work (P.) Ltd. v. State of Gujarat (1994) 3 J.T. (S.C.) 492, the
Supreme Court observed "Law of torts being a developing law, its frontiers are incapable of
being strictly barricaded."

Views by other jurists

Each theory seems to have received some support.
Chief Justice Holt in the case of Ashby v. White supported Winfield
Chief Justice Pratt in the case of Chapman v. Pickersgill supported Winfield by saying, “Torts
are infinitely various, not limited or confined.”
Pollock supported Winfield’s view.
Heuston was of the view that Salmond was misunderstood as he never committed himself to the
proposition that law of torts is a closed and inexpansible system.
Dr. Glanville Williams similarly says “to say that the law can be collected into pigeon holes does
not mean that those pigeon holes may not be capacious (roomy/having space) nor does it mean
that they are incapable of being added to”

Illustrations of creation of new torts by Judiciary

Deceit - Pasley v. Freeman (1789)
Inducement of Breach of Contract - Lumley v. Gye (1853)
Rule of Strict Liability - Rylands v. Fletcher (1868)
Inducement to a wife to leave her husband - Winsmore v. Greenbank (1745)
Intimidation - Rookes v. Barnard (1964)
Negligence in its current form

Conclusion of the Debate

Winfield later modified his stand by saying that both the theories are correct - mine being
broader in point of view and Salmond’s narrower. He states that from a narrow and practical
point of view, Salmond’s theory will suffice but from a broader outlook mine is valid.

If we look at the Law of Torts right now keeping aside the development of law, past and future,
we can see that it corresponds to Salmond’s theory (Present). But if we take the wider view that
the law has grown for centuries and is still growing then Winfield’s seems to be relevant.

Example: It is the difference between treating a tree as inanimate for the practical purposes of
the moment like to avoid a collusion, treating it like a block of marble and then realising that it is
animate because we know that it has grown and is still growing.

From the discussion it can be safely concluded that both the theories are correct, it is just a
question of approach and looking at things from a certain angle.

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 2) Meaning and Definition of Torts
Books referred: S.P. Singh, R.K. Bangia and Shivani Verma

Recommended Question:
- Explain the nature of Torts with authoritative definitions.
- Differentiate between Torts and Crime, Breach of Contract and Trust

Etymology of ‘Tort’ (History of tracing the origin of a word)

Lati
n
Eng Ro
lish ma
San
skrit

● Tortum means to twist and so the word tort means a conduct which is not straight or
lawful, but on the other hand, twisted, crooked or unlawful.
● The Law of Torts consists of various torts or wrongful acts whereby the wrongdoer
violates some legal right vested in another person.
● The law imposes a duty to respect the legal rights vested in the members of the society
and the person making a breach of that duty is said to have done the wrongful act.
For example, the violation of a duty not to injure the reputation of someone else’ results in the
tort of defamation, violation of a duty not to interfere with the possession of land of another
person results in the tort of trespass to land and the violation of a duty not to defraud another
results in the tort of deceit.

Once we understand the core meaning of what is a tort we need to look at how it is defined.

Definitions
So far, no scientific definition of tort has been possible which mentions all the specific elements.
The main reason for it is that different wrongs are included under torts and each of the
wrongs are of diverse species having its own peculiar historical background.

Salmond: “It is a civil wrong for which the remedy is common law action for unliquidated
damages and which is not exclusively the breach of the contract or the breach of the trust or
other merely equitable obligation.”

Winfield: “Tortious liability arises from the breach of a duty primarily fixed by law. This duty is
towards persons generally and its breach is redressable by an action for unliquidated damages”

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Fraser: “Tort is an infringement of a right in rem (right in general) of a private individual giving
a right of compensation at the suit of the injured party.”

Section 2 (m) of Limitation Act, 1963: “tort” means a civil wrong which is not exclusively the
breach of a contract or the breach of a trust;”

Civil Wrong
An infringement of a person's rights. Then you may ask what do you mean by a criminal wrong?
Criminal wrongs are considered to be wrongs against the community as a whole, while civil
wrongs are considered to be wrong against the individual. Generally criminal acts are considered
a wrong against the society. Eg. you crashed into a vehicle - Civil Wrong but if you crashed into
a vehicle and killed someone - Criminal Wrong under Section 304 of IPC - Causing Death by
Negligence - up to 2 year imprisonment or fine or both

Civil Law and Common Law https://onlinelaw.wustl.edu/blog/common-law-vs-civil-law/

Unliquidated and Liquidated Damages

Example of Liquidated Damages (A contracts with B to pay B Rs. 1,000 if he fails to pay B Rs.
500 on a given day. A fails to pay B Rs. 500 on that day. B is entitled to recover from A such
compensation, not exceeding Rs. 1,000, as the Court considers reasonable

Breach (an act of breaking or failing to observe a law, agreement, or code of conduct)

Trust (a fiduciary relationship in which one party holds legal title to another's property for the
benefit of a party who holds equitable title to the property)

Infringement (the action of breaking the terms of a law)

Right in rem (a duty to recognise the right imposed on all people in general)

Right in personam (confers legal rights on a single person or party to a contract)

Compensation (something, typically money, awarded to someone in recognition of loss,

suffering, or injury)

Author S.P.Singh says in his book, "Much ink has been split in defining a tort. In other words, it
is not feasible if not impossible to give any precise or scientific definition. It is for this reason
that the law of torts is still growing and has not yet reached its saturation point."

One such example is of the case of Indra Sarma v. V.K.V. Sarma (AIR 2014 SC 309) in which
the Supreme Court extended the law of torts into domestic and live-in relationships by holding
that live-in relationship with a married person amounts to intentionally alienating one spouse
from the other and is an intentional tort.
(https://www.simplekanoon.com/family-law/indra-sarma-vs-v-k-v-sarma-1512/)

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 3) Nature of Torts
As we have seen that 'tort' cannot be defined as a whole so it becomes necessary to understand
what exactly is the nature of Torts. As we cannot define "what it is" we can determine "what it
is not". This can be done by comparing it with other wrongs.

In order to determine the nature, we will be comparing Torts with:

- Crimes
- Contract
- Trust

Tort and Crime distinguished

“Wrongs are divisible into two sorts or species; private wrongs, and public wrongs. The former
are an infringement or privation of the private or civil rights belonging to individuals,
considered as individuals; and are thereupon frequently termed civil injuries: the latter are a
breach and violation of public rights and duties, which affect the whole community, considered
as a community; and are distinguished by the harsher appellation of crimes and
misdemeanours.”
- Sir William Blackstone (English Jurist)

Let’s understand the difference by looking at an example. If a person causes an obstruction

outside a residential building as the wrong affects only the residents of the building, it would
be considered as a tort of private nuisance. If, however, a similar obstruction is caused in the
middle of a public road, it would amount to offence of public nuisance stated in Section 268 of
the Indian Penal Code.

Now, taking the example of Negligence. A clear distinction exists between simple “lack of
care” incurring civil liability and very “high degree of negligence” which is required in
criminal cases.
# Jacob Mathew v. State of Punjab, AIR 2005 SC 3180
(https://www.legalserviceindia.com/legal/article-6494-case-summary-jacob-mathew-vs-state-of-
punjab.html)
Held: Due to hospital management the gas cylinder was not available or the oxygen gas cylinder
was found empty. Hence, the hospital may be liable in civil law. Doctors (appellant) cannot be
held guilty of the offence u/s 304A IPC (Punishment for culpable homicide not amounting to
murder)

In this case the Supreme Court pointed out the difference between Civil and Criminal Negligence
by stating, “For negligence to amount to an offence, the element of mens rea must be shown to
exist. For an act to amount to criminal negligence, the degree of negligence should be much
higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a high
degree may provide a ground for action in civil law but cannot form the basis of prosecution.”

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Mens rea (the intention or knowledge of wrongdoing that constitutes part of a crime, as opposed
to the action or conduct of the accused)

Prosecute (officially accuse someone of committing a crime in a law court)

Sometimes the same set of facts may constitute both a tort and a crime. The civil and criminal
remedies in such a case are not alternative but they are concurrent (at the same time). The
wrongdoer may be required to pay compensation under the law of torts, he may also be held
liable under criminal law.

Illustration: If Aman digs a ditch on a public road resulting in inconvenience to the public at
large, Aman has committed the offence of public nuisance as defined under Section 268 of IPC.
If X, a passer-by falls into that ditch and thereby gets injured, Aman’s act also becomes a tort of
private nuisance as against X. Not only will Aman be punished under criminal law for the
offence of public nuisance, he will also be liable to compensate X under the law of torts.

Image source: Pg.no - 5 & 6 Law of Torts; Dr. Shivani Verma

In addition to the above mentioned differences:

Crime Tort

In crime the intention is the In tort the intention is of

main factor subordinate importance

Crime is regarded as a public Tort is regarded as a private

wrong wrong

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Tort and Contract distinguished

Background: The distinction between tort and contract was recognised and stated in its present
form only in comparatively modern times. Until the 16th century the form of action for a breach
of a simple contract was not provided, but its purpose was served by an action of trespass on the
case. The growth of trade and commerce which resulted in the increase of litigation in
contracts made a special form of action of ‘assumpsit’
(https://www.britannica.com/topic/assumpsit) by converting the old action of trespass on the
case. In the 17th century this action had become very popular. It was at this stage that the
distinction between tort and contract emerged. When the forms of actions disappeared in the
last century, greater attention to juridical principles and distinctions became possible and the
difference between a tort and a breach of contract was stated in the form of distinction in the
nature of the rights or duties.

Now there is a well marked distinction between contract and tort.

“At the present day, tort and contract are distinguished from one another in that the duties in the
former are primarily fixed by the law, while in the latter they are fixed by persons themselves.
Moreover in tort the duty is towards persons generally, in contract it is towards specific persons
or a specific person.”
- Professor Winfield

A breach of contract results from breach of duty imposed by the parties of contract themselves.
But a breach of duty under torts is a result of breach of such duties which are not undertaken by
the parties themselves but have been imposed by the law.
Eg. I have a duty not to defame anyone but I have not taken upon the duty voluntarily but it has
been imposed upon me by law and every member of the society.

Tort Contract

Duty is fixed by law itself Duty is fixed by the party themselves

Eg. Not to harm someone is said by law to Eg. X agrees to sell goods to Y at a price and
every individual later refuses. Here there is a breach of duty
which was agreed to perform under a contract

Duty towards every person in the society Duty towards a specific person or persons

Damages are unliquidated i.e. not Compensation in case of breach is

predetermined predetermined to the extent of the loss

Violation of right in rem Violation of right in personam

Committed against or without consent Contract is based on the consent of parties

Privity need not be proved Privity needs to be proved

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 Motive is taken in account Motive is not relevant

Uncodified Codified

The general rule is that where tort and contract overlap, the co-existent rights and duties do not
adversely affect one another. The choice rests with the plaintiff to sue for breach of contract or in
tort.
Section 22 of the Limitation Act specifies that in the case of a continuing breach of contract or
tort, a fresh period of limitation begins to run at every moment of time during which the breach
continues.

In certain cases, the same incident will give rise to a liability both in contract and in tort. For Eg.
when a passenger whilst travelling with a ticket is injured owing to the negligence of the railway
company, the company is liable for a wrong which is both a tort and a breach of a contract.

Tort and Breach of Trust distinguished

Meaning of Trust (https://legaldictionary.net/trust/ )

An agreement in which a fiduciary relationship is created in which one party (the Trustor) gives
another party (the Trustee) the right to hold ownership of certain assets, and to manage them for
named beneficiaries.
Eg. I trust my property to my sister for the benefit of my mother

Examples of Breach of Trust are:

● Selling property at an undervalue;
● Failing to dispose of depreciating assets;
● Using Assets for his own use;
● Investing totally unwisely;
● Failing to discharge debts;
● Failing to account for profits

1. Damages: Damages claimed in law of torts are unliquidated while in the case of breach
of trust the damages are liquidated. It cannot be strictly said to be damages but more
appropriately can be called as compensation.
2. Origin: The administration of Trusts for centuries has been within the jurisdiction of as
special court called the Chancery Division of the High Court in England while law of
torts are dealt under the common law courts.

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4) Components of Torts (extracted from the definition)
(a) Duty primarily fixed by law
The duty under torts is fixed by the law and not by agreement of the parties. It cannot be
created nor negated.
Eg. I should not trespass on your land is a duty which is fixed by the law on me. We have not
created it by a contract and we cannot even extinguish it through a contract.

(b) Duty towards persons generally

If a duty is towards a specific person then it cannot be said to have arose from tort.
Eg. I am under a legal duty not to commit assault. If I do, I can be sued in court.
This element of generality is therefore an important factor as opposed to specific duty in case of
contracts.

(c) Action for unliquidated damages

The difference between liquidated and unliquidated damages is important to note.
Where the plaintiff sues for a pre-determined and inelastic sum of money, she is said to have
claimed liquidated damages.
But when she sues for an amount as the court in its discretion is at liberty to award she is
claiming unliquidated damages.

“The action for unliquidated damages is a pretty sure test of tortious liability” - Winfield

# State of Rajasthan v. Vidhyawati AIR 1962 SC 933

In this case, a government servant negligently drove a government vehicle and injured a
pedestrian who later succumbed to his injuries. The Supreme Court held the Government of
Rajasthan liable for the tortious act of its servants like any other private employer. Here, the
damages claimed by the plaintiff were Rs. 25,000 but the court awarded Rs. 15,000.
If we take this element of tort, we can easily distinguish it from a contract where the amount of
loss is always pre-determined and inelastic.

5) Essentials of Tort
1. There must be a wrongful act or omission on the part of a person
2. That wrongful act or omission must result in legal damage to another
3. The wrongful act or omission must of such a nature as to give rise to a legal remedy
4. Ubi jus ibi remedium

1) Wrongful Act or Omission

- Breach of duty that is fixed by the law
- What is a duty in law? It may mean to be a legal limitation or restriction or positive
assertion of an act. A person is required to behave in a manner which any reasonable
person in given circumstances will
- If the person does not behave as a responsible, prudent person or intentionally breaks
the duty then that person is deemed to have committed a wrongful act.

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 Eg. Driving a motorcycle at a high speed, beats a person out of road rage, keeps a wild
animal on own land which escapes and harms someone
Legal duty v. Moral duty v. Religious duty
Eg. A takes care of B (her neighbour) during sickness and A gets better. But when B gets
sick A does not take care and B becomes disabled - Breach of moral duty (Not
enforceable)

Even in case of a breach of a religious duty, which is not imposed by law, an action
cannot be maintained.
# Dhadphale v. Gurav (1881) 8 Bom 122
D, as servant of the Hindu temple had a right to get the food offered to the idol. The
defendant Mr. G was under the obligation to the idol to offer food. Mr. G did not do so.
The servant therefore brought a suit against him for damages.
Held: The defendant was under no legal obligation to supply food to the temple’s
servant, and though his omission to supply food to the idol might involve a loss to the
plaintiff, it was a breach of religious duty and could not entitle the plaintiff to maintain
a suit.
Lawful excuse or justification
Eg. A police officer in following a thief trespassed the land of Mr. A. Here the police
officer will not be deemed to have committed a breach of legal duty because of lawful
excuse or justification
Legal Damage: Eg. Driving a motorcycle on the wrong side is a breach of legal duty and
is not actionable in tort unless someone is injured.

2) Legal Damage
- Invasion or infringement of a private legal right
- Plaintiff to prove that there has been legal damage caused to her due to wrongful act of
the defendant
- Even if the plaintiff has not suffered any loss, she may succeed in the suit if a private
legal right is violated

What is right?
Ihering: Rights are legally protected interests
Interests recognised and protected by law

But here we are talking about private rights. Private rights are those rights which vest in a
person by virtue of law. These are rights which belong to a particular person to the
exclusion of the world at large.
Eg. Right to reputation, Right to bodily safety and freedom

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Rights and Duties are correlative. So, whenever a person’s legal right is infringed or violated
without a lawful excuse the she has a right of action against the person who infringes or violates
it.
Eg. A trespasses the land of B. Here, A has violated the private legal right of B by committing
breach of legal duty.

Then there are public rights.

These are rights which belong in common to the members of the State generally.
Eg. Public Peace
When such a public right is violated then the remedy is by indictment (criminal charge) In other
words, the State takes action against the offender (or wrongdoer) so as to punish the person.
However, sometimes a private action can also be taken if a special, peculiar and substantial
damage to the plaintiff occurs.
Eg. A dacoit enters a society vicinity, threatens the people of the society and also beats up
Mr. A who is a resident. Here the dacoit has disturbed public peace and has also inflicted
particular damage to Mr. A. The dacoit will be held liable under tort for damages as well
as the State will take action against the person under criminal law.

3) Legal Remedy
- Act complained of must give rise to a legal remedy
- There must be some legal remedy against the wrongful act
- All civil injuries are not torts
- We can differentiate on the basis of remedy available whether it is a tort - action for
liquidated damages
- But we need to keep in mind that it is not the only remedy. There is injunction, specific
restitution of property and self help
Eg. Where a person has been wrongly dispossessed of their cow, they can recover their
Cow through specific restitution of property and also damages

4) Ubi Jus Ibi Remedium

“If the plaintiff has a right, he must of necessity have a means to vindicate (establish) and
maintain it, and a remedy if he is injured in the exercise of enjoyment of it, and indeed it
is a vain thing to imagine a right without a remedy: for want of right and want of remedy
are reciprocal”
- C.J. Holt in Ashby v. White (1703) 2 Ld Raym 938
- Law of Torts is a development of the maxim
- It translates into “where there is a right, there is a remedy”
- Or “there is no right without a remedy”
Conclusion:
In order to determine whether a wrongful act is a tort it shall fall within the scope of:

Wrongful Act/Omission + Legal Damage + Legal Remedy = Tort

6) Constituents of tort - Damnum sine injuria and Injuria sine damno

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Wrongful Act/Omission + Legal Damage + Legal Remedy = Tort
is what we learned, but what if there is a breach of legal duty or right due to a wrongful act
or omission, but there was no legal damage? Will there be a legal remedy?

There are two important latin maxims which deal with this question:
1) Injuria Sine damnum (or Damno)
2) Damnun Sine Injuria

These two maxims help us to understand whether a person should or can approach the court in a
given circumstance. The test to know whether the defendant should or should not be liable is
not whether the plaintiff has suffered any loss or not but the real test is whether any lawful
right vested in the plaintiff has been violated or not.

1) Injuria sine damnum

It means violation of a legal right without causing any harm, loss or damage to the plaintiff.

Illustration: If A trespasses your land but there was no harm to your land, can you sue? The
answer is yes because trespass on land is not lawful. It is a wrongful act. If there is harm to your
land? Then of course you can sue because it fulfils “wrongful act + legal damage + legal
remedy = Tort”

A trespass on land in itself is enough to sue, you need not prove that there has been a harm to
your land to take the wrongdoer in court.

# Ashby v. White (1703) 2 Lord Raym, 938

Plaintiff was a legal voter and his name was there in the voter list. The defendant was a returning
officer i.e. in-charge of the election. He refused the plaintiff to offer or tender his lawful vote to
his candidate. Plaintiff sued him for compensation even though no loss was caused in terms of
money.
Held: Court held that the defendant was liable to pay compensation because he had violated a
legal right of the plaintiff to vote. Even though the plaintiff suffered no actual loss in terms of
money, or the candidate to whom the plaintiff was interested got elected. Defendant had
committed a tort and therefore liable to pay compensation.

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“Every injury imports a damage, though it does not cost the party one farthing. For a damage is
not merely pecuniary but injury imports a damage, when a person is thereby hindered of his
right. As in an action for slanderous words, though a man does not lose a penny by the reason of
speaking of them, yet he shall have an action. So if a man gives another a cuff on his ear, though
it costs him nothing, not so much as a little diachylon (plaster), yet he shall have his action. So a
man shall have an action against another for riding over his ground, though it does him no
damage, for it is an invasion of his property and the other has no right to come there.”

# Bhim Singh v. State of J&K AIR 1986 SC 494

The petitioner, an MLA of J&K Assembly was wrongfully detained by the police while he was
going to attend the Assembly session. He was not produced before the Magistrate within the
requisite period. As a consequence of this, the member was deprived of his constitutional right to
attend the assembly session (Article 88). There was also a violation of the fundamental right to
personal liberty guaranteed by Article 21. By the time the petition was decided by the SC, Bhim
Singh had been released, but by way of consequential relief, exemplary damages of Rs. 50,000
were awarded to him.

How do the courts compute the cost when there is no real damage?
Generally nominal damages may be awarded. It may be only Rs. 100 too. The amount does not
matter here because the purpose of law in so far as the violation of right is concerned has been
fulfilled by rendering a legal remedy.

But if the courts find that the violation of legal right is owing to any mischievous or malicious
act, the court may grant exemplary damages. Eg. For Bhim Singh

# Ashrafilal v. Municipal Corporation of Agra (1922) ILR 44 All 202

The plaintiff's name was deleted, dropped from the voter list by the defendant corporation, so the
plaintiff couldn't exercise his right to vote. Plaintiff sued the corporation for compensation.
Court applied the principle of Ashby v. White.

2) Damnun sine injuria

This maxim means damage which is not coupled with an unauthorised interference with the
plaintiff’s lawful right. Causing damage, however substantial, to another person is not actionable
in law unless there is also a violation of a legal right of the plaintiff.

“The mere fact that a man is injured by another’s act gives in itself no cause of action; if the act
is deliberate, the party injured will have no clain in law even though the injury is intentional, so
long as the other party is exercising a legal right”
- Grant v. Australian Knitting Mills (1935) All E.R. 209,0217

# Gloucester Grammar School Case (1410) Y.B. Hill 11 Hen, 4 of 47, p.21, 36
The defendant had set up a rival school for teaching grammar near the plaintiff’s grammar school
due to which the plaintiff suffered the loss as his students started joining the defendant's school.
Due to this competition, plaintiff had to even lower down the fees of his school.

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Held: Plaintiff sued the defendant for compensation, but no compensation was given as there is
no legal injury to the plaintiff.

“If I have a mill and my neighbour builds another mill whereby the profit of my mill is
diminished, I shall have no action against him, although I am damaged. But if a miller disturbs
the water from going to my mill, or does any nuisance of that sort, I shall have such action as the
law gives.”
- Justice Hankford

# Mogul Steamship Co. v. McGregor, Gow & Co. (1889) 28 ABD 598
A,B,C & D all ship owners combined together to drive F, a rival ship owner out of trade by
offering special concessions to customers who would deal with them to the exclusion of F. The
plaintiff (F) suffered loss and sued all 4 on the ground of conspiracy.
Held: That the defendants had done nothing unlawful, by combining for the purpose of trade and
competition. They acted with the lawful purpose of expanding trade and increasing profits to
themselves though the intention was to cause the plaintiff to lose trade.

# Ushaben v. Bhagyalaxmi Chitra Mandir AIR 1978 Guj. 13

Plaintiff sued the defendant for permanent injunction as the movie Jai Santoshi Maa was hurting
religious sentiments. Goddess Saraswati, Laxmi and Parvati were depicted as jealous and were
ridiculed.
Held: No compensation was given as there was no legal injury to the plaintiff.

# Action v. Bundell (1848) 12 M & W. 324

The defendant by digging a coalpit intercepted water which affected the plaintiff’s well at a
distance of 1 mile.
It was observed by the court that “The person who owns the surface may dig therein and apply
all that is there found to his own purpose, at his free will and pleasure. And that in the exercise
of such rights if he drains the water collected from underground springs and this inconvenience
caused to the neighbour falls under damnum sine injuria which does not become a ground for
action.”

# Cheshmore v. Richards (1859) 7 HCL 349

The plaintiff, a mill owner for the past few years, was using water for his mill from a stream
which was fed by rainfall but not flowing in defined channels. The defendants sunk a well on
their land and pumped large amounts of water which would have otherwise flowed to the
plaintiff’s stream. This caused loss to the plaintiff.
Here again, the defendant was not held liable.

# P Seetharamayya v. Mahalakshmamma
Four defendants tried to ward off the flow of water into the plot from a stream by digging a
trench as well as a bund on their lands. The fifth defendant acting independently also did the
same to ward off water. As a result of this, the water now flowed to the plaintiff’s land causing
damage.
As a consequence, the plaintiff requested for the demolition of bunds and trench along with
damages for the loss caused.

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The Andhra Pradesh High Court held that the owner of the land on or near the river has a right to
build a fence upon their ground to prevent any anticipated damage. The court held that this is a
clear case of damnum sine injuria and stated that the defendants were not liable for the harm
caused.

# Town Area Committee v. Prabhudayal

The plaintiff constructed some shops without giving notice to municipal authorities and without
obtaining a prior sanction. The defendant demolished these shops. Plaintiff claimed damages for
the loss suffered.
It was held that if a person constructs a building illegally, the demolition of such a building by
the municipal authorities, though motivated by malice, would not be termed as injury to the
owners.

# Pagadala Narasimham v. The Commissioner and Special Officer, Nellore Municipality

The plaintiff's bus which was not in a working condition was parked on the road and caused an
obstruction to the traffic. The traffic police with the help of municipal employees removed the
bus from the road.
It was held that police officers were justified in their act, as they did that in the discharge of their
sovereign duties and so were not held liable.

# Vishnu Dutt v. Board of H.S. & Intermediate Education, UP

https://indiankanoon.org/doc/719975/
Vishnu was an intermediate student who was detained due to shortage in attendance. His
detention was found illegal by the court as the attendance registers of the college were not
maintained according to the rules of the Board. As a consequence of his detention, he lost a year.
The court however did not grant him damages.

“Mere loss of money or money’s worth does not constitute a tort”

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Mental Element in Tortious Liability
Mental element is considered to be important in crime in a general sense. As the act of a person
is required to be accompanied by a guilty mind i.e. mens rea. But it is not so easy to generalise
in torts.

In certain torts the mental element is relevant while in some it's not. We will understand this by
taking examples of torts.
- We may compare the conduct of the defendant with that of a reasonable person and
make them liable only if that conduct falls below the expected standard of duty to take
care. - Negligence
- If the defendant’s conduct was innocent in so far as the act done was due to an inevitable
accident. They will be excused from the liability.
- Necessity
# Cope v. Sharpe (1912) 1 KB 496
Necessity can be pleaded when the defendant's act is not done by a wrongful intent, but he is
compelled by the circumstances to cause some smaller harm intentionally in order to prevent a
greater evil. So it is a good defence to an action for trespass that the same has been committed to
prevent the spread of fire to the adjoining land.

- Inevitable accident
# Holmes v. Mather (1875) LR 10 Ex. 261
If the defendant’s horse for no fault on his part causes injury to somebody on a public
highway,the defendant can take the defence of an inevitable accident.

# National Coal Board v. J.E. Evans & Co. (1951) 2 KB 861

If the defendant has no reason to believe that there are electric wires beneath the land and the
same get damaged with excavation, s/he will not be liable.

Malice
The term malice has two different sense:
I. Malice in law - A wilful act done without just cause or excuse

“A person who inflicts an injury upon another person in contravention of the law is not allowed
to say that he did so with an innocent mind; he is taken to know the law, and he must act within
the law. He may, therefore, be guilty of malice in law, although, so far the state of his mind is
concerned, he acts ignorantly and in that sense innocently.”
- Viscount Haldane in Shearer v. Shields (1914)
Malice in law is presumed in case of an unlawful act.
Illustration: Influencer ranting about a teacher online

II. Malice in fact - Evil Motive (narrower concept)

# Town Area Committee v. Prabhu Dayal

→ Cases when malice becomes relevant in torts:

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1) When the act is otherwise unlawful and wrongful intention can be gathered from the
circumstances of the case.

# Balak Glass Emporium v. United India Insurance Co. Ltd AIR 1993 Ker. 3442

In a multi storeyed building the water from the upper storey under the control of the
defendant escaped to the lower floor, occupied by the plaintiff. There was evidence of ill will
between the plaintiff and the defendant. It was found that not only the tap of the upper floor
was left fully open but the outlet of the tank was also closed leading to only one interference
of wrongful intention and hence the plaintiff was held entitled to get the damages.

2) In certain torts like deceit, conspiracy and malicious prosecution, one of the essentials is to
prove that the defendant had malicious intention.

3) In case of defamation, if there is a presence of malice or evil motive present then the
defendant cannot plead the defence of qualified privilege or fair comment.
4) If the presence of malice is detected then it will lead to aggravation of damages.

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