Strict liability or absolute liability
This liability arises when some harm takes place without any intention or negligence on the part of the defendant, even then he is liable for it. This can happen in any of the following cases
- Unavoidable accidents
- Unavoidable mistake [Rylands v. Fletcher]
Battery in Law Relating To Torts
Battery implies the unlawful beating of another. It includes every willful, angry, violent or negligent touching of another’s person or clothes, or anything attached to his person or held by him.
Assault in Law Relating To Torts
It is a threatened or attempted physical attack by someone who appears to be able to cause bodily harm if not stopped. It indicates an intention, coupled with a present ability, of actual violence against his person, as by pointing a weapon at him when he is within reach of it.
Slander in Law Relating To Torts
Any defamation that is expressed in an ephemeral or transitory mode is usually considered slander. If it is said in a form that cannot be retained for future references, it is slander.
Libel in Law Relating To Torts
Like slander, libel also refers to statements or opinions that damage another person’s reputation. The difference is that libel takes the form of fixed, relatively permanent or printed material rather than verbal assaults.
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Damnum sine injuria in Law Relating To Torts
‘Injury’ here means ‘physical injury’ and ‘damnum’ means ‘financial loss’ or ‘loss of property’. Damnum sine injuria implies a legal wrong that causes no actual damage or injury to anyone. For example, a financial wrong caused by one could result in liability to the other, even though no physical harm has been caused to the other.
Injuria sine damnum in Law Relating To Torts
Injuria sine damnum implies a legal wrong that causes ho actual damage or injury to anyone. For example, someone got hurt by another’s vehicle due to his own fault; it is not the other person’s liability, so no financial loss is caused to him.
Tort in Law Relating To Torts
The word ‘tort’ implies a civil wrong. As per Section 2(m) of the Limitation Act, 1963, “Tort means a civil wrong which is not exclusively a breach of contract or breach of trust.”
Mens rea in Law Relating To Torts
“Actus non facit reum nisi mens sit rea” i.e. the act itself creates no guilt in the absence of a guilty mind. It just says that the act that is to be held as tort should be done with a guilty mind in order for the liability to be held against the perpetrator. It does not necessarily mean a criminal intent; it suffices even if the act is done either with wrongful intention or negligence.
Vicarious Liability for Wrongs committed by others
Responsibility in such cases is imputed by law on grounds of social policy or expediency. These case involve liability of master for the acts of his servant.
Re-caption of goods in Law Relating To Torts
This is usually done in the case of cattle; when they have been unlawfully detained by another. The actual owner can retake possession peacefully and by reasonable means.
Distress Damage Feasant in Law Relating To Torts
An occupier of a land has the right to keep cattle doing damage to his lands confined till he is paid damages by the owner of the cattle.
Bodily harm in Law Relating To Torts
It is an act or speech of defendant, intended to cause physical harm to the plaintiff. It is termed as a tort when it actually does cause that harm.
False Imprisonment in Law Relating To Torts
Restricting a person’s liberty without sufficient lawful justification, even if it is for a short duration of time. It implies placing unauthorized restraint over a person’s body. If a person is confined within certain limits so that he cannot move about freely we can say he has been falsely imprisoned.
It can even occur when he is restrained from leaving from an open space; it is not essential that he be imprisoned within four walls.
Re-entry on land in Law Relating To Torts
When someone is dispossessed of his land illegally, the person so dispossessed has the right of re-entry, but he can do so in a reasonable and peaceful manner.
Malicious Prosecution in Law Relating To Torts
Malicious prosecution implies initiating judicial proceedings against another, out of spite and without reasonable or justified cause. Such proceedings terminate in favour of that other person (defendant), but by that time, have caused damage to his reputation, personal freedom or property.
Nervous Shock in Law Relating To Torts
This branch of law is comparatively of recent origin. It provides relief when a person may get physical injury not by an impact, e.g., by stick, bullet or sword but merely by the nervous shock through what he has seen or heard.
Causing of nervous shock itself is not enough to make it an actionable tort, some injury or illness must take place as a result of the emotional disturbance, fear or sorrow.
The ever-growing role of tortious liability in Law Relating To Torts
The case of Jay Laxmi Salt Words (P) Ltd vs State Of Gujarat, 1994 stresses the role of this liability. Speaking on this case, the Supreme Court of India observed that ” Truly speaking entire law of torts is founded and structured on morality that no one has a right to injure or harm others intentionally or even innocently.
Therefore, it would be primitive to class strictly or close finality the ever-expanding and growing horizon of tortious liability. Even for social development, orderly growth of the society and cultural refineness, the liberal approach to tortious liability by courts is more conducive”
Hence, the role of torts and the ensuing liability is one which cannot be stressed enough.
Role of the State in Law Relating To Torts
In every society, the numerous interactions between the State and the citizens often raise legal issues, many of which fall within the area of the law of torts. A tort can be defined as a civil wrong, (not resulting from a breach of contract or a breach of trust or other wrong elsewhere defined or structured).
The remedy for such a wrong is unliquidated damages. As per Article 300(1) of the Constitution, the Government of India may sue or be sued in the name of the Union of India and the Government of a State may sue or be sued in the name of the State.
This can be done in relation to their respective affairs. However, this shall be subject to any provisions which may be made by an Act of Parliament or of the Legislature of such State, on such matter, and in which case, it shall prevail.
The case of State of Rajasthan Vs. Vidyawati was the first post – Constitution judgment on Liability of the State in matters of tort, as far as the Supreme Court is concerned. In this case the driver of a Government jeep, which was being used by the Collector of Udaipur, knocked down a person walking on a public footpath, resulting in the death of the injured.
Subsequently, the legal representatives of the deceased sued the State of Rajasthan and the driver for compensation / damages for the tort committed by the driver.
Although the court found that the driver was rash and negligent in driving the jeep and that caused the accident, the suit was decreed by the trial court as well as by the High Court.
The appeal against the High Court judgment was dismissed by the Supreme Court, which held that “The State of Rajasthan has not shown that the Rajasthan Union, its predecessor, was not liable by any rule of positive enactment or by Common Law.
It is clear from what has been said above, that the Dominion of India, or any constituent Province of the Dominion, would have been liable in view of the provisions aforesaid of the Government of India Act, 1858.”
Torts committed by a govt. Servant in Law Relating To Torts
In the case of State of Bihar Vs. Abdul Majid, the Court recognised the right of a Government servant to sue the Government for recovery of arrears of salary. However, a different decision was favoured by the Supreme Court in the case of Kasturi Lal Vs.
State of UP, in which, the plaintiff had been arrested by the police officers on a suspicion of possessing stolen property. Upon a search of his person, gold in large quantities was found and seized under the Code of Criminal Procedure. Later, the plaintiff was released, but the gold was not returned.
The reason was that the Head Constable in charge of the place where the said gold was stored had absconded with it. Hence, the plaintiff brought a suit against the State of UP, demanding the return of the gold or in the very least, damages for the loss caused to him.
It was found by the courts that the concerned police officers had failed to take the requisite care of the gold seized from the plaintiff, as provided by the UP Police Regulations.
However, When the matter was taken up by the Supreme Court, it was found that the police officers were negligent in dealing with the property, but the power to arrest a person, to search him and to seize property found with him, are powers categorized as sovereign powers.
It also determined that the act which gave rise to the present claim for damages has been committed by the employee of the State during the course of its employment. The claim, though, is not tenable because the employment is of sovereign nature, and hence, cannot be sustained.
The Supreme Court, therefore, gave the following decision in Kasturi Lal Vs. State of UP, “It was an attribute of sovereignty that a State cannot be sued in its own courts without its consent. This legal position has been substantially altered by the Crown Proceedings Act, 1947.
Hence, the doctrine of immunity which has been borrowed in India in dealing with the question of the immunity of the State, in regard to claims made against it for tortious acts committed by its servants, was really based on the common law principle which prevailed in England; and that principle has now been substantially modified by the Crown Proceedings Act.
In dealing with the present appeal, we have ourselves been disturbed by the thought that a citizen whose property was seized by process of law, has to be told, when he seeks a remedy in a court of law on the ground that his property has not been returned to him, that he can make no claim against the State.
That, we think, is not a very satisfactory position in law. The remedy to cure this position, however, lies in the hands of the Legislature.” Hence, action against the State was allowed henceforth.
The distinction between Sovereign and Non-Sovereign Functions
This was clarified in the case of N. Nagendra Rao Vs. State of AP. The court finally gave the following judgment, “In the modern sense, the distinction between sovereign or non-sovereign power thus does not exist. It all depends on the nature of the power and manner of its exercise.
Legislative supremacy under the Constitution arises out of constitutional provisions. The legislature is free to legislate on topics and subjects carved out for it. Similarly, the executive is free to implement and administer the law.
A law made by a legislature may be bad or may be ultra vires, but, since it is an exercise of legislative power, a person affected by it may challenge its validity but he cannot approach a court of law for negligence in making the law.
Nor can the Government, in exercise of its executive action, be sued for its decision on political or policy matters. It is in (the) public interest that for acts performed by the State, either in its legislative or executive capacity, it should not be answerable in torts.
That would be illogical and impracticable. It would be in conflict with even modern notions of sovereignty”.
In the above-mentioned case, the following tests were recommended by the court, in determining the nature of a legislative or executive function:
Is the State answerable for the act in courts “One of the tests to determine if the legislative or executive function is sovereign in nature is, whether the State is answerable for such actions in courts of law.
For instance, acts such as defence of the country, raising (the) armed forces and maintaining it, making peace or war, foreign affairs, power to acquire and retain territory, are functions which are indicative of external sovereignty and are political in nature.
Therefore, they are not amenable to jurisdiction of ordinary civil court. No suit under Civil Procedure Code would lie in respect of it. The State is immune from being sued, as the jurisdiction of the courts in such matters is impliedly barred.
” Further, the court said that, “No legal or political system today can place the State above (the law) as it is unjust and unfair for a citizen . to be deprived of his property illegally by negligent act of officers of the State without any remedy.
From sincerity, efficiency and dignity of (the) State as a juristic person, propounded in nineteenth century as sound sociological basis for State immunity, the circle has gone round and the emphasis now is more on liberty, equality and the rule of law.
The modern social thinking of progressive societies and the judicial approach is to do away with archaic State protection and place the State or the Government on a par with any other juristic legal entity.
Any watertight compartmentalization of the functions of the State as “sovereign and non-sovereign” or “governmental and non-governmental” is not sound.”
Also, in this case, the court emphasised the concept of the Welfare State, “In (a) Welfare State, functions of the State are not only defence of the country or administration of justice or maintaining law and order, but it extends to regulating and controlling the activities of people in almost every sphere, educational, commercial, social, economic, political and even marital.
The demarcating line between sovereign and non-sovereign powers, for which no rational basis survives, has largely disappeared. Therefore, barring functions such as administration of justice, maintenance of law and order and repression of crime etc. which are among the primary and inalienable functions of a constitutional Government, the State cannot claim any immunity.”
Moreover, the Court reinforced a link between the State and its officers: “The determination of vicarious liability of the State being linked with (the) negligence of its officers, if they can be sued personally for which there is no dearth of authority and the law of misfeasance in discharge of public duty having marched ahead, there fon is no rationale for the proposition that even if the officer is liable, the State cannot be sued.”
In the case of Jay Laxmi Salt Words (P) Ltd vs State of Gujarat, the Supreme Court of India pointed out the two ingredients of torts:
- injury
- damage
These can be said to be the two basic ingredients of tort. It was also stressed that although these elements may be found in contracts as well but the violations which may result in tortuous liability can be said to be breach of duty.
The remedy for these is fixed by the law while in contract they are fixed by the parties themselves. Moreover, in the case of torts, the duty is towards people in general, whereas, in contracts, it is towards a specific person or persons.
A legal action against a tort is usually a claim for pecuniary compensation in respect of damages suffered because of an invasion of a legally protected interest.
The liability in case of torts is called ‘strict liability’, ‘absolute liability’ or sometimes even ‘fault liability’. These liabilities have become somewhat entrenched over time. (Rylands v. Fletcher).
The only difference between ‘strict liability’ and ‘fault liability’ can be pointed out with the help of presence or absence of mental element. A breach of legal duty wilfully, or deliberately or even maliciously committed is always negligence, resulting in from fault liability.
On the other hand, an injury or damage resulting without any intention yet caused due to improper planning or lack of foresight etc. is strict liability since it is a primary duty to take care of these things.
In the case of Donoghue v. Stevenson, a manufacturer was held to be liable to ultimate consumer on the principle of duty to care. Same was determined in the case of Anns v. Merton London Borough.
Law Relating To Torts Distinguish Between Question And Answers
Question 1:Distinguish the following: (iv) ‘Libel’ and ‘slander’.
Answer:
Difference between ‘Libel’ and ‘slander’
Question 2:Distinguish between the following.’Battery’ and ‘assault’.
Answer:
Difference between ‘Battery’ and ‘assault’
Question 3: Distinguish between ‘Damnum Sine Injuria’ and ‘Injuria Sine Damnum’ under the law relating to Torts.
Answer:
Difference between ‘Damnum Sine Injuria’ and ‘Injuria Sine Damnum’ under the law relating to Torts
Law Relating To Torts Descriptive Questions
Question 1: Swaraj an employer of ABC Company Ltd., appointed Rakesh as an independent contractor. Discuss under what circumstances Swaraj would be liable for the fault of Rakesh.
Answer:
A master/employer is liable for the tort committed by his servant while acting in the course of his employment. The servant, of course, is also liable; their liability is joint and several. This is known as vicarious liability.
The relationship of an individual with that of his/her independent contractor is not that of master-servant. The employer is not liable merely because an independent contractor commits a tort in the course of his employment.
The employer is liable only if he himself is deemed to have committed a tort. This may happen in one of the following three ways:
- When employer authorizes him to commit a tort.
- In torts of strict liability
- Negligence of independent contractor.
In the present case, Swaraj would be liable for the fault of Rakesh in the above mentioned circumstances.
Question 2: Discuss the ‘Rule of Strict Liability’ under the Law of Torts.
Answer:
Strict liability or absolute liability: This liability arises when some harm takes place without any intention or negligence on the part of the defendant, even then he is liable for it. This can happen in any of the following cases:
Unavoidable accidents: When a person is doing some work, which, if it goes wrong, is liable to cause harm to another, it will bring liability upon him even if the harmful substances were being kept and maintained by. another on his land.
For instance, if someone has a godown, which he leases to another, and if that other causes some illegal activity to take place in that place, the owner is also liable for it.
Unavoidable mistake: When a person affects another’s tangible or intangible property, for example, someone who gives wrong information about another to the press has to undertake full liability for it.
There are, however, exceptions to the rule of strict liability. They are as under:
Damage caused even when land used for natural purposes: When land is used for the purposes it is meant to be used for, and still harm is caused, then no liability arises. For example, when the land to be used for building a house is used for that purpose, and still it causes some harm to another, then the defendant is not liable for it if he has exercised
normal care.
With the knowledge and consent of plaintiff: When the plaintiff will benefit from the action too, then he cannot complain against it later, having enjoyed the fruit of that action.
Damage caused from an act of a stranger or a third party: However, if the defendant was aware of the damage being caused, then he should have taken steps to mitigate the harm, else he would be held liable.
Action of a statutory body: This will be exempt when the statutory body, i.e., the municipality etc. has taken proper steps to keep the substance in a way so as to ensure that no one is harmed because of its leakage. Act of God is exempt, for example, floods, lightning, etc.
When the plaintiff is at fault himself: In this case, if the plaintiff was forewarned of the chance of damage, but he did not pay heed, he himself is liable for his loss or harm.
Question 3: What remedies can be sought under the Law of Torts?
Answer:
Remedies in Torts:
There are Three types of judicial remedies available in case of torts:
- Damages
- Injunction
- Specífic Restitution of Property.
The Extra-judicial remedies: Extra-judicial remedies are those that can be accessed by use of self-help and without recourse to the Court.
These are as under:
Self-defense:
The law permits a person to use reasonable force to protect himself or any other person when unlawful use of force is being used against them.
Prevention of Trespass in Law Relating To Torts:
An occupier of property or anyone who has the same rights may use reasonable force to prevent a trespasser from entering into the property. He may also eject them but the force should be reasonable or justified as per the purpose.
Right of re-entry in Law Relating To Torts:
Anyone wrongfully dispossessed of land may regain possession in a peaceful and reasonable manner.
Re-caption of goods in Law Relating To Torts:
Anyone wrongfully dispossessed of goods can use reasonable force to repossess. This is also used in the case of cattle.
Abatement of nuisance in Law Relating To Torts:
This right is given to the occupier of land who may lawfully abate or lessen or stop any nuisance injuriously affecting the land or his enjoyment of it. For example, if a neighbour’s tree has overhanging branches that jut out over his land and cause his discomfort, he may cut them, but only after affording the neighbor a due notice and by choosing the least harmful method, thereby avoiding unnecessary damage.
Distress damage feasant in Law Relating To Torts:
If an occupier of a land or property finds any cattle unlawfully causing damage to his land, he may detain them until compensation is paid for the damage. Hence, he has the right to restrain things causing damage to his property.
Question 4: Discuss the vicarious or tortious liability of state for the act of his servant. Refer relevant Judgements.
Answer:
The vicarious or tortious liability of state for the act of his servant
When a case of Government liability in tort comes before the courts, the question is whether the particular Government activity, which gave rise to the tort, was the sovereign function or non-sovereign function.
If it is a sovereign function it could claim immunity from the tortuous liability, otherwise not. Generally, the activities of commercial nature or those which can be carried out by the private individual are termed as non-sovereign functions.
The first important case involving the tortious liability of the State was raised in the pre-independence era P. and 0. Steam Navigation v. Secretary of State for India (5 Born HCR App 1).
The question referred to the Supreme Court was whether the Secretary of State for India is liable for the damages caused by the negligence of the servants in the service of the Government.
The Supreme Court answered the question in the affirmative. The Court pointed out the principle of law that the Secretary of State for India in Council is liable for the damages occasioned by the negligence of Government servants, if the negligence is such as would render an ordinary employer liable.
According to the principle laid down in this case the Secretary of State can be liable only for acts of non-sovereign nature, liability will not accrue for sovereign acts.
The Court admitted the distinction between the sovereign and non-sovereign functions of the government and said that here was a great and clear distinction between acts done in exercise of what are termed sovereign powers, and acts done in the conduct of undertakings which might be carried on by private individuals without having such powers delegated to them.
Question 5: Discuss briefly “Malicious Prosecution” and its essential elements under the law relating to Torts.
Answer:
“Malicious Prosecution”
Malicious prosecution consists in instigating judicial proceedings (usually criminal) against another, maliciously and without reasonable and probable cause, which terminate in favour of that other and which results in damage to his reputation, personal freedom or property.
The following are the essential elements of this tort:
- There must have been a prosecution of the plaintiff by the defendant.
- There must have been want of reasonable and probable cause for that prosecution.
- The defendant must have acted maliciously (i.e. with an improper motive and not to further the end of justice).
- The plaintiff must have suffered damages as a result of the prosecution.
- The prosecution must have terminated in favour of the plaintiff. Space to write important points for revision
Question 6 : Anil and Amit are two partners of a firm. Anil, while ordinarily dealing with another firm, bribed that firm’s clerk to divulge secret relating to the other firm where that clerk was working. In this case, who shall be liable- whether both the Partners i.e. Anil and Amit or only Anil? Explain.
Answer:
Tort committed by a partner in the ordinary course of the business of the firm, all the other partners are liable therefore to the same extent as the guilty partner. The liability of the partners is joint and several.
In the case of Hamlyn vs. Houston & Co. (1903) 1 K.B. 81, one of the two partners bribed the plaintiff’s clerk and induced him to divulge secrets relating to his employer’s business. It was held that both the partners were liable for the tort committed by only one of them.
Question 7: “To constitute a tort, there must be a wrongful act and legal damages”. Explain.
Answer:
There is no provision in law that lists out the requirements of a tort. However, certain general conditions can be derived. A tort can be defined as an act or omission committed by the defendant (tortfeasor) when he is not protected by just cause or excuse, that causes harm to the plaintiff. Hence, the following elements of a tort can be observed:
Wrongful act in Law Relating To Torts:
To constitute a tort, the act complained of should be legally wrongful as against the complainant. Hence, in order to be termed as a tort, an act against a person whose legal rights, e.g., right of reputation, right of bodily safety and freedom, and right to property are violated without legal excuse, should be one that can be claimed against, whether actual loss results from such violation or not.
Legal damages in Law Relating To Torts :
All damage might not be damage in the eyes of law. To constitute a tort, there should be legal injury or invasion of a legal right. If there is no infringement of a legal right, an action does not lie. Conversely, where there is infringement of a legal right, a suit lies even though no damage may have been caused. (Ashby v. White).
Legal remedy in Law Relating To Torts:
There should be a legal remedy available against the tort in question. There are three types of judicial remedies available in case of torts –
- Damages
- Injunction
- Specific Restitution of Property.
The two concepts are further explained through the following two maxims-
Damnum sine injuria in Law Relating To Torts
‘Injury’ here means ‘physical injury’ and ‘damnum’ means ‘financial loss’ or ‘loss of property’. Damnum sine injuria implies a legal wrong that causes no actual damage or injury to anyone. For example, a financial wrong caused by one could result in liability to the other, even though no physical harm has been caused to the other.
Injuria sine damnum in Law Relating To Torts
I no stub bailgmi na al erarti tarll moltevisedo Injuria sine damnum implies a legal wrong that causes no actual damage or injury to anyone. For example, someone got hurt by another’s vehicle due to his own fault; it is not the other person’s liability, so no financial loss is caused to him.
Question 8: The managing clerk of a firm of solicitors, while acting in the ordinary course of business committed fraud, against a lady client by fraudulently inducing her to sign documents transferring her property to him. He had done so without the knowledge of his Principal. Explain whether the Principal will be liable?
Answer:
Vicarious Liabitity in Law Relating To Torts:
A tort is a civil wrong that arises out of a breach of a civil duty or of a non-contractual obligation, the only remedy for which is damages. When one is responsible for the act of another, it is called vicarious liability.
For example, when the servant of a person harms another by his act, the servant as well as his master are both held accountable for the act done by the servant. The current case pertains to the Law of Torts, i.e. the law pertaining to vicarious liability.
Under these rules, the principal is liable for the wrongs of his agents, based on the maxim – Qui facit per alium facit per se (He who acts through an agent acts himself, i.e. even if someone is acting through an agent, and the agent is acting as per the principal’s directions, it can be assumed that the principal is acting himself).
In this case, the employer will be liable for the acts of his agent, i.e. the managing clerk. This matches the case of Century Insurance Co. Ltd. v. Northern Ireland Road Transport Board, in which it was decided that the driver although doing an authorized work, was doing it in an unauthorized manner.
Moreover, in this case, it will not exempt the employer and the employer will be held liable for the wrong of the managing clerk.
Question 9: Explain the liability of master for the act of his servant under the law of torts.
Answer:
The liability of master for the act of his servant under the law of torts
Vicarious Liability for Wrongs committed by others Responsibility in such cases is imputed by law on grounds of social policy or expediency. These case involve liability of master for the acts of his servant.
A tort is a civil wrong that arises out of a breach of a civil duty or of a non-contractual obligation, the only remedy for which is damages. When one is responsible for the act of another, it is called vicarious liability.
For example, when the servant of a person harms another by his act, the servant as well as his master are both held accountable for the act done by the servant. Similarly, sometimes the state is held vicariously liable for the torts committed by its servants in the exercise of their duty.
The State would of course not be liable if the acts done were justified by a necessity for protection of life or property. Acts such as judicial or quasi-judicial decisions done in good faith would also bé exempt.
Under these rules, the principal/master is liable for the wrongs of his agents/servants, based on the maxim – Qui facit per alium facit per se (He who acts through an agent acts himself, i.e. even if someone is acting through an agent, and the agent is acting as per the principal’s directions, it can be assumed that the principal is acting himself).
In this case, the employer will be liable for the acts of his agent, i.e. the driver. This matches the case of Century Insurance Co. Ltd. v. Northern Ireland Road Transport Board, in which it was decided that the driver although doing an authorized work, was doing it in an unauthorized manner.
This will not, however, exempt the employer and the employer will be held liable for the wrong of the driver. Space to write important points for revision
Question 10:Explain the Latin maxims damnum sine injuria’ and ‘injuria sine damnum’.
Answer:
The Latin maxims damnum sine injuria’ and ‘injuria sine damnum
These two doctrines are covered under the law of torts.
Damnum sine injuria: ‘Injury’ here means ‘physical injury’ and ‘damnum’ means ‘financial loss’ or ‘loss of property’. Damnum sine injuria implies a legal wrong that causes no actual damage or injury to anyone.
For example, a financial wrong caused by one could result in liability to the other, even though no physical harm has been caused to the other. There are many acts which though harmful are not wrongful and give no right of action to him who suffers from their effects.
Damage so done and suffered is called Damnum Sine Injuria or damage without injury.
Injuria sine damnum: Injuria sine damnum implies a legal wrong that causes no actual damage or injury to anyone. For example, someone got hurt by another’s vehicle due to his own fault. Damage without breach of a legal right will not constitute a tort.
Such examples would constitute injury but not damage, as per the rules of torts. They are instances of damage suffered from justifiable acts. An act or omission committed with lawful justification or excuse will not be a cause of action though it results in harm to another as a combination in furtherance of trade interest or lawful user of one’s own premises.
In Gloucester Grammar School Master Case, it had been held that the plaintiff school master had no right to complain of the opening of a new school. The damage suffered was mere damnum absque/sine injuria or damage without injury.
Question 11: Describe the concept of False Imprisonment under Law of Torts. Cite case law in support of your answer.
Answer:
False Imprisonment in Law Relating To Torts:
Restricting a person’s liberty without sufficient lawful justification, even if it is for a short duration of time implies false imprisonment. It implies placing unauthorized restraint over a person’s body.
If a person is confined within certain limits so that he cannot move about freely we can say he has been falsely imprisoned. It can even occur when he is restrained from leaving from an open space; it is not essential that he be imprisoned within four walls.
In the case of Sunil Batra v. Delhi Administration, the Supreme Court gave its observation that “there is an implied duty on the jail superintendent to give reasons for putting bar fetters on a prisoner to avoid invalidity of that provision under Article 21 of the Constitution.”
Hence, it stressed upon the orders of the adjudication to give well-reasoned and adequately substantiated judgements, which prevent them from being arbitrary.
Law Relating To Torts Descriptive Questions
Question.1: What are the essential elements of the tort of malicious prosecution?
Answer:
This tort must have the following essential elements:
- A prosecution of the plaintiff by the defendant.
- No reasonable and probable cause for that prosecution.
- Defendant must have acted maliciously, without having the motive of justice to support his contentions.
- The plaintiff must have suffered damages to his property, reputation etc. as a result of the prosecution.
- The prosecution terminated in favour of the plaintiff.
In order to constitute this tort, the proceedings must have been instituted by the defendant. If he just conveys his belief as to the facts of the case to a policeman or a magistrate he is not responsible for any proceedings which might be initiated by them.
Question.2: What are the general conditions for liability in case of a tort?
Answer:
The general conditions for liability in case of a tort
There is no provision in law that lists out the requirements of a tort. However, certain general conditions can be derived. A tort can be defined as an act or omission committed by the defendant (tortfeasor) when he is not protected by just cause or excuse, that causes harm to the plaintiff. Hence, the following elements of a tort can be observed:
Wrongful act:
To constitute a tort, the act complained of should be legally wrongful as against the complainant. Hence, in order to be termed as a tort, an act against a person whose legal rights, e.g., right of reputation, right of bodily safety and freedom, and right to property are violated without legal excuse, should be one that can be claimed against, whether actual loss results from such violation or not.
Legal damages:
All damage might not be damage in the eyes of the law. To constitute a tort, there should be legal injury or invasion of a legal right. If there is no infringement of a legal right, an action does not lie. Conversely, where there is infringement of a legal right, a suit lies even though no damage may have been caused. (Ashby v. White).
Legal remedy:
There should be a legal remedy available against the tort in question.
Question.3: What are the remedies available in case of torts?
Answer:
Remedies In Torts
There are three types of judicial remedies available in case of torts –
- Damages
- Injunction
- Specific Restitution of Property.
The extra in Law Relating To Torts:
judicial remedies are those that can be accessed by use of self-help and without recourse to the court. These are as under –
Self-defence in Law Relating To Torts:
The law permits a person to use reasonable force to protect himself or any other person when unlawful use of force is being used against them.
Prevention of Trespass in Law Relating To Torts:
An occupier of property or anyone who has the same rights may use reasonable force to prevent a trespasser from entering into the property. He may also eject them but the force should be reasonable or justified as per the purpose.
Right of Re-entry in Law Relating To Torts:
Anyone wrongfully dispossessed of land may regain possession peacefully and reasonably.
Re-caption of Goods in Law Relating To Torts:
Anyone wrongfully dispossessed of goods can use reasonable force to repossess. This is also used in the case of cattle.
Abatement of Nuisance in Law Relating To Torts:
This right is given to the occupier of land who may lawfully abate or lessen or stop any nuisance injuriously affecting the land or his enjoyment of it. For example, if a neighbour’s tree has overhanging branches that jut out over his land and cause his discomfort, he may cut them, but only after affording the neighbor a due notice and by choosing the least harmful method, thereby avoiding unnecessary damage.
Distress damage feasant in Law Relating To Torts:
If an occupier of a land or property finds any cattle unlawfully causing damage to his land, he may detain them until compensation is paid for the damage. Hence, he has the right to restrain things causing damage to his property.