(..2..)

CONSTITUENTS OF TORT[1]

Table of Contents

(Elements of Tort)

QUESTION BANK

Q1. Discuss the maxim ‘Damnum sine injuria’.

Q2. Discuss the maxim “Ubi jus ibi remedium.”

Q3. Define tort, and discuss the elements of torts.

Q4. What do you understand by ‘tortious liability? What conditions must be present before such liability may arise?

Q.5. Explain the maxims – ‘damnum sine injuria’ and ‘injuria sine damnum’ with the help of decided cases.

Q.6. Explain the principles of liability in Torts fully.

SHORT NOTES

‘Ubi jus ibi remedium’,
“Damnum sine injuria”.
Ashbe V/s White.
Injuria sine Damnum.

SYNOPSIS

Wrongful act.
Damage: –

Injuria sine Damnum.
Damnum Sine Injuria.

Remedy:-

“Ubi, jus, ibi remedium”

“Ex turpi causa non oritur actio”

Constituents of Tort:-

The law of Torts is fashioned as “an instrument for making people adhere to standards of reasonable behaviour and respect the rights and interests of one another”. An act which infringes a legal right is a wrongful act, but every wrongful act is not a tort. The following ingredients shall be proved to constitute a tort or civil injury.

There must be a wrongful act committed by a person.
The wrongful act must give rise to legal damage.
The wrongful act must be of such a nature as to give rise to a legal remedy as an action for damages.

These are the ingredients or constituents of torts that attract ‘tortious liability.

1) Wrongful Act[2]:-

First of all, the defendant should have committed the wrongful act. An act is wrongful if it invades any of the three private rights of a person, Viz.-his right to

good reputation,
property;

his right to bodily safety and freedom.

A wrongful act is contrary to the rule of right and justice. It may be of two kinds;-

i) a moral or natural wrong[3] (not actionable). Morally or naturally wrong act, contrary to the rules of natural justice, may not be contrary to positive law and, hence, is not actionable. Thus, wearing a veil (burkha) is moral, but not wearing it, though immoral, is not a legal wrong ( hence, it is not actionable).
ii) a legal wrong[4]– An act which is legally wrong, being contrary to the rules of legal justice, and a violation of the law, hence actionable in law. A legal wrong is an act that is authoritatively determined to be wrong by the rule of law and is, therefore, treated as wrong for the purpose of the administration of justice by the state. The essentials of a legal wrong consist in its recognition as a wrong by the law. It is synonymous with injuria, i.e., the violation of a legal right. A mere loss without the violation of a legal right does not give rise to a cause of action.

2) Damage[5]:-

“Damage” means the harm or loss suffered or presumed to be suffered by a person as a result of some wrongful act of another. The sum of money awarded by a court to compensate “damage” is called “damages”.

From the point of view of presumption of damage, rights are classified into i) Absolute and ii) Qualified.

When an absolute right[6] has violated the law conclusively presumes damage, although the person wronged may have suffered no pecuniary loss whatsoever. The damage so presumed is called legal damage[7]. Therefore, violation of absolute rights is actionable per se, i.e., without proof of any pecuniary damage.

In the case of qualified rights[8], there is no presumption of legal damage, and the violation of such rights is actionable only on proof of actual or special damage.

Two maxims illustrate the real significance of legal damage, which contains the concept of absolute and qualified rights.

They are, i] Injuria Sine Damnum.

ii] Damnum Sine Injuria.

i] Injuria Sine Damnum[9]–

‘Injuria’ means ‘injury to legal right’. ‘Sine’ means without, and ‘damnum‘ means ‘damage’ or monitory loss, loss of health, comfort, etc.

This maxim means an injury to a legal right without any monetary loss.

The person whose right is infringed has a cause of action to bring an action for that tort. Every person has an absolute right to his property, immunity to his person, and liberty, and any infringement of these rights is actionable per se- i.e., without proof of actual damage.

In Ashby V/s. White[10]

Facts: The plaintiff was a legal voter whose name was mentioned in the voter’s list. The defendant was the election returning officer who refused the plaintiff to cast his lawful vote. The plaintiff sued the defendant for compensation.

Defence of defendant: – The plaintiff suffered no loss in terms of money. Moreover, the candidate to whom he wanted to cast his vote has been elected. Hence, the defendant is not liable because there was no monetary (pecuniary) loss to the plaintiff.

Court Held: – The defendant is liable to pay compensation because he has violated the legal right of the plaintiff to vote, even though his candidate is elected and the plaintiff has not suffered any loss in terms of money.

The principle of this case was applied by the court in a similar case, i.e.

Ashrafilal V/s. Municipal Corporation of Agra[11]

In Marzetti V/s. Williams[12]

Facts: The bank refused the customer’s cheque despite having sufficient funds in his account and without any proper reason. The customer sued for damages.

Held:- Even though the plaintiff suffered no monetary loss, the defendant is liable for refusing the customer’s cheque and, therefore, committed a tort.

ii] Damnum Sine Injuria[13]: –

‘Damnum’ means ‘damage’ in the ordinary sense, i.e. it may be loss of money, physical hurt, loss of health or service, or the like. ‘Sine’ means ‘without’. ‘Injuria’ means ‘injury to a legal right’. So this maxim ‘Damnum sine Injuria’ means damage without infringement of a legal right.

Where there is no infringement of a legal right, the mere fact of harm or loss from an act or omission will not render such act or omission wrongful, even though such loss is substantial and may even be irreparable. The damage thus suffered without violation of a legal right is called ‘damnum sine (or absque ) injuria’.

The law does not recognise every possible form of harm or damage and does not account for several forms of harm. Thus, a violation of the rules of ethics does not always amount to an infringement of legal rights.

A plaintiff must prove legal injury to make a person liable in law. There are many acts that, though harmful, are not wrongful in the eyes of the law and, therefore, do not give rise to a right of action to the person who sustained the harm.

In Gloucester Grammar School Case[14]

Facts:- The defendant, a schoolmaster, set up a rival school next to the plaintiff’s school, and the boys from the plaintiff’s school flocked to that of the defendant. The plaintiff’s school suffered a monetary loss, so it sued the defendant’s school.

Court Held:- Defendant is not liable; competition is no ground of action even though the monetary loss is caused without violation of any legal right.

In Moghul Steamship Corporation V/s. Mc Gregor Gow & Co[15]

Facts: Many companies were engaged in Sea Corporation. They used ships to send goods and passengers from one port to another; the plaintiff’s company was one of them and was very famous. Defendant companies formed a syndicate (association) and decided to give concessions to those who would not deal with the plaintiff Corporation. The Plaintiff Corporation suffered a great loss from the acts of the defendants. The plaintiff sued for loss.

Held: The defendant’s Company was not liable because it had not violated the plaintiff’s legal rights. Damages done by competition in trade were not actionable.

In Mayor of Balford V/s. Pickles[16]

Facts: – The Corporation of Bradford was supplying water from its wells. The defendant had adjacent land (to the Corporation) land wherein there was a well. The defendant wanted to sell his land to the Corporation, but the negotiation failed. So, the defendant maliciously dug a well in his land, thereby cutting the supply of undergoing water to the Corporation’s well. The corporation sued for damages for malice.

Held: – The defendant is not liable because his act is not wrongful as it does not violate the plaintiff’s legal right. Though there is factual malice, digging a well in one’s own land does not amount to tort.

3] Remedy[17]: –

A tort is a civil injury, but all civil injuries are not torts. The wrongful act must come under the category of wrongs, for which the Remedy is a civil action for damages. The essential Remedy for a tort is an action for damages, but in addition to damages, there are some other remedies that can be sought. Such remedies are injunction, specific restitution of chattel, recovery of possession of land, etc. However, it is primarily the right to damages that brings such wrongful acts within the category of torts.

The law of tort is said to be a development of the maxim ‘Ubi jus ibi remedium’. The maxim ‘ubi jus ibi’ remedium means when there is a right, there is a remedy. ‘Jus’ means the ‘legal authority or (right) to do’ or ‘to demand something, and ‘remedium’ means ‘the right of action (or the means given by law for the recovery or assertion of a right)’. So if a man has a right, there must be a remedy to vindicate it.

Evolution of this maxim[18]: –

In England, the common law courts were based on custom and usage. The rules of law strictly bound these courts; the Remedy available to them was in the form of ‘writs’, and the writs were limited.

Therefore, these courts were unable to give any new relief to people. The principle of common law ‘ibi remedium ubi jus’ means “unless there is the remedy (writ), there is no right recognized”. However, this maxim caused hurdles in providing justice; therefore, the king of England referred this matter to the ‘Chancellor’. Subsequently, the ‘Chancery Court’ turned into a Court of Equity. These courts were based on good consciences and not on law.

The Court of Equity supplements the common law court by providing remedies that were not available in a common law court.

Thus, the principle adopted by the equity court, ‘Ubi jus ibi remedium,’ means that when there is a legal right, there must be a legal remedy. In other words, there is no right without a remedy. This view is accepted in the case Ashby V. White. Holt-J-Held—as there is a legal right to vote, there must be a remedy for not allowing this right to be exercised.

However, the maxim does not lay down the rule that there is a legal remedy for every wrong. Many moral and political wrongs are not recognised by law and are, therefore, not actionable. It has, therefore, aptly been remarked by Justice Stephen in Bradlaugh V/s. Gossett[19]that the maxim would be more intelligibly and correctly stated if it were to be reversed to say that “where there is no legal remedy, there is no legal wrong”. So, one view is based on the former common law maxim ‘ibi remedium ubi jus’, which means “where there is no legal remedy, there is no legal right.”

The maxim ‘Ex turpi causa non oritur action[20]’ provides that an action does not arise from an immoral or a base cause.

As seen above, the damage sustained by the plaintiff must be legal damage. If the damage is in any manner tainted with immorality, no cause of action can be maintained.

In Hegarty V/s. Shine[21]

Facts: – that if P is infected by D’s venereal disease, the existence of which was concealed by D.

Held: – P is not entitled to sue D because an action does not arise from an immoral cause.

In this way, the maxim ‘ex-turpi causa notorious action is an exception to the maxim ‘ubi jus ibi remedium’

So, in conclusion, all the above maxims are interlinked and are governing principles of the law of torts.

=========================================================

NOTE

MENTAL ELEMENTS IN TORTUOUS LIABILITY[22]

QUESTION BANK

Q.1. How far are the mental conditions like fault, wrongful intent, and motive relevant in tort? Answer with the help of decided cases.

SHORT NOTES

Nervous shock.

1. Mental Elements In Tortuous Liability-

Though not in the strict sense, the mental elements in proving tort are also necessary.

1. Intention[23], Negligence[24] , and Reckless[25]–

‘Intention’ is an internal fact that passes in the mind and direct evidence of which is not available. An act is intentional as to its consequences if the person concerned has the knowledge that they would result and also the desire that they should result.

Illustration

When A deliberately, with pre-mediation, kills B, it is intentional murder.

The consequences are not expected in negligence, though a reasonable person would have foreseen them. For example, if a person drives rashly and negligently on the road, he may reasonably be expected to know that it may kill or injure any person.

It is “recklessness” when the consequences are adverted to, though not desired, and there is indifference towards consequences or willingness to run the risk. Recklessness is sometimes called “Gross negligence”, but very often and more properly, it is assimilated with intention, e.g. if A throws a paperweight out of a window of his house without caring to see if it struck any by-passer. A is reckless in his conduct.

2. Motive[26]

Motive is the ulterior object or purpose of doing an act. It differs from intention in two ways-

First, intention relates to the immediate objective of an act, whereas motive refers to the ulterior objective.

Secondly, motive refers to some personal benefit or satisfaction the actor desires, whereas intention need not be so related to the actor. When X poisons Y, the immediate objective is to kill Y, which is A’s intention. The ulterior objective of X may be to secure Y’s estate by inheritance or under a will executed by him, and this objective will be X’s motive. Motive is generally irrelevant in tort.

3. Malfeasance[27], Misfeasance And Nonfeasance-

The term ‘malfeasance’ applies to the commission of an unlawful act. The term generally applies to unlawful acts, such as trespass, etc., that are actionable per se.

The term ‘misfeasance[28]’ is applicable to the improper performance of some lawful act, e.g. negligence.

The term ‘non-feasance[29]’ applies to the omission of performing some action when there is an obligation to perform it. The non-feasance of a gratuitous act (undertaken to be performed free) is not actionable in court.

4. Fault[30]–

Damage caused to a person when no legal right of another has been violated does not give a right to any tortuous liability even though the act causing the damage is done intentionally and with an oblique motive. It is also necessary that the act in question should have been done with the intention, negligence, malice, or motive. In other words, a mere act by the wrong-doer is insufficient to prove his fault unless it is accompanied by one or the other mental element (discussed above). Thus,-

Fault = act + mental element= tortuous liability.

However, there are some tortuous liabilities known as ‘absolute’ or ‘strict’ liability, wherein the liability is enforced even without the person’s fault or without having a mind at fault.

One of the important cases on the rule of strict liability or liability without fault is the case of Rylands v. Fletcher.

Rylands V/s. Fletcher[31]

Facts:- Fletcher was working a coal mine under a lease. Rylands desired to erect a reservoir to store water on the neighbouring land. For this purpose, he employed a competent, independent contractor whose workman excavated the soil, discovered some disused shafts (channels) and passages of old working, and passed towards the mine in adjoining land. The shafts (channels) and passages had been filled with loose soil. The contractor did not take the trouble to pack these shafts and passages with earth so as to bear the pressure of water in the reservoir when filled. Shortly after the construction was complete, it was filled with water; the shafts (channels), which were not properly packed, gave way to water, resulting in a reservoir burst. Consequently, the water flooded with old passages and thereby flooded the plaintiff’s mine; consequently, the mine could not be worked. The plaintiff sued for damages. No negligence on the defendant’s part was proved because the engineer was a qualified and independent contractor who acted negligently.

Held:- that the question of negligence was quite immaterial. The defendant, in bringing water into the reservoir, was therefore liable.

Principle of this case:- that the person who for his own purpose brings on his land and collects and keeps there anything likely to make mischief if it escapes must keep it at his peril, and he is prima facie answerable for all the damage which is the natural consequence of its escape.

Applicability of Rule in India :-( Rule in M.C. Mehta V/s. Union of India)

A more stringent rule of strict liability than the rule in Rylands V/s. Fletcher was laid down by the Supreme Court in the case of

M.C. Mehta V/s. Union of India[32]

Facts: The case concerns the harm caused by the escape of oleum gas from one of Shriram Foods and Fertilizer Industries’ units.

Held:- that the rule of Rylands Vs. Fletcher was developed long back, and therefore, it is inadequate to meet the needs of modern industrial society, where hazardous or inherently dangerous industries were necessary to be carried on. Therefore, the court laid down a new rule which was yet not recognised by the English court, i.e. “Where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone, on account of an accident in the operation of such hazardous or inherently dangerous activity, (in the escape of toxic gas, etc.) the enterprise is strictly and liable to compensate all those who are affected by accident. Such liability is not subject to any exceptions that operate the principle of strict liability under the rule of Ryland V. Fletcher.

However, the Supreme Court refused to apply the strict liability principle of the M.C. Mehta case in The Bhopal Gas Leak Disaster Case, stating that M.C. Mehta’s principle cannot be applied in the instant case because settlement is taking place. Since the Union of India was also a party in the suit, it has not done any wrong, so why should the strict liability rule be imposed?

Facts:- In 1984, the Dec. 3 gas disaster, the worst in recent times, was caused by the leakage of methyl-isocyanides and other toxic gases from the Company named ‘Union Carbide India Ltd. at Bhopal.’ About 4000 people died 2 lack were seriously injured.

However, In Surjya Das V/s. Assam State Electricity Board[33]

Facts– The falling of a live wire caused the death of the petitioner’s wife due to the snapping of an electrical conductor. The Respondent Board undertook the generation or transmission of electricity.

Held—It is an activity involving hazardous and risky exposure. Therefore, strict liability principles will govern the board, and the company can be held liable to pay compensation.

Absolute Liability[34] May Arise In the Following Cases: –

Cases relating to the escape of dangerous things.
Cases relating to the escape of animals.
Cases relating to using things in their nature are especially dangerous, e.g., fire, explosives, etc.
Cases relating to dangerous premises.
Persons are professing skill.

*****

[1] अपकृत्यातील घटक [अपकृत्य के घटक]

[2] दुष्कृत्ये [गलत काम]

[3] नैतिकते विरुध्द अथवा निसर्गा विरुध्द ची कृत्ये [प्राकृति के खिलाप/ प्राकृतिक गलत]

[4] कायदया विरुध्द ची कृत्ये [कानूनी गलत]

[5] नुकसान [हानि]

[6] संपूर्ण अधिकार [पूर्ण अधिकार]

[7] प्रत्यक्ष आर्थिक नुकसानी शिवाय [कानूनी क्षति]

[8] अटींसह अधिकार [पूर्ण अधिकार]

[9] कोणत्याही प्रत्यक्ष आर्थिक, शारीरिक अथवा सुखासोई च्या नुकसानी शिवाय कायदेशिर अधिकाराचे हणन [बिना किसी मौद्रिक नुकसान के कानूनी अधिकार की चोट]

[10] 1703

[11] 1921

[12] 1830

[13] कोणत्याही अधिकारांच्या हणनाषिवाय झालेले आर्थिक, शारीरिक अथवा सुखसोईचे नुकसान [कानूनी अधिकार के उल्लंघन के बिना क्षति]

[14] (1410)

[15] 1892

[16] 1895

[17] उपाय

[18] म्हणींची उत्क्रांती [इस कहावत का विकास]

[19] 1884 Q.BD

[20] अनैतिक कारणासाठी कोणताही दावा होत नाही. [एक अनैतिक या आधार कारण से कोई कार्रवाई उत्पन्न नहीं होती है]

[21] 1878

[22] अपकृत्यामधील मानसिक घटक [अपकृत्या के दायित्व में मानसिक तत्व]

[23] उद्देष [इरादा]

[24] निश्काळजीपणा [लापरवाही]

[25] बेफिकीरी [अंधाधुंध/ धुष्ट]

[26] हेतू [प्रेरणा]

[27] दुष्कृत्य [दुराचार]

[28] कायदेशिर अधिकाराचा गैरवापर/कायदेशिर काम गैर मार्गाने करणे [कानुनी काम गैर कानुनी पद्धतीसे करणा]

[29] कर्तव्य कसूर/कायदेषिर कर्तव्य न करणे. [कानुनी कर्तव्य ना करणा]

[30] दोष/दोषपात्र कृती [दोष]

[31] 1868 LR 3

[32] AIR 1987 SC 965

[33] (AIR 2006 Gau 59)

[34] पूर्ण जबाबदारी/संपूर्ण जबाबदारी [पूर्ण दायित्व]