TORT

Definition:Tort is a civil wrong which is redressible by action for unliquidated

damages and which is other than a mere breach of contract or
breach of trust.
The word tort has been derived from the latin term
tortum, which means to twist. Thus, tort means a
conduct which is not straight or lawful, but on the other
hand,twisted,crooked or unlawful. It is equivalent to the
English term Wrong. The term is found in Common Law
Systems for a civilly actionable harm or wrong and for the
branch of law dealing with liability for such wrongs.
Some definitions of tort are According to Sec. 2(m) of The Limitation Act, 1963- Tort
means a civil wrong which is not exclusively a breach of
contract or breach of trust.
According to 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 contract or the
breach of trust or other merely equitable obligation.
According to Fraser- It is an infringement of a right in rem of
a private individual giving a right of compensation at the suit
of the injured party.
According to Winfield- Tortious liability arisesfrom the
breach of a duty primarily fixed by the law: this duty is
towards persons generally and its breach is redressible by an
action for unliquidated damages.

Nature of Tort

(1). Tort means a civil wrong which is not exclusively a breach of

contract or breach of trust.
(2). It is acivil wrong for which the remedy is a common law action
for unliquidated damages and which is not exclusively the breach
of a contract or the breach of a trust or other merely equitable
obligation.
(3). Tortious liability arises from the breach of a duty primarily
fixed by the law; this duty is towards persons generally and its
breach is redressible by an action for unliquidated damages.
(4). It is an infringement of a right in rem of a private individual
giving a right of compensation at the suit of the injured party.

NEGLIGENCE
Negligence is a failure to exercise the care that a reasonably
prudent person would exercise
in like circumstances. The area of tort law known as negligence
involves harm caused by carelessness, not intentional harm.
According to Jay M. Feinman of the Rutgers University School of
Law;
"The core idea of negligence is that people should exercise
reasonable care when they act by taking account of the potential
harm that they might foreseeably cause harm to other people."
"those who go personally or bring property where they know that
they or it may come into collision with
the persons or property of others have by law a duty cast upon
them to use reasonable care and skill to
avoid such a collision." Fletcher v Rylands ([1866] LR 1 Ex 265)
Through civil litigation, if an injured person proves that another
person acted negligently to cause their injury, they can
recover damages to compensate for their harm. Proving a case for
negligence can potentially entitle the injured plaintif

to compensation for harm to their body, property, mental wellbeing, financial status, or intimate relationships. However,
because negligence cases are very fact-specific, this general
definition does not fully explain the concept of when the
law will require one person to compensate another for losses
caused by accidental injury. Further, the law of negligence
at common law is only one aspect of the law of liability. Although
resulting damages must be proven in order to recover
compensation in a negligence action, the nature and extent of
those damages are not the primary focus of negligence cases.

Theories of Negligence
There are two rival theories of the meaning of the term
negligence. According to the one, negligence is a state of mind
(Subjective theory); according to the other, it is merely a type of
conduct (Objective theory).
(1)
Subjective theory- It is given by Salmond. His views
is that negligence is culpable carelessness. Although
negligence is not the same as thoughtlessness or
inadvertence, it is nevertheless essentially an attitude of
indiference with respect to ones conduct and its
consequences. A person is made liable on the ground of
negligence because he does not sufficiently desire to avoid a
particular consequence- a harm. He is careless about the
consequence and does the act not withstanding the risk that
may ensue. Winfield, an advocate of this theory, says that
as a mental element in tortuous liability, negligence usually
signifies tota or partial inadvertence of the defendant to this
conduct and for its consequences.
(2)
Objective theory- It is given by Pollock. His view is
that negligence is an objective fact. It is not a particular
state of mind or form of the mens rea at all, but a particular
kind of conduct. Negligence is a breach of duty to take
care, and to take precautions against the harmful results of
ones actions and to refrain from unreasonably dangerous
kinds of conduct. To drive at night without lights is

negligence, because to carry lights is a precaution taken by

all reasonable and prudent men for the avoidance of
accidents. Pollock says that negligence is the contrary of
diligence, and no one describesdiligence as state of mind.
So it is never a mental state. This view obtains strong
support from the law of tort, where it is clearly settled that
negligence means a failure to achieve the objective standard
of the reasonable man.If the defendant has failed to achieve
this standardmit is no defence for him to show that he was
anxious to avoid doing harm and took the utmost care of
which he was capable. The same seems to hold good in
criminal law.

Negligence is of two kinds(a) Advertent negligence - It is called willful negligence

or recklessness also. In this negligence, the harm done is
foreseen as possible or probable, but it is not willed. For
example, a person who drives furiously in a crowded
street and causes injury or harm to persons commits it by
advertent negligence. For legal purposes, such negligence
is classed with intention.
(b) Inadvertent or simple negligence- It is result of
ignorance, thoughtlessness or forgetfulness. In such
negligence harm caused is neither foreseen nor willful. For
example, a doctor who treats a patient improperly through
negligence.

Essentials of Negligence
In an action for negligence, the plaintif has to prove
following essentials:
(1)
That the defendant owed duty of care to the plaintif.
(2)
The defendant made a breach of the duty i.e. he failed
to exercise due care and skill.
(3)
Plaintif sufered damage as a consequences thereof.

(1) Duty of care to the Plaintif

An action for negligence proceeds upon the idea of an
obligation or duty on the part of the defendant to use
care, a breach whereof results in the plaintifs injury. It is
not necessary that the duty neglected should have arisen
out of a contract between the plaintif and the defendant.
However, the duty may arise by a statute or otherwise.
Thus, the idea of negligence and duty are strictly
correlative, and there is no such things as negligence in
the abstract; negligence is simply neglect of some care
which one is bound by law to exercise towards another.
For example, if a man is driving on a barren plain, and no
other person is near him, he is at liberty to drive as fast as
recklessly as he pleases. But if he sees another carriage
coming near to him, immediately a duty not to drive in
such a way as is likely to cause an injury to that other
carriage.
(i)Legal DutyDuty of care means a legal duty rather than mere moral,
religious or social duty. In the absence of such legal duty,
negligence in the popular sense has no legal consequences. It is
not sufficient to show that the defendant was careless; the
plaintif has to establish that the defendant owed to the plaintif a
specific legal duty to take care. It depends on each case whether
a duty exists.
LEADING CASE: DONOGHUE V STEVENSON
(SNAIL-IN-THE-BOTTLE CASE)
[(1932) A.C. 562]

In the present case, the appellant plaintif (Donoghue) drank a

bottle a bottle of ginger beer which was brought from a retailer by
her friend. The bottle in fact contained the decomposed body of
snail, which was found out by her when she had already
consumed a part of the contents of the bottle. The bottle was of
dark opaque glass sealed with a metal cap so that its contents
could not be ascertained by inspection. The plaintif brought an
action against the manufacturer of beer(Stevenson) to recover
damages which she sufered due to serious efects on her health

by shock and severe gastro-enteritis. The plaintif claimed that it

was defendants duty to have a system of work and inspection
sufficient to prevent snails from getting into ginger beer bottles.
The suit was defended on the following
grounds:
(1)
That the defendant did not owe any duty of care
towards the plaintif, and,
(2)
That the plaintif was a stranger to the contract and
thus her action was not maintable.
JUDGEMENT:The house of Lords rejected both the pleas of the defendant and
held that the manufacturer of the bottle was responsible for his
negligence towards the plaintif. It was the duty of the
manufacturer to use reasonable diligence to ensure that the
bottle did not contain any noxious or dangerous matter.
According to Lord Atkin: A manufacturer
of the products, which sells in such form as to show that he
intends them to reach the ultimate consumer in the form in which
they left him with no reasonable possibility of intermediate
examination and with the knowledge that the absence of the
reasonable care in the preparation or putting up of the products
will result in an injury to consumers life or property, owes a duty
to the customer to take that reasonable care.
In Barnett v Packer & Co. (1940) 3 All ER 575, the defendants
were manufacturers of sweets. A box of sweets manufactured by
them was sold to a middleman , who in return supplied it to the
plaintif. When the plaintif was putting the sweets in a displaying
tray, hiss finger was injured by a piece of wire in one of the
sweets. In a suit filed by the plaintif, the court held that the
defendants were clearly negligent and were , therefore, liable.
(ii) Reasonable Foreseeability of Injury
Whether the defendant owes a duty to the plaintif or not depends
on reasonable foreseeability of the injury to the plaintif. In other
words, the duty to take care arises as soon as there is reasonable
probability of danger from defendants conduct.

Standard of a reasonable man a useful test to decide culpability

is to determine what a reasonable man would have foreseen and
behaved under the circumstances. The reasonable man is
presumed to be free both from over-apprehension and from overconfidence. He is a person who is not in a hurry, but cool and
collected and remembers to take precaution for his own safety
even in an emergency.
In Safdar Husain v Union of India (AIR 1978 All. 53) a Head
clerk of Northern Railway, kept the cash-on-hand in an iron safe in
his office room, placed the key of the safe in an hidden place
inside a wooden almirah and locked it with his own lock. On
returning to duty the next day, he found that the almirah lock had
been broken open and the entire cash was gone. The question
was whether he could be said to be guilty of negligence. Held that
the railways authorities had not provided any place for keeping
the key of the safe by its employees when home, and that clerks
act in keeping the safe-key in hidden place in a locked almirah
rather than in his personal custody, according to the consistent
practice of Chief Booking Clerks, did not amount to gross
negligence, so as to render him liable. In fact, he had exercised all
the care which was expected of a prudent and reasonable person
in the circumstances.
(iii) When the Defendant is Not Liable for Negligence
(a)
When the injury to the plaintif is not foreseeable, then
the defendant is not liable.
In Cates v Mongini Bros. (1917) 19 Bom. L.R. 778, due to
some latent defect in the suspension rod of a ceiling fan
fixed in the defendants restaurant, it fell on the plaintif and
she was injured. It was held that since the defendants could
not foresee the harm, they were not liable.
(b)
To establish negligence it is not enough to prove that
the injury was foreseeable, but a reasonable likelihood of the
injury has also to be shown. Reasonable foreseeability does
not mean remote possibility. If the possibility of danger
emerging is only a mere possibility which could never occur

to the mind of a reasonable man, then there is no negligence

in not having taken extraordinary precautions.
In Bolton v Stone (1951) A.C. 850, a person on road was injured
by ball hit by a player on a cricket ground abutting on that
highway. The ground has been used for 90 years and during the
last 30 years the ball had been hit on the highway on about six
occasions but no one had been injured. Held, that the defendants
( committee and members of cricket club) were not negligent.
(c)
When the defendant owed a duty pf care to persons
rather than the plaintif, the plaintif cannot sue even if he
might have been injured by the defendants act. Thus, the
duty must be owed to the plaintiff. There must be proximity
in relationship i.e. parties are so related that it is just and
reasonable that the duty shall exist.
In Palsgraf v Long Island Railroad Co. (1928) 284 N.Y. 339, a
passenger carrying a packet was trying to board a moving train.
He seemed to be unsteady as if about to fall. A railway guard,
with an idea to help him, pushed him from behind. In this act, the
package(fire works) fell resulting in an explosion , as a result of
which the plaintif was injured. Held, that the guard if negligent to
the holder of the package was not negligent in relation to the
plaintif standing far away(about 25 feet).
(d)
Policy considerations do not negative the existence of a
duty to the plaintif. Such considerations are material in
limiting the persons who can claim that a duty of care was
owed to them by a person commiting a wrong.
In Hill v Chief Constable, West Yorkshire (1988) 2 All ER 238,
the constable was held no liable to the mother who last her child
at the hands of a murderer who couldnt be detected for his
earlier murders on the accounts of errors in investigation. Held
that public policy requires fearless and efficient investigation
without the shadow of potential action for damages for
negligence.

(2)Breach of Duty
It means not taking care which is required in a particular case.
The law requires taking of two points into consideration to
determine the standard of care required.
(i)
The importance of the object to be attained : The law does
not require greatest possible care but the care required is
that of a reasonable man under certain circumstances.
The law permits taking chance of some measure of risk so
that in public interest various kinds of activities should go
on.
In Latimer v A.E.C. Ltd. (1953) A.C. 643, due to heavy rain a
factory was flooded with water, which which got mixed with some
oily substance. The floors in the factory became slippery. The
factory owners spread all the available sawdust but some oily
patches still remained there. The plaintif slipped and was injured.
He sued the defendants and contended that, as a matter of
precaution the factory should have been been closed down. Held,
that the risk created was not so great as to justify that precaution.
The defendants had acted reasonably and, therefore, they were
not liable.
(ii)

The magnitude of the risk : The degree of care varies

according to the likelihood of harm and seriousness of
injury. A person handing a loaded gun is expected to take
more care than a person carrying an ordinary stick. The
driver of vehicle has to observe great care when he is
passing through a school zone, or he finds a blind man, a
child or a blind man.
In Nitin Whlia v Union of India (AIR 2001 Del 140), a
child visitor of Delhi zoo aged three years put his hand
inside the iron bars where a tigress was kept and his hand
was injured by tigress. It was held that the zoo authorities
should have put iron mesh on the rods and were liable in
damages for the injury and the child was not guilty of any
contributory negligence.

(3)Damages
`
It is also necessary that the defendants breach of duty must
cause damage to the plaintif. The plaintif has also to show that
the damage thus caused is not too remote a consequence of the
defendants negligence.

RES IPSA LOQUITUR

(Proof of Negligence)
In the common law of negligence, the doctrine of res ipsa
loquitur (Latin for "the thing itself speaks") states that the
elements of duty of care and breach can be sometimes inferred
from the very nature of an accident or other outcome, even
without direct evidence of how any defendant behaved. Although
modern formulations difer by jurisdiction, the common law
originally stated that the accident must satisfy the necessary
conditions of negligence.
Important Points:
(1)
By applying the maxim the burden of proof is shifted
from the plaintif to the defendant. Instead of the plaintif
proving negligence the defendant is required to disprove it.
The maxim is not a rule of law. It is a rule of evidence
benefiting the plaintif by not requiring him to prove
negligence.
(2)
The maxim applies when- (i) the injurious agency was
under the management or control of the defendant, and (ii)
the accident is such as in the ordinary course of things,
doesnot happen if those who have the management use
proper care. There must be no evidence of the actual cause
of the accident.
(3)
The rule that it is for the plaintif to prove negligence is
in some cases, of considerable hardship to the plaintif ,
because it may be that the true cause of accident lies solely
within the knowledge of the defendant who caused it.

(4)
The principle of res ipsa loquitur has no application
where the circumstancesin which the accident has taken
placeindicate that there must have been negligence but do
not indicate as to who was negligent or when the accident is
capable of two explanations.
(5)
Res ipsa loquitur is a common sense approach, not
limited by technical rules, to the assessment of the efect of
evidence in certain circumstances . It means that a plaintif
prima facie establishes negligence where
(i)

It is not possible for him to prove precisely what was

the relevant act or omission which set in train the
events leading to the accident, but

(ii)

On the evidence as it stands i.e. in the absence of any

evidence from the defendant, it is more likely than not
that the efective cause of the accident was some act or
omission of the defendant.

LEADING CASE: MUNICIPAL CORPN., DELHI v

SUBHAGWANTI
(CLOCK-TOWER CASE) (AIR 1966 SC 1750)
In this case , due to the collapse of the Clock Tower situated
opposite to Town Hall in the main bazaar of Chandani Chowk,
Delhi, a number of persons died. The Clock Tower belonged to the
Municipal Corporation of Delhi and was exclusivily under its
control. The trial court held that it was the duty of Municipal
Committee to take care of the building so that they should not
prove a source of danger to the persons using the highway as a
matter of right.
JUDGEMENT
The High Court held that the principle of res ipsa loquitur applied
to case and that it was the duty of the Municipal Committee to

carry out the periodical examination for the purpose of

determining whether deterioration had taken place in the
structure of building and whether any precaution was necessary
to strengthen it. The court found from the evidence that apart
from suoerficial examination ever made with a view to seeing if
there were any latent defects making the building unsafe.
In an appeal to the Supreme Court, the appelants contention was
that the doctrine of res ipsa loquitur do not apply to the case; that
the fall of clock tower was due to an inevitable accident which
could not have been prevented by the exercise of reasonable care
or caution; and that since the defects which led to the collapse
were latent, the appellant could not be held guilty of negligence.

Defences to Negligence

(a)

Vis Major

Vis Major (or act of God) is such a direct, violent, sudden ,

and irresistible act of nature as could not, by any amount of
human foresight, have been foreseen, or , if foreseen, could
not, by any amount of human care and skill, have been
resisted. Thus, acts which are occasioned by the elementary
forces of nature, unconnected with the agency of man or
other cause, will come under the category of acts of God,
e.g. storm, tempest, lightning, extraordinary fall of rain / high
tide/ severe frost, etc.
(b)

Inevitable accident

The second defence in an action for negligence is that of

inevitable accident. Thus, A is lying drunk on a roadway. B

approaches in a motor car round a bend in the road, but just

before he reaches the point at which, under ordinary
circumstances, he would first see A, a sheet of newspaper is
blown by the wind against his wind screen ant materially
obscures his view. He runs over A, and injuries him. Here, A
cannot succeed, it being a case of inevitable accident or
misfortune.
(c)

Contributory negligence of the plaintif

The third defence to an action for negligence is that of

contributory negligence of the plaintif himself. In certain
circumstances a person who has sufered an injury will not
be able to get damages from another for the reason that his
own negligence has contributed to his injury; every person is
expected to take reasonable care of himself. Thus when the
plaintif by his own want of care contributes to the damage
caused by the negligence or wrongful conduct of the
defendant, he is cosudered to be guilty of contributory
negligence.
(d)

Volenti non fit injuria

No injury is done to one who consents. Everyone is the best

judge of his interest and therefore the one who voluntarily
agrees to sufer harm is not allowed to complain for that and
ones consent is good for defence against oneself. This is so
because the harm voluntarily sufered does not constitute
the legal injury. No man can enforce a right,, which he has
voluntarily waived or abandoned.

PROFESSIONAL LIABILITY FOR NEGLIGENCE

Every person who enters into a learned profession undertakes to

bring to the exercise of it such care and skill as becomes one
belonging to that profession. A surgeon does not undertake that

he will perform a cure; nor he does undertake to use the highest

possible degree of skill; but he undertakes to bring a fair,
reasonable, and competent degree of skill.
(a)
Liability of Advocates for Negligence
Barristers and Solicitor Advocates till recently were immune
under the English law from being sued for professional
negligence. But the House of Lords in Arthur J.S Hall & Co.
v Simons (2003) 3 All ER 673 , took away this immunity on
the ground that neither public policy nor public interest now
justified its continuance.
In India, a legal practitioner is liable for any negligence in the
conduct of his professional duties.
In M. Veerappa v Evelyn Squeria ( AIR 1988 SC 506 ), the
Supreme Court held that an advocate who has been
engaged to act is clearly liable for negligence to his client.
(b)
Medical Negligence
A doctor when consulted by a patient owes him certain
duties, viz. a duty of care in deciding whether to undertake
the case, a duty of care in deciding what treatment to give
and a duty of care in the admistration of that treatment. A
breach of any of those duties gives a right of action for
negligence to the patient.
In Phillips India Ltd. V Kunju Punnu (AIR 1975 Bom 306) ,
plaintifs son, who was treated for illness by the defendant
companys doctor, died. The plaintif in her action contented
that the doctor was negligent and had given wrong
treatment. The court observed that the standard of care
which the law requires is not an insurance against accidental
slips . It is such degree of care as a normal skilful member of
the profession may reasonably be expected to exercise in
actual circumstances of the case in question. It is not every
slip or mistake which imports negligence. Held that the
plaintif could not prove that the death of her son was due to
negligence of the doctor and, therefore defendants could not
be made liable.

LEADING CASE: PINNAMANENI NARASIMHA RAO v

GUNDAVARAPU JAYAPRAKASU
(AIR 1990 A.P. 207)
In this case , the plaintif, a student aged 17 years, sufered
irreparable damage in the brain due to negligence of the
surgeon and the anesthetist. In this case , a proper diagnosis
was not done; the plaintif had a minor ailment- chronic
nasal discharge, and it was diagnosed as nasal allergy
performed the operation, there was every possibility of the
plaintif being saved from the brain damage.
Although the surgeon was aware that the plaintif had
respiratory arrest, still he carried on the operation merely
because the anesthetist informed him that the patient is fit
for thr operation. The anesthetist was also negligent in so far
as he failed to administer respiratory resuscitation by
oxygenating the patient with a mask/ bag, which is an act of
per se negligence in the circumstances.
JUDGEMENT
The court observed: A person engaged in some particular
profession is supposed to have the requisite knowledge and
skill needed for the purpose and he has a duty to exercise
reasonable degree of care in the conduct of his duties. The
standard of care neededin a particular case depends on the
professional skill expected from persons belonging to a
particular class. A surgeon or anesthetist will be judged by
the standard of an average practitioner of class to which he
belongs or holds himself out to belong.