Every person in our country is entitled to some legal right. Law imposes a duty on every individual to respect the legal right bestowed on others and any person interfering with someone else’s enjoyment of their legal right is said to have committed a tort. Torts are basically civil wrongs which lead to civil damages. the underlying principle of the law of tort is that every person has certain interests which are protected by law. These are rights which people generally have against the whole world. In order to enforce these rights, the law recognizes certain principles of tort liability. Tort is generally a breach of duty. In India, the law of tort is uncodified and we need to rely on precedents and jurisprudence to understand these principles.
General Principle of Liability
The general principle of liability talks that if any damage had been caused to any person by any other person, the suffered person should be compensated for the damage caused to him. The essentials of tort are Act or omission along with legal injury. Along with it, it also includes negligence and intentional tort like battery, assault, etc.
But there is a very genuine question that whether the tort should be called a law of Tort or a law of torts. The basic difference between these two is that the Law of Tort says that if any damage happens to any person then he should be compensated irrespective of the debate that whether the act or omission causing such damage falls within a specific rule or not. But the Law of Torts says that the person suffering damage will be compensated only if the act or omission of the person causing such damage falls within specific rules.
1. Law of Tort Theory
Winfield propounded of ‘Law of Tort’. This theory is supported by Pollock and courts have repeatedly extended the domain of the law of torts He stated that the general meaning of Tort is wrong. He said that a person will be liable for compensation if his act or omission causes damage to others. He said that there is no need for any justification. If any damage had been suffered due to the act or omission of another person, then the person suffering damage must be compensated. Thus according to this theory, tort includes all specific wrongs and also those which cause unjustified harm to any person until and unless there is any justification in law.
The theory of Winfield was based on the assumption tort is a continuously growing branch of law and the number of acts or omissions leading to any wrong cannot specify in totality. The area of tortious wrong expands with this growing society and it cannot be restricted to a particular number of wrongs due to the changing nature of wrong in an ever-expanding society. Basically, this theory purports that a new wrong can be created by a court if it thinks fits. This enables the courts to create new torts and make defendants liable irrespective of any defect in the pleading of the plaintiff.
The Judiciary in India has also approached Winfield’s theory where they stated that we need to develop new principles and rules which will deal with new challenges. The court in the case of M.C. Mehta v. UOI, has stated that we have to evolve new principles and lays down new norms which will adequately deal with new problems which arise in a highly industrialized economy.
Law of Torts Theory
The second theory was proposed by Salmond. This theory is also known as the Pigeon hole theory. According to this theory, “there are a definite number of Torts and outside these torts, no tortious liability arises Hence, in Salmond’s pigeon hole theory, there is no general principle of liability. The law of tort consists of a neat set of pigeon holes, each containing a labeled tort. If the defendant’s wrong does not fit any of these pigeon holes he has not committed any tort.
Each theory is correct from its point of view, it depends on the question of approach or looking at things from a certain angle. On the whole, if we are asked to express our preference between the two theories, in the light of recent decisions of competent courts we will have to choose the first theory of liability that the subsequent one. Thus it is a matter of interpretation of courts so as to select between the two theories. The law of torts has in the main been developed by courts proceeding from the simple problems of primitive society to those of our present complex civilization.
In an Indian decision, Lala Punnalal v. Kasthurichand Ramaji, it was pointed out that there is nothing like an exhaustive classification of torts beyond which courts should not proceed, that new invasion of rights devised by human ingenuity might give rise to new classes of torts.
The first theory argues that decisions such as Donoghue v. Stevenson show that the law of tort is steadily expanding and that the idea of its being cribbed, cabined, and confined in a set of pigeon holes is untenable.
Principles of Tort Liability
Although most principles of tort law originate from English common law, Indian courts have modified them to meet local requirements. The following are some important tort law principles:
1) Damnum Sine Injuria
Damnum sine injuria is a Latin legal maxim that basically means damage without injury. It means an actual loss which occurs without the infringement of any legal rights. This is because the mere loss of money or money’s worth does not amount to any tort. In order to constitute some tort, a real violation of some rights must take place in the form of legal damage.No liability can arise in such cases. When there is the actual damage caused to the plaintiff without an infringement of his legal right, no action lies against the defendant. In order to make someone liable in tort, the plaintiff must prove that he has sustained legal injury. Damage without injury is not actionable in the law of torts.
Example: A sets up a rival school opposite B’s school with a low fee structure as a result of which students from B’s school flocked to A’s school thereby causing a huge financial loss to A. This act of A is not actionable in the law of torts since it did not lead to the violation of any legal right of the plaintiff although he has sustained financial loss.
2) Injuria Sine Damno
In contrast with damnum sine injuria, the principle of injuria sine damno means an infringement of rights without actual losses. Since this leads to infringement of rights, liability can arise even if no person suffers actual or substantial losses. It implies an infringement of the legal rights of a person without any actual loss. Loss in this sense could mean loss of health, monetary loss, etc. Since there is an infringement of the legal right of a person, the right to sue for a remedy is available against the wrongdoer regardless of the fact whether any actual loss is sustained or not.
For example, trespassing of property is a serious violation of a person’s right to protect his property. In such cases, the trespasser is liable to pay compensation even if he causes no real damage.
In the leading case of Ashby v White the defendant, a returning officer at a voting booth refused to allow the plaintiff, a duly qualified voter from voting. The candidate for whom the plaintiff was voting got elected and therefore no loss was suffered by him. The court held that although the plaintiff did not sustain any actual loss, but his legal right to vote was violated for which he was granted a remedy.
3) Principle of Vicarious Liability
The general rule of tort liability is that the person who causes damage must pay compensation. In certain cases, however, liability can arise on third parties also. The law refers to this vicarious liability. In order for vicarious liability to arise, there should be some legal relationship between the defendant and the third party. In other words, the law must be able to attribute and extend liability to the third party.
Vicarious liability can also arise in the course of employment due to the master-servant relationship between employers and employees It is a general rule that a person is responsible for his own act of omission and commission but in certain cases, a person is liable for the actions of others. This is known as vicarious liability.
For example, the law of partnership recognizes that partners are agents of each other. Therefore, one partner can be liable for the defaults of another.
The essential elements of vicarious liability are as follows:
- There must be a relationship of a certain kind.
- The wrongful act must be related to the relationship in a certain way.
- The wrongful act must be done within the course of employment.
In the case of Wilson v. Tumman, (1843) 6 M&G 236 (242), as – “an act is done, for another, by a person not assuming to act for himself, but for some other person; though without any precedent authority whatever, becomes the act of the principal if subsequently ratified by him, is the known and well-established rule of law”.
4) Volenti Non-Fit Injuria
Latin for “to a willing person, no injury is done”. This doctrine holds that a person who knowingly and willingly puts himself in a dangerous situation cannot sue for any resulting injuries.
In case, a plaintiff voluntarily suffers some harm, he has no remedy for that under the law of tort and he is not allowed to complain about the same. The reason behind this defense is that no one can enforce a right that he has voluntarily abandoned or waived. Consent to suffer harm can be expressed or implied.
In Hall v. Brooklands Auto Racing Club  1 KB 205, the plaintiff was a spectator of a car racing event, and the track on which the race was going on belonged to the defendant. During the race, two cars collided, and one was thrown among the people who were watching the race. The plaintiff was injured. The court held that the plaintiff knowingly undertook the risk of watching the race. It is a type of injury which could be foreseen by anyone watching the event. The defendant was not liable in this case.
In Wooldridge v. Sumner  2 QB 43, a plaintiff was taking some pictures standing at the boundary of the arena. The defendant’s horse galloped at the plaintiff due to which he got frightened and fell into the horse’s course and was seriously injured. The defendants were not liable in this case since they had taken due care and precautions.
In the case of Thomas v. Quartermaine (1887) 18 QBD 685, the plaintiff was an employee in the defendant’s brewery. He was trying to remove a lid from a boiling tank of water. The lid was struck so the plaintiff had to apply an extra pull for removing that lid. The force generated through the extra pull threw him into another container which contained scalding liquid and he suffered some serious injuries due to the incident. The defendant was not liable as the danger was visible to him and the plaintiff voluntarily did something which caused him injuries.
In Illot v. Wilkes, a trespasser got injured due to spring guns present on the defendant’s land of which the plaintiff had knowledge. He knowingly undertook the risk and then suffered injuries for the same. This was not actionable and the defendant was not liable in the case.
5) Strict Liability and Absolute Liability
These two principles levy liabilities on industrial and business ventures when their commercial activities cause damages to the public. They basically state that liability in some cases should arise even in the absence of intention or negligence.
The rule of strict liability says that if a business’s commercial activities harm somebody, it should compensate him. This liability will arise even if it took all necessary precautions to prevent the damage.
In Rylands v. Fletcher, water from a person’s mill entered and damaged his neighbor’s mines. The court levied liability on the defendant even though it was his contractor who was at fault and not him.
If the law imposes strict liability on a person, it also allows him to take certain defenses.
For example, a defendant may say that the damage occurred due to natural calamities beyond his control.
In absolute liability, however, he cannot take any defense whatsoever and has to pay compensation in all cases. This happens in cases of damages arising from hazardous activities, like the Bhopal Gas Disaster.
4. R.K. Bangia Law of Torts, 26th Edition 2021 by Allahabad Law Agency
5. . M.N. Shukla The Law of Torts 18th Edition Central Law Agency
6. THE LAW OF TORTS by Dhirajlal & Ratanlal 28th Edition LexisNexis Publication
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