Saturday 28 January 2012

Good legal article on Basic Principles of Torts

It is very important to understand the meaning of tortuous liability or rather the nature of tort law in order to understand its purpose.[1]The expression tort is of French origin. It is derived from Latin word ‘tortum’, which means twisted or crooked act that is deviation from straight or right conduct. It is equivalent to English word wrong. Liability arises when a person commits a tort; thereby another person suffers damage or injury.

So a tort came, in law to define  particular class of wrongs for which an action in tort was recognized by the courts of common law as  remedy  and to lose the generic sense of wrong which it may have helped in accepted use.

Another interesting result of this association of the word with a form of action was that it came to refer also to the liability of a person who did not commit any tort or wrong, e.g. a master who is sued for the damages by the person injured by a tort committed by his servant[2]. This was because an ‘action in tort’ was the remedy against the master and in course of time and in response to new needs and situation, the master was held liable to pay damages even though he had not committed any tort. So the law of torts is that body of law which deals with the liability of persons against whom an ‘action in tort’ would lie.

Intent is a psychological attitude with which a person acts, and therefore it cannot ordinarily be straightly proved but must be inferred from surrounding facts and circumstances[3]. Intent refers only to the state of mind with which the act is done or omitted. It differs from motive, which is what prompts a person to act or to fail to act. Motive has been described as a concealed intent.[4]

The word intention is used in the logic of a plan to produce the damage complained of. It implies an precursor or knowledge of injurious consequence, and a went to produce it. When a person commits a tort with a mental condition of this kind, his liability is clear and does not need any discussion[5].

An intentional tort is any deliberate attack of, or interference with, the property, property rights, personal rights, or personal liberties of another that causes injuries without Just Cause or excuse. In tort an individual is considered to intend the consequences of an act—whether or not she or he actually intends those consequences—if the individual is substantially certain that those consequences will result.

There has been much less discussion of intention in law of tort and there are probably two reasons for this (apart from the relative uncommonness of cases on intentional torts). First, since the abolition of the forms of action the plaintiff may sometimes be able to fall back upon a wider principle of liability for negligence.

Secondly while the criminal intention law may insist that the defendant’s intention must extend to all the elements and consequences of his act making up the definition of the crime. The law of tort may separate the initial interference with the victim from the consequences of the interference and while intention or foresight may be necessary as to the former it may not as to the latter.[6] 


Personal injury lawsuits typically fall under the legal category of “tort litigation”, in which a plaintiff will seek restitution for injuries or damages caused by another. This type of litigation is typically civil rather than criminal, and is usually resolved with the award of financial compensation for the damages caused by the event in question.[7]

When dealing with tort litigation, it is important to be familiar with the elements that comprise a tort and how they are used in personal injury lawsuits. In order to prove that the defendant in a personal injury case is liable for the injuries suffered by the plaintiff, each of the elements of a tort must be present.

To constitute tort there must be a wrongful act committed by the defendant, ie ,the plaintiff has to prove that the defendant is guilty of committing a wrongful act. The expression ‘wrongful act denote to commission of an act ,which is contrary to law or omission of an act that is not doing an act which amounts to breach of a legal duty . The duty not to harm is owed to all persons alike, but the duty to avert harm is owed only to a narrowly defined class of persons.[8] . An omission is failure to do an act as a whole. [9]. An omission is a failure to act in circumstances where one has the ability and opportunity to act.[10] They must also be distinguished from mere thoughts and intentions “which are by themselves harmless, hard to prove and difficult to discipline.”[11].Where there is a duty to act an omission may create liability. As a basis for liability, the negligent act or omission must be the proximate cause of the damage suffered by the plaintiff.

If a person omits an act, which he is legally bound to do, is said to be an omission of an act or breach of duty and amounts to tort. Thus, to constitute tort the act must be wrongful in the eyes of law and not according to parties. Whether the act is wrongful amounting to tort or not ,is to be decided by the court .

To constitute tort, there must exist ‘injuria’ which means infringement or violation of a legal right . the plaintiff has to prove that his legal right is infringed due to the act of defendant .A legal right  has been defined  as a “capacity residing in one person of  controlling with assent and assistance  of the state, the  action of others “. The concept of injuria or legal damage can be explained through the following two maxims
  1. Injuria sine damno
  2. Damnum sine injuria

Injuria sine damno: it means infringement of legal right without damage .in other words plaintiff s legal right is affected but he has not suffered any loss or damage .in such cases, the suit is maintainable even though the plaintiff suffers no damage.

In Ashby vs. White it was said “every injury imports damage though it does not cost the party one farthing .for a damage not merely pecuniary but an injury imports a damage, when a person is there by hindered of his rights.”

Damnum sine injuria: It means “damage without the infringement of legal right .In this case plaintiff suffers loss of damage without any injury to his legal right. Hence, the plaintiff’s suit is not actionable.
In Gloucester Grammar School Case it was said “every person has a right to carry on his trade or profession in competition with others and if as a result of a healthy business competition, his rival suffers a loss, then he is not entitled to recover any compensation.”

Motive means the reason behind the act or conduct or an object to be achieved in doing in an act. Whereas means evil motive or bad motive or ill will. Salmond describes motive as the ‘Ulterior intent’. Generally motive is irrelevant in tort. A person cannot be liable in tort on the ground of evil motive (bad motive) if the act itself is not unlawful.

Evil motive or malice on the part of defendant is one of the essential elements to be proved by plaintiff in respect of torts viz deceit conspiracy, malicious prosecution and injurious falsehood. Similarly, good motive becomes relevant to get exemption from liability in tort. In cases of qualified privilege and fair comment as defence, the defendant can plead exemption in tortuous liability on the ground of good motive.

The word ‘Malice’ means ill-will or evil motive or bad motive. It also means to do an act willfully with any excuse or just cause. Baylay J. in Bromage vs. Prosser[12] defined Malice as “Malice in common acceptation means ill-will against a person, but in its legal sense, it means a wrongful act, done intentionally, without just cause or excuse.”  In tort, malice is used in two different senses namely:
1)      malice in law
2)      malice in fact or actual malice

Malice in fact or actual malice is also known as ‘express malice’ while malice in law is also known as ‘implied malice’. Express malice is an act  done with ill will towards an individual, whereas malice in law or implied malice  means an act done wrongfully ,and without reasonable and probable cause ,and not ,as in common parlance ,an act  dictated by angry feeling or vindictive motive .[13] As stated above, malice or evil motive is nor relevant for liability in tort .However it is relevant in the following exceptional cases:
        i.   In the torts of deceit, conspiracy, malicious prosecution and injurious falsehood, the plaintiff has to prove malice on the part of the defendant.
      ii.   To plead qualified privilege as a defense in tort of defamation malice is relevant.
    iii.    Causing personal discomfort by an unlawful motive may turn an otherwise lawful act into unlawful.


It is common knowledge that the thought of man shall not be tried, for the devil himself knoweth not the thought of the man.[14] : Intent requires "that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it." Intention in tort law is not necessarily a hostile intent, or a desire to do any harm.  Rather it is an intent to bring about a result which will invade the interests of another in a way that the law will not sanction.[15]

In Criminal Law the concept of criminal intent has been called mens rea, which refers to a criminal or wrongful purpose. If a person innocently causes harm, then she or he lacks mens rea and, under this concept, should not be criminally prosecuted. Although the concept of mens rea is generally accepted, problems arise in applying it to particular cases. Some crimes require a very high degree of intent, whereas others require substantially less.[16]Criminal law has attempted to clarify the intent requirement by creating the concepts of "specific intent" and "general intent."

Specific intent, in the law, is a state of mind which someone must be in to meet the standard for certain types of convictions. In such cases, the person intends to engage in a specific action and is aware of the consequences. Crimes which require proof of specific intent are known as specific intent crimes, and they include things like robberyand larceny.[17] Specific intent (also known as dolus specialis) is an intent (mens rea) which goes beyond the constituent (physical) elements of the crime (the actus reus).For specific intent to be proved, it must be shown that someone intended to do something, like depriving someone else of property, with a full awareness of the consequences. Just having intent is not enough for a conviction, however; the accused must also have committed actions which would reasonably have led to accomplishment of the intended goal. Thus, a person who wants to steal a neighbor's car is not guilty if someone else steals it. Specific Intent refers to a particular state of mind that seeks to accomplish the precise act that the law prohibits—for example, a specific intent to commit rape. Sometimes it means an intent to do something beyond that which is done, such as assault with intent to commit rape. The prosecution must show that the defendant purposely or knowingly committed the crime at issue.

In general intent crimes, it is not necessary for the prosecution to prove that the defendant intended the precise harm or result which occurred. The prosecution must prove, however, that the accused's actions were not accidental.[18] General intent is the intent to engage in conduct. Thus, in this case, it is not necessary for the state to prove that the defendant intended the precise harm or the precise result which eventuated.  Rather, the state is required to prove that the defendant intentionally and not inadvertently or accidentally engaged in (his/her) actions.[19] Occasionally mens rea is used synonymously with the words general intent, although general intent is more commonly used to describe criminal liability when a defendant does not intend to bring about a particular result. General intent does not require an intentional unlawful action but only that a wrongful act was committed. Specific intent requires intentional unlawful action.

Criminal law and tort law share the concept of transferred intent. Transferred intent (or transferred malice in English law) is a doctrine used in both criminal law and tort law when the intention to harm one individual inadvertently causes a second person to be hurt instead. Transferred intent is the intent to commit a criminal or civil wrong against one person that instead harms a different person. In this situation, the intent necessary to convict or find the wrongdoer liable transfers from the intended act to the committed act.[20] Under the criminal doctrine of transferred intent, the intent is considered to follow the criminal act regardless of who turns out to be the victim. Under the tort doctrine of transferred intent, the defendant is liable for monetary damages to the unintended victim.

Tort law is divided into two sections by intent. There is intentional tort, which is when one party meant to inflict harm on another; and there is unintentional tort, which is when harm was accidental. If someone meant to cause harm to one person, but accidentally harmed a third party, the doctrine of transferred intent makes the offender guilty of intentionally harming the third party. [21]What is unique about the intentional torts, what justifies separating them from other torts, is that intention is a unique mental state that cannot be equated or reduced to foreseeability (let alone negligence) and as such deserves special treatment by the law.

Intention plays a key role in criminal law, without a intent we can’t fix a criminal liability. On the other hand, the defendant’s mental state is virtually irrelevant in contract and property cases, which primarily focus on outcomes alone. Tort law lies somewhere between these two extremes. In tort law intention is a much less important ground of liability than negligence.[22] In many cases, intent  is irrelevant to a determination of tort liability, Whereas in some cases it plays a key role. Basic intentional torts include Assault and Battery, Defamation, conversion of property,  False Imprisonment,  Fraud,  invasion of privacy, and Trespass.

An intentional tort is any deliberate interference with a legally recognized interest, such as the rights to bodily integrity, emotional tranquility, dominion over property, seclusion from public scrutiny, and freedom from confinement or deception. These interests are violated by the intentional torts of assault, BATTERY, trespass,FALSE IMPRISONMENT, invasion of privacy, conversion, MISREPRESENTATION, and FRAUD.[23] The intent element of these torts is satisfied when the tortfeasor acts with the wants to bring about harmful consequences and is substantially certain that such consequences will follow.

Intentional torts are different from negligence claims, in that intentional torts are the infliction of injury or damage to property that was carried out with malice, willfulness or reckless disregard for the other person's rights. Under tortlaw's modern theoretical paradigm, all intentional torts are governed by three basic principles: (1) intent is a necessary and sufficient basis for holding someone liable; (2) each intentional tort must violate its own specific behavioral rule; and (3) all intentional torts require proof of the defendant's fault. Together, these principles appear to make intentional tort law both unique and self-contained. The first principle justifies creating an intentional torttheory of recovery. The second principle distinguishes that theory from negligence, which bases liability on the fixed standard of reasonable care. The third principle separates intentional torts from the no-fault theory of strict liability.[24]

Battery is an example of intentional tort. A battery occurs where the defendant has intentionally caused an offensive touching upon an item which is physically associated with the plaintiff. In both criminal and civil law, a battery is the intentional touching of, or application of force to, the body of another person, in a harmful or offensive manner, and without consent. A battery is often confused with an assault, which is merely the act of threatening a battery, or of placing another in fear or apprehension of an impending and immediate battery. A battery is almost always preceded by an assault, which is why the terms are often used transitionally or combined, as in "assault and battery."[25] Another way to think about battery is that there is intent to commit a harmful touching, that results in harmful or offensive contact, and causation between the first two elements.

The elements to establish the torts of battery are the same as for criminal battery, excepting that criminal intent need not be present. It is said that "personal indignity is the essence of an action for battery.[26] For a tortuous battery to occur, the requisite intent is merely to touch or make contact without consent. Therefore, a charge of battery can be brought for contact with any thing that can be "practically identified" with the body, such as clothing or something held in the hand. Furthermore, there is no requirement that a victim is aware of the contact - the victim can be asleep or unconscious.[27]It need not be an intention to do wrong, and the wrongdoer need not intend to cause the particular harm that occurs.

 Assault is an act of the defendant which causes the claimant reasonable apprehension of the infliction of a battery on him by the defendant.[28] As distinguished from battery, assault does not involve actual contact; it only needs intent and the resulting apprehension. To throw water at a person is an assault but if any drops fall upon him it is battery.[29]

Generally, the essential elements of assault consist of an act intended to cause an apprehension of harmful or offensive contact that causes apprehension of such contact in the victim..The act required for an assault must be overt. Although words alone are insufficient, they might create an assault when coupled with some action that indicates the ability to carry out the threat. A mere threat to harm is not an assault; however, a threat combined with a raised fist might be sufficient if it causes a reasonable apprehension of harm in the victim. Mere words do not amount to an assault. But the words which the party threatening uses at the time may either give to his gestures such a meaning as may make them amount to an assault, or, on the other hand may prevent them from being an assault.[30]

The intent standard for assault is more difficult to satisfy than that for battery because it is designed to provide a subsidy of a sort to the speech that is often intermixed with potentially threatening conduct.[31] The standard for assault requires intent to harm or to put someone in fear of immediate harm. The intention as well as the act makes an assault. In tort law, it can be specific intent—if the assailant intends to cause the apprehension of harmful or offensive contact in the victim—or general intent—if he or she intends to do the act that causes such apprehension. There can be no assault if the act does not produce a true apprehension of harm in the victim. There must be a reasonable fear of injury. The usual test applied is whether the act would induce such apprehension in the mind of a reasonable person. The status of the victim is taken into account. Virtually all jurisdictions agree that the victim must be aware of the danger. This element is not required, however, for the attempted battery type of assault. A defendant who throws a rock at a sleeping victim can only be guilty of the attempted battery assault, since the victim would not be aware of the possible harm.[32]

Among the tort against persons and personal relations, “Defamation” is of great importance. The term ‘Defamation’ means ‘Injury to the reputation or character of a person’. According to Winfield “Defamation is the publication of a statement which tends to lower a person in the estimation of right thinking members of society generally or which tends to make them shun or avoid the person.”A defamatory statement is one which is false and lowers the person’s esteem in the community or subjects the person to hatred, contempt, or ridicule. Defamation involves speech that damages the reputation of the victim.

Defamation is a dual wrong. It is a tort and also a crime under section 499 IPC. The plaintiff, to be successful in an action for defamation, has to prove the following conditions:

Defamatory: the plaintiff has to prove that the statement made by defendant contains defamatory words .sometimes the plaintiff contends that the statement is defamatory, while the defendant denies the same .in such a situation the court will decide basing on the circumstances of the case.

Publication: In the context of defamation law, a the suit  for defamation  to be maintainable ,the statement must be published when it  comes to knowledge of the third person i.e. a person other than the plaintiff or defendant .That term does not mean that the statement has to be in print.

There are two kinds of defamation, namely:
Libel: If the defamation is made in some permanent form giving scope for circulation and more severe consequences, then it is libel. E.g.  Written statements, cinematograph, statute etc. libel may be defined as a publication of false and defamatory statement in some permanent form, tending to injure the reputation of another person without lawful justification or excuse. In Youssoupoff vs. M.G.M. Pictures Ltd.[33] It was said that “there can doubt so far as the photographic part of exhibition is concerned , that is a permanent  matter to  be seen  by the eye ,and is the proper subject of an action for a libel ,if defamatory.”

Slander: If defamation is made in some temporary or transitory form without   giving scope for more circulation it is called slander e.g. spoken words, gestures etc. slander may be defined as a false and defamatory verbal or oral statement in transitory form tending to injure the reputation of another without lawful justification or excuse.

To constitute libel or slander the essential elements of defamation must be satisfied. A legal claim based on defamation entitles the victim to recover against the defamer for his or her emotional damages. In addition, the victim will be entitled to sue for punitive, or punishment, damages. Damages are typically to the reputation of the plaintiff, but depending upon the laws of the jurisdiction it may be enough to establish mental anguish. The plaintiff does not have to prove damages in defamation cases. Damages are presumed. This means that the plaintiff does not have to testify that he/she was emotionally destroyed or had to see a psychiatrist or other mental health specialist or doctor. Defamation claims also require the highest level of intent.[34] In defamation, intent to make statements about another which, in light of the facts, prove to be defamatory, is a sufficient basis for liability.[35]


Damage to property or a personal injury caused by another person is a civil wrong called a tort. If the injury or damage was unintentional, then the wrong is called an unintentional tort. In this connection the rules that are rules of ‘liability without fault’ , laid down in two famous cases, firstly, in the decision of the house of  lords in  Rylands v. Fletcher (1868), landmark case and , secondly, in the decision of the Supreme court of  India in  M.C. Mehta v. Union of India (1987) may be noted.

The rule laid down in Rylands v. Fletcher is generally known as ‘Rule  of strict liability, that is even if  the defendant  was not  negligent or rather, even if the defendant did not intentionally cause the harm or he was careful, he could still be made liable under the rule. Strict liability is a legal doctrine that makes some persons responsible for damages regardless of any fault and intention on their part. The plaintiff needs only to prove that the tort happened and that the defendant was responsible.

In Rylands V. Fletcher case the defendant constructed a reservoir on his land for providing water  to his mill. The defendant  was not aware that just next to his reservoir there were some unused mineshafts. The water burst through the  reservoir into the shafts and  flooded the plaintiff  coalmine to the adjoin land. The  defendant pleaded that he was not aware of shafts and there was no negligence on his part though there was negligence on the part of contractors he had hired for constructing the reservoir. But court rejected his plea and held defendant liable because if a person brings a potentially dangerous thing on his land and such thing escapes and does damages than such person should be responsible even if he was not negligent. It is similar to the rule of absolute liability except for the fact that there are no defenses to it.  If the rule of strict liability sounds unfair then consider the rule of absolute liability. Rules of absolute liability  are for specific public interest because very dangerous activities are involved in such acts.

The rule of strict liability was involved in the famous Indian case of M.C. Mehta v. Union of India (1987). This case was dealt with the  leakage of poisonous oleum gas from the units of Sriram industries  in delhi. As a result several people injured. The court held that irrespective of any lack of negligence or intention, the defendant was absolutely liable for the damages caused. They said that in the rule of absolute liability here no  defenses available as there in strict liability rule.  The court said  that person  who carries on a dangerous  activity for profit is responsible for any harm that may flow from such activity.

The most common kind of unintentional tort is negligence. The term negligence means a person has a duty to take care is not taken resulting in injury to another. In other words, infliction of an injury or damage as a result of failure to take care is called negligence. The tort of negligence may be described as “two in one tort”. This is to say it is an independent tort and a mode of committing certain torts. Independent or specific tort in sense, the plaintiff sues the defendant for the tort of negligence itself. Mode of committing another tort in the sense, when a plaintiff sues for specific viz. defamation trespass etc. the plaintiff has to prove negligence on the part of defendant.
Negligence was made independent tort in the early 20th century in the case, Blyth vs. Birmingham Water Works Co . According to Winfield negligence is the breach of a legal duty to take care, which results in damage, undesired by the defendant to the plaintiff. Negligence is the omission to do something, which a reasonable man guided upon those consideration, which ordinarily regulate human affairs, would do or doing something, which a prudent or reasonable man would not do. “Negligence" is not the same as "carelessness", since a person might employ as much care as they are capable of, yet still fall below society’s standards. It is possible that someone is very careful about their conduct, and yet harm occurs.

To succeed in an action for Negligence, the claimant must prove the three ingredients namely, the existence of a duty of a duty to take care which was owed to him by the defendant, breach of such duty by the defendant and the resulting damage to the claimant. ‘In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission: it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing.’[36]

Duty to care: The plaintiff has to prove that the defendant owed a duty of care towards him. This question for discussion in Donoghue v. Stevenson[37] case.  The House of Lords in its decision held that though Mrs. Donoghue, the victim had a valid claim, such a claim should not exist and thus it should be treated as a new product liability case. It was further held that there should be liability for negligent act and the law should recognize the principle that every person owes a duty of reasonable care to avoid acts or omissions which can be reasonably foreseen as likely to injure his neighbor. The defendant has a duty to take care care towards the plaintiff, if the injury is foreseeable. If the injury is foreseeable, the defendant owes no duty of care towards the plaintiff.[38] Also, as decided in the case of Hedley Byrne & Co. Ltd. V. Heller and Partners Ltd[39];a new duty of care was recognized to avoid making careless mis-statements which might cause financial loss to persons reasonably relying on them.

Breach of duty: The plaintiff has to prove that the defendant committed a breach of duty. Breach of duty means “non observance of a duty” or “failure to take care”. It is not enough to show that defendant was careless: the tort involves a breach of duty that causes damage that is not too remote.  A duty has been breached when a defendant has knowingly exposed another to potential damage. Duty is but one element in the tort of negligence, for it must be shown that not only was the defendant under a duty towards the claimant to be careful, but also that he failed to achieve the required standard of care and that that failure caused the damage, and ï¬nally that the damage was not too remote a consequence of the act.
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