Law on Tort
Definition of Tort-
Tort derived from the Latin word ‘tortum’, which means ‘to twist’. It includes that conduct which is not straight or lawful. It is equivalent to the English term ‘wrong’.
Salmond- It is a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a trust or other merely equitable obligation.
We may define tort as a civil wrong which is redressible by an action for unliquidated damages and which is other than a mere branch of contract or breach of trust.
Distinction between Tort and crime-
i) Less serious wrongs are considered as private wrongs and have been labelled as civil wrong.
i) More serious wrongs have been considered to be public wrongs and are known as crimes.
ii) The suit is filed by the injured person himself.
ii) The case is brought by the state.
iii) Compromise is always possible.
iii) Except in certain cases, compromise is not possible.
iv) the wrongdoers pays compensation to the injured party.
iv) The wrongdoer is punished.
Distinction between Tort and breach of contract-
Breach of contract
i) It results from breach of a duty undertaken by the parties themselves.
i) It occurs from the breach of such duties which are not undertaken by the parties but which are imposed by law.
ii) In contract, each party owes duty to the other.
ii) Duties imposed by law of torts are not towards any specific individual but towards the world at large.
iii) Damage of contract is liquidated.
iii) Damage of tort is unliquidated.
iv) It provides limited remedy
iv) It provides unlimited remedy.
Distinction between Tort and Breach of trust-
Breach of Trust
i) Damage of tort is unliquidated.
i) Damage of breach of trust is liquidated.
ii) Law of tort was part of common law.
ii) Law of trust was part of Court of Chancery.
iii) Tort is partly related to the law of property.
iii) Trust is a branch of law of property.
Latin terms and maxims-
Causa causans- An immediate and effective cause.
Causa sine quanon- A necessary cause; the cause without which the thing cannot be or the event would not have occurred.
Some preceding link but for which the causa causans, that is, the immediate cause could not have become operative.
East India Commercial Co. v. Collector of Customs, AIR 1962-
Municipal Board v. State Transport Authority, AIR, 1965-
Prem Bus Service v. R.T.A, AIR 1968-
Chockalingam v. C.I.T, AIR, 1963-
Inayatullah v. Custodian, Evacuee Property, AIR, 1958-
Volenti non fit injuria- There is no injury to one who consents.
Hall v. Brooklands Auto Racing Club- The plaintiff was a spectator at a motor car race being held at Brooklands on a track owned by the defendant company. During the race, there was a collision between two cars, one of which was thrown among the spectators, thereby injuring the plaintiff. It was held that the plaintiff impliedly took the risk of such injury, the danger being inherent in the sport which any spectator could foresee, the defendant was not liable.
Padmavati v. Dugganaika- While the driver was taking the jeep for filling petrol in the tank, two strangers took lift in the jeep. Suddenly one of the bolts fixing the right front wheel to the axle gave way toppling the jeep. The two strangers were thrown out and sustained injuries, and one of them died as a consequence of the same.
It was held that neither the driver nor his master could be made liable, first, because it was a case of sheer accident and, secondly, the strangers had voluntarily got into the jeep and as such, the principle of volenti non fit injuria was applicable to this case.
Wooldrige v. Sumner- The plaintiff, who was a photographer, was taking photographs at a horse show while he was standing at the boundary of the arena. One of the horses, belonging to the defendant, rounded the bend too fast. As the horse galloped furiously, the plaintiff was frightened and he fell into the horses’ course and there he was seriously injured by the galloping horse. The horse in question won the competition. It was held that since the defendants had taken due care, they were not liable. The duty of the defendants was the duty of care rather than duty of skill.
Ex turpi causa non oritur actio – No action arises from a wrongful consideration.
Hardy v. Motor Insurers’ Bureau- This was a case where a security officer was dragged along when he tried to stop a car. Lord Denning MR said: ‘no person can claim reparation or indemnity for the consequences of a criminal offence where his own wicked and deliberate intent is an essential ingredient in it… It is based on the broad rule of public policy that no person can claim indemnity or reparation for his own wilful and culpable crime. He is under a disability precluding him from imposing a claim.’
Revill v. Newberry- An elderly allotment holder was sleeping in his shed with a shotgun, to deter burglars. On hearing the plaintiff trying to break in, he shot his gun through a hole in the shed, injuring the plaintiff. At first instance, the defendant successfully raised the defence of ex turpi to avoid the claim.
Damnum sine injuria – Damage without wrongful act; damage or injury inflicted without any act of injustice; loss or harm for which there is no legal remedy. It is also termed damnum absque injuria.
There are cases in which the law will suffer a man knowingly and wilfully to inflict harm upon another, and will not hold him accountable for it.
Gloucester Grammar School Case- The defendant, a schoolmaster, set up a rival school to that of the plaintiffs. Because of the competition, the plaintiffs had to reduce their fees from 40 pence to 12 pence per scholar per quarter. It was held that the plaintiffs had no remedy for the loss thus suffered by them.
Mogul Steamship Co. v. McGregor Gow and Co.- A number of steamship companies combined together and drove the plaintiff company out of the tea-carrying trade by offering reduced freight. The House of Lords held that the plaintiff had no cause of action as the defendant had by lawful means acted to protect and extend their profits.
Ushaben v. Bhagyalaxmi Chitra Mandir – The plaintiffs sued for a permanent injunction against the defendants to restrain them from exhibiting the film named “Jai Santoshi Maa”. It was contended that the film hurt the religious feelings of the plaintiff in so far as Goddesses Saraswati, Laxmi and Parvati were depicted as jealous and were ridiculed. It was observed that hurt to religious feelings had not been recognized as a legal wrong. Moreover, no person has a legal right to enforce his religious views on another or to restrain another from doing a lawful act, merely because it did not fit in with the tenets of his particular religion. Since there was no violation of a legal right, request of injunction was rejected.
Action v. Blundell – The defendants by digging a coal pit intercepted the water which affected the plaintiff’s well, less than 20 years old, at a distance of about one mile. Held, they were not liable. It was observed: “The person who owns the surface, may dig therein and apply all that is there found to his own purposes, at his free will and pleasure, and that if in the exercise of such rights, he intercepts or drains off the water collected from underground springs in the neighbour’s well, this inconvenience to his neighbour falls within description damnum abseque injuria which cannot become the ground of action.
Injuria sine damno- This maxim means injury without damage. Wherever there is an invasion of a legal right, the person in whom the right is vested is entitled to bring an action and may be awarded damages although he has suffered no actual damage. Thus, the act of trespassing upon another’s land is actionable even though it has done the plaintiff not the slightest harm.
Ashby v. White –
Bhim Singh v. State of J & K – 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 wad deprived of his constitutional right to attend the Assembly session. There was also violation of fundamental right guaranteed under the Constitution. By the time the petition was decided by the Supreme Court, Bhim Singh had been released, but by way of consequential relief, exemplary damages amounting to 50,000 were awarded to him.
Malice- A condition of mind which prompts a person to do a wrongful act wilfully, that is, on purpose, to the injury of another, or to do intentionally a wrongful act toward another without justification or excuse.
In its legal sense it means a wrongful act done intentionally without just cause or excuse.
Malice is a wish to injure a party, rather than to vindicate the law. Malice of two types:
i) Malice in fact
ii) Malice in law
Malice in fact – Means an actual malicious intention on the part of the person who has done the wrongful act. It is also called express or actual malice.
Malice in law – It is not necessarily personal hate or ill will, but it is that state of mind which is reckless of law and of the legal rights of the citizen.
Motive – Motive is that which incites or stimulates a person to do an act. It is the moving power which impels to action for a definite result.
Motive is mainspring of human action. It is cause or reason. It is something which prompts a man to form an intention.
Intention – A settled direction of the mind towards the doing of a certain act; that upon which the mind is set or which it wishes to express or achieve; the willingness to bring about something planned or foreseen.
Injury- In legal parlance, ‘injury’ means any wrong or damage done to another, either in his person, rights, reputation or property.
Meaning under Penal Code, 1860 (section 44) – the word injury denotes any harm whatever illegally caused to any person, in body, mind, reputation or property.
Hurt – Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
Malfeasance – it is a wrongful act which the actor has no legal right to do, or any wrongful conduct which affects, interrupts, or interferes with performance of official duty, or an act for which there is no authority or warrant of law or which a person ought not to do at all, or has contracted not, to do.
The word ‘malfeasance’ would apply to a case where an act prohibited by law is done by a person. (Khairul Bahsar v. Thana Lal AIR 1957)
Misfeasance – Unlawful use of power; wrongful performance of a normally legal act; injurious exercise of lawful authority; official misconduct; breach of law.
The word ‘misfeasance’ would apply to a case where a lawful act is done in an improper manner.
Nonfeasance - Non performance of some act which ought to be performed, omission to perform a required duty at all, or total neglect of duty.
Nonfeasance would apply to a case where a person omits to do some act prescribed by law.
Distinction between ‘Misfeasance’, ‘nonfeasance’ and ‘malfeasance’ – Misfeasance is the improper doing of an act which a person may wilfully do. Nonfeasance means the omission of an act which a person ought to do. Malfeasance is the doing of an act which a person ought not to do at all.
Remedies are of two types- (i) judicial and (ii) extra-judicial.
Judicial remedy is of three types:
(i) Damages, (ii) Injunction and (iii) Restitution of property
Types of damages -
a) Exemplary or Vindictive damages – are damages on an increased scale, awarded to the plaintiff over and above what will barely compensate him for his property loss, where the wrong done to him was aggravated by circumstances of violence, oppression, malice etc.
b) Ordinary or Real damages – are compensation for general damage. General damages are those which the law implies in every breach of contract and in every violation of a legal right.
c) Nominal damages – They are awarded for the vindication of a right where no real loss or injury can be proved.
d) Contemptuous damages -
Injunction- A judicial process operating in personam, and requiring a person to whom it is directed to do or refrain from doing a particular thing. Law as to the injunction is contained in the Specific Relief Act 1963 and the CPC 1908. Types of injunction –
(i) Mandatory – When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts, the Court may in its discretion grant an injunction to prevent the breach (s. 55 of the Specific Relief Act, 1877).
(ii) Permanent or perpetual – By perpetual injunction a defendant is perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff (s. 53, the Specific Relief Act, 1877).
(iii) Temporary – Temporary injunction is such as is to continue until a specified time, or until the further order of the Court. It is regulated by the CPC (s. 53, The Specific Relief Act, 1877; CPC Order XXXIX Rule 1.
(iv) Ad-interim -
Restitution of property – Restitution means restoration of anything to its rightful owner.
Extra-judicial remedies are-
i) Self defence – The use of force to protect oneself, one’s family, or one’s property from a real or threatened attack.
ii) Expulsion of trespassers – Forcibly evicting the trespasser.
iii) Reception of chattels – Chattel means movable or transferable property; personal property.
iv) Re-entry of land –
v) Abatement of nuisance – Abatement is the act of eliminating or nullifying; the act of lessening or moderating.
vi) Distress damage feasant – the right to seize animals or inanimate chattels that are damaging or encumbering land and to keep them as security until the owner pays compensation.
Who may sue and who may be sued
Every person can sue in case of tort including the minor with the consent of his guardian or the court.
The following persons cannot sue-
i) Citizen of foreign state – If a citizen of foreign country wants to file a suit against a Bangladeshi or a other citizen of foreign country, he has to file an application to the Home Ministry through the Law Ministry (s. 83 of CPC)
ii) Alien enemy – Every person residing in a foreign country the Government of which is at war with, or engaged in military operations against Bangladesh and carrying on business without a license will be regarded as an alien enemy.
Alien enemies residing in Bangladesh with the permission of the Government, and alien friends may sue. No alien enemy residing in Bangladesh without such permission or residing in a foreign country shall sue (s. 83 of CPC)
iii) Foreign state – A foreign state cannot sue unless it is recognized by the Government.
vi) Bankrupt – The guiding law in this regard is the Bankruptcy Act, 1997. If a person is declared insolvent, his properties are taken over and a ‘receiver’ is appointed as the supervisor of that property. A bankrupt cannot sue as long as civil wrongs are concerned.
v) Felons/Convicts – Felon is a person who has been proven guilty and declared with punishment but fled away. Convict is a person who has been proven guilty but has not fled away.
A felon cannot file a suit. But a convict can file a suit.
vi) Corporation – A corporation gets a legal entity when it is registered. No unregistered corporation can file a suit.
vii) Child in mother’s womb – This is called ‘pre-natal injuries’.
Walker v. G.N. Ry. Co. of Ireland – the plaintiff, a child, sued the railway company for damages on the ground that he had been born crippled and deformed because the injury was caused to it (before birth) by an accident due to railway’s negligence, when the plaintiff’s pregnant mother travelled on the defendant’s railway. It was held that the defendants were not liable for two reasons. Firstly, the defendants did not owe any duty to the plaintiff as they did not know about his existence; secondly, the medical evidence to prove the plaintiff’s claim was very uncertain.
Montreal Tramways v. Leveille – The Supreme Court of Canada allowed an action by a child born with club feet two months after an injury to its mother by the negligence of the defendants.
Majority of the writers are in favour of the view that an action for pre-natal injuries should also be recognized, once that the act of the defendant is considered to be tortious.
Who may not be sued -
i) President/head of the state – According to Article 51(1) and 51(2) of the Constitution, no civil or criminal suit can be filed against the President as long he is holding the post of the President.
ii) Foreign sovereign – No suit can be filed against a foreign sovereign unless a consent to the same is obtained from that sovereign (s. 86 & 87).
iii) Ambassador / High Commissioners – High Commission is an embassy from one commonwealth country to another.
iv) Public servants – The list of the public servants are given in s. 21, 13 & 14 of the Penal Code, 1860. Also who are appointed through PSC are to be regarded as public servants.
An application for consent from the Government is required before filing a suit against them.
v) Corporation – Unless it is a registered corporation, a suit cannot be filed against it.
vi) Infant / Minor – According to the Penal Code, a minor is a child of 9 – 12 years. But age of the minor varies in various Statues.
vii) Unsound mind – There are various Act for lunatics and unsound minds, e.g. the Lunacy Act, 1912.
Essentials of negligence-
i) The defendant owes a duty of care to the plaintiff;
ii) The defendant made a breach of that duty; and
iii) The plaintiff suffered damage as a consequence thereof.
i) The defendant owes a duty of care to the plaintiff
It means a legal duty rather than a mere moral, religious or social duty. There is no general rule of law defining such duty. It depends in each case whether a duty exists.
Donoghue v. Stevenson – A purchased a bottle of ginger beer from a retailer for the appellant. She consumed that and seriously suffered in her health. She found some snail at the bottom of the bottle. She sued for compensation. The defendant pleaded that he did not owe any duty of care towards the plaintiff. The House of Lords held that the manufacturer owed her a duty to take care that the bottle did not contain any noxious matter, and that he would be liable on the breach of the duty.
Palsgraaf v. Long Island Railroad Co. – The plaintiff with a package was trying to board a moving train. Two servants of the defendant came to help her. One of them pushed her from the back. At this moment the package fell on the rail track. The package contained fireworks and it exploded. The plaintiff was injured. She sued the defendants alleging negligence on the part of their servants. It was held that she could not recover. Cardozo CJ said, the conduct of the defendant’s servant was not wrong. Relatively to her it was not negligence at all.
Duty depends on reasonable foreseeability of injury
If at the time of omission, the defendant could reasonably foresee injury to the plaintiff, he owes a duty to prevent that injury and failure to do that makes him liable.
No liability when injury is not foreseeable
Glasgow Corp. v. Muir – The manageress of the defendant Corporation tea-rooms permitted a picnic party. Two members of the picnic party were carrying a urn of tea through a passage. There were some children buying sweets and ice-cream. Suddenly, one of the persons lost his grip and the children including Eleanor Muir were injured. It was held that the manageress could not anticipate that such an event would happen as a consequence of tea urn being carried through the passage, and, therefore, she had no duty to take precautions against the occurrence of such an event.
Reasonable foreseeability does not mean remote possibility
Bolton v. Stone – A batsman hit a ball and the ball went over a fence and injured a person on the adjoining highway. This ground had been used for about 90 years and during the last 30 years, the ball had been hit in the highway on about six occasions but no one had been injured. The Court of Appeal held that the defendants were liable for negligence. But the House of Lords held that the defendants were not liable on the basis of negligence.
Duty of care – Booker v. Wenborn (1962) - The defendant boarded a train which had just started moving but kept the door of the carriage open. The door opened outside, and created a danger to those standing on the platform. The plaintiff, a porter, who was standing on the edge of the platform was hit by the door and injured. It was held that the defendant was liable because a person boarding a moving train owed a duty of care to a person standing near it on the platform.
ii) Breach of duty – Breach of duty means non-observance of due care which is required in a particular situation. The law requires taking of two points into consideration to determine the standard of care required: (a) the importance of the object to be attained, (b) the magnitude of the risk, and (c) the amount of consideration for which services, etc. are offered.
(a) The importance of the object to be attained –
K. Nagireddi v. Government of Andhra Pradesh – Due to construction of a canal by the state government, all the trees of the plaintiff’s orchard died. The plaintiff alleged that the government due to negligence did not cement the floor. It was held that the construction of canal was of great importance and to not cementing the floor was not negligence from the state government.
(b) The magnitude of risk –
Kerala State Electricity Board v. Suresh Kumar – A minor boy came in contact with overhead electric wire which had sagged to 3 feet above the ground, got electrocuted thereby and received burn injuries. The Electricity Board had a duty to keep the overhead wire 15 feet above the ground. The Board was held liable for the breach of its statutory duty.
(c) The amount of consideration for which services, etc. are offered –
Klaus Mittelbachert v. East India Hotels Ltd. – the question of liability of a five star hotel arose to a visitor, who got seriously injured when he took a dive in the swimming pool. It was observed that there is no difference between a five star hotel owner and insurer so far as the safety of the guests is concerned. It was also observed, a five star hotel charging high from its guests owes a high degree of care as regards quality and safety of its structure and services it offers and makes available.
iii) The plaintiff suffered damage – It is also necessary that the defendant’s breach of duty must cause damage to the plaintiff. The plaintiff has also to show that the damage thus caused is not too remote a consequence of the defendant’s negligence.
Res ipsa loquitur- It means ‘the things itself speaks’. When the accident explains only one thing and that is that the accident could not ordinarily occur unless the defendant had been negligent, the law raises a presumption of negligence on the part of the defendant.
Hambrook v. Stokes Bors. – Soon after parted with her children in a narrow street, a lady saw a lorry violently running down the narrow street. When told by some bystander that a child answering the description of one of her children had been injured, she suffered a nervous shock which resulted in her death. The defendant was held liable.
Dickson v. Reuter –
When the plaintiff by his own want of care contributes to the damage caused by the negligence or wrongful conduct of the defendant, he is considered to be guilty of contributory negligence. This is a defence in which the defendant has to prove that the plaintiff failed to take reasonable care of his own safety and that was a contributing factor to harm.
Rural Transport Service v. Bezlum Bibi (1980) – The conductor of an overcrowded bus invited passengers to travel on the roof of the bus. The driver ignored the fact that there were passengers on the roof and tried to overtake a cart. As a result, a passenger was hit by a branch of tree, fell down, received injury and died. It was held that both the driver and the conductor were negligent towards the passengers, there was also contributory negligence on the part of the passengers including the deceased, who took the risk of travelling on the roof of the bus.
Yoginder Paul Chowdhury v. Durgadas (1972) – The Delhi High Court has held that a pedestrian who tries to cross a road all of a sudden and is hit by a moving vehicle, is guilty of contributory negligence.
Doctrine of alternative danger –
There may be certain circumstances when the plaintiff is justified in taking some risk where some dangerous situation has been created by the defendant. The plaintiff might become nervous by a dangerous situation created by the defendant and to save his person or property, he may take an alternative risk. If in doing so, the plaintiff suffered any damage, he will be entitled to recover from the defendant.
Jones v. Boyce (1816) – The plaintiff was a passenger of defendant’s coach. The coach was driven so negligently that the plaintiff jumped off the bus fearing an accident and broke his leg. It was held that the plaintiff would be entitled to recover.
Shayam Sunder v. State of Rajasthan (1974) – Due to the negligence on the part of the defendants, a truck belonging to them caught fire. One of the occupants, Navneetlal, jumped out to save himself from the fire, be struck against a stone lying by the roadside and died. The defendants were held liable.
Negligence in our laws
The Penal Code, 1860 –
s. 284 – If anyone has custody of poisonous substance and fails to guard against probable danger is punishable with 6 month or 1000 taka or with both.
s. 285 - If anyone acts rashly or negligently to endanger human life with fire or combustible substance is punishable with 6 month or 1000 taka or with both.
s. 286 – If anyone acts rashly or negligently to endanger human life with explosive substance is punishable with 6 month or 1000 taka or with both.
s. 287 – If anyone acts rashly or negligently to endanger human life with any machinery is punishable with 6 month or 1000 taka or with both.
s. 288 – If anyone in pulling down or repairing any building knowingly or negligently omits to guard against probable danger to human life, he will be punishable with 6 months or 1000 taka or with both.
s. 289 – If anyone knowingly or negligently omits to take such order with any animal in his possession as is sufficient to guard against any probable danger to human life or any probable danger or grievous hurt from such animal, shall be punished with 6 months or 1000 taka or with both.