Law of Torts and Consumer Protection Act

No single sentence captures tort law cleanly, which is why the syllabus gives you several. Each draws the boundary from a different direction. Knowing which direction is what turns four memorised sentences into one understood idea.

1. Salmond — the “process of elimination” definition

A civil wrong for which the remedy is a common law action for unliquidated damages, and which is not exclusively a breach of contract, breach of trust, or other merely equitable obligation.

Salmond never tells you what a tort is. He tells you what is left over once everything else has been removed:

1. It is a civil wrong — criminal law is out.
2. The remedy is unliquidated damages — the amount is not fixed in advance. A court works it out from the harm actually suffered. Contrast a contract, where parties often pre-agree a figure; that pre-agreed figure is liquidated.
3. It is not a breach of contract, not a breach of trust, and not a purely equitable obligation.

What is an “equitable obligation”, and why does Salmond exclude it?

So Salmond's exclusion is not fussiness. He is saying: yes, a trustee misusing trust property is a civil wrong — but it already has its own well-established box in equity and trusts law. Do not lump it into tort.

2. Winfield — the “positive” definition

Tortious liability arises from the breach of a duty primarily fixed by law; this duty is owed towards persons generally, and its breach is redressible by an action for unliquidated damages.

Where Salmond defines by exclusion, Winfield describes what actually generates the liability. Two phrases carry the whole thing:

1. “Duty primarily fixed by law” — you do not choose this duty by signing anything. The law imposes it. Everyone owes a duty not to injure others negligently; nobody ever agreed to it.
2. “Owed towards persons generally” — not to one identified person, as a contractual duty is, but to the world at large. This is precisely why a complete stranger can sue you in negligence, while only your counterparty can sue you for breach of contract.

3. Limitation Act, 1963, s.2(m) — the statutory shortcut

A civil wrong which is not exclusively a breach of contract or breach of trust.

The simplest of the four, and the only one with statutory force. It exists for a narrow purpose: the Limitation Act governs time limits for filing suits, and needed a workable definition of ‘tort’ for that job alone.

Notice what it omits — there is no mention of “other merely equitable obligation”, which Salmond includes. That is drafting economy, not a considered disagreement. It is a working definition, not a philosophical one, and you should say so if you cite it.

4. Fraser — the “rights” definition

An infringement of a right in rem of a private individual, giving a right of compensation at the suit of the injured party.

Fraser changes the lens entirely. Salmond and Winfield both look at duties. Fraser looks at rights — and the pivot is one Latin distinction that will recur throughout the subject:

Fraser's claim, then: a tort occurs when someone violates one of your against-the-world rights, and the law responds with compensation.

Why four definitions at all?

Because tort law is genuinely hard to pin down in one sentence. It stretches from road accidents to defamation to nuisance to industrial disasters, and no formula covers all of it without either excluding something it should catch or catching something it should not.

Examiners want several because each illuminates a different face of the same object:

A closing note on etymology, which is more than trivia: tort comes from the Latin tortum — twisted, crooked. The word carries the idea of conduct that has deviated from what is straight, which is a fair summary of the whole subject.

Three elements must be present before a court will hear a tort claim: a wrongful act or omission, a legal injury, and a legal remedy. The second is where marks are lost, for exactly the reason above.

1. A wrongful act or omission

The conduct must be one the law recognises as wrong. A purely moral wrong with no legal counterpart gives no action. Note that an omission counts — but only where a duty to act already existed. There is no general duty to rescue a stranger; there is a duty to maintain a structure you control.

2. Legal injury — and the two maxims

This is the conceptual heart of the subject. Both maxims are built from the same three Latin words, reordered.

They are mirror images — the same two Latin nouns, order flipped, outcome flipped. That is not a coincidence. It is the entire principle being drilled in through wordplay.

The cases — each one is just that idea, dramatised

3. A legal remedy

Ubi jus ibi remedium — where there is a right, there is a remedy. Word by word: ubi = where, jus = right, ibi = there, remedium = remedy.

A warning before the detail. Students write negligence answers that recite all four elements at equal length. Examiners mark the one the facts actually turn on. Read the problem, find the contested link, and spend your time there.

1. Duty of care

You are not liable for every harm you cause — only for harm to someone you owed a duty to. The whole of modern negligence begins with one case, and one paragraph inside it.

Lord Atkin's neighbour principle: You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be — persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected.

The modern test — Caparo's three stages

The neighbour principle proved too wide on its own; taken literally it would impose duties in almost every situation. English law now applies a three-fold test, which Indian courts also use:

2. Breach — the standard of care

A duty is owed in the abstract; breach is measured against a standard. The standard is objective: what would the reasonable person have done? Not what this defendant thought reasonable.

Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do; or doing something which a prudent and reasonable man would not do. — Alderson B., Blyth v. Birmingham Waterworks (1856)

What moves the standard up or down

Professional negligence — the Bolam standard

3. Causation

Breach alone is not enough. The breach must have caused the harm, and the starting point is the but-for test: would the harm have occurred but for the defendant's breach?

Breaking the chain — novus actus interveniens

A new intervening act may break the causal chain, so that the original defendant is no longer responsible for what follows. The intervening act must be genuinely independent — unforeseeable, and not merely the natural consequence of the original wrong.

• An act of the claimant — if wholly unreasonable, it may break the chain.
• An act of a third party — more likely to break it where deliberate rather than careless.
• A natural event — only if extraordinary. Ordinary weather does not break a chain.

The instinct to test is: was the intervening act the very kind of thing that made the original conduct negligent? If so, it does not break the chain — it is the reason the conduct was careless in the first place.

4. Remoteness of damage

Causation asks whether the breach led to the harm. Remoteness asks whether the law will hold the defendant responsible for that particular harm, or whether it is too far removed. The test changed fundamentally in 1961.

The thin skull rule survives this. You take your victim as you find him: if the kind of harm is foreseeable, it does not matter that its extent is greater because of some pre-existing frailty. A foreseeable knock on the head that kills an unusually fragile claimant remains actionable in full.

Proving negligence — res ipsa loquitur

The burden of proving negligence lies on the claimant. Sometimes that is impossible: the claimant was unconscious, or the accident happened inside machinery he could not see. The maxim — the thing speaks for itself — lets the facts do the work.

Three conditions:

1. The thing causing the harm was under the exclusive control of the defendant.
2. The accident is of a kind that does not ordinarily happen without negligence.
3. There is no explanation offered by the defendant.

Contributory negligence

Where the claimant's own carelessness contributed to the harm, damages are reduced in proportion to his share of responsibility. It is a partial defence, not a complete one — a distinction worth stating explicitly, because it was not always so.

Nervous shock

Negligence normally compensates physical injury. Psychiatric harm suffered without any physical impact was long treated with suspicion — partly from fear of fabricated claims, partly from the floodgates worry that one accident could generate hundreds of claimants.

The law responded by distinguishing two classes:

The control mechanisms for secondary victims are frankly artificial, and the courts acknowledge it. They exist to keep the class of claimants finite, not because they track any principled distinction about who suffers.

Tort and crime

Tort and contract

Two maxims carry the doctrine: qui facit per alium facit per se (he who acts through another acts himself) and respondeat superior (let the superior answer). Three justifications are usually offered — deep pocket (the employer can actually pay), control (the employer directs the work), and deterrence (the employer is best placed to prevent the harm by better systems).

The control test — who counts as an employee?

The defining feature is the right to control the manner and means of the work — not merely who pays. Relevant factors: control over how the work is done, power to hire and dismiss, method of payment, who supplies the tools, duration of engagement, and whether the work forms part of the employer's regular business.

Course of employment — Salmond's test

An act is within the course of employment if it is authorised by the master, or if it is a wrongful and unauthorised mode of doing an authorised act.

Borrowed servants

Dishonesty by an employee

The starting point: “the Crown can do no wrong”

The English fix: the Crown Proceedings Act, 1947

By the 1940s the immunity had become untenable. The Crown Proceedings Act, 1947 abolished the Crown's blanket immunity in tort and allowed it to be sued like any private employer for its servants' torts — with narrow carve-outs, notably acts of the armed forces in actual combat.

The point to hold onto: that Act is English. India never passed an equivalent. Everything that follows is a consequence of that one gap.

Article 300 — why India is stuck with the old rule

With no Indian Crown Proceedings Act, Article 300 of the Constitution becomes the governing provision. It allows the Union and the States to sue and be sued in the same manner as the corresponding pre-Constitution governments could.

Sovereign and non-sovereign functions — the test

Notice the contrast: Vidyawati and Kasturilal both involve a State employee's misconduct. One is “just driving a vehicle”; the other is “exercising a statutory police power”. That is the dividing line the courts kept applying.

Two military cases — same fact pattern, opposite outcomes

This is where the test earns its keep. Both cases involve military drivers causing accidents. The outcomes diverge purely because of what the vehicle was being used for at the time.

The erosion of Kasturilal — welfare state, not police state

Kasturilal has never been formally overruled. Its authority has instead been worn away by an argument that runs: it makes no sense for a welfare state, which exists to serve its citizens, to shelter behind colonial Crown immunity while its own officer walks off with a citizen's gold.

The erosion ran along two tracks at once — ordinary tort law narrowing sovereign immunity, and constitutional law creating a separate remedy that bypassed it.

1. Volenti non fit injuria — “to a willing person, no injury is done”

The logic: if you knowingly and voluntarily accepted a risk, you cannot turn round and sue when that exact risk materialises. You waived the right to complain.

But the defence is far narrower than it sounds, and three cases exist specifically to stop defendants stretching it:

2. Plaintiff the wrongdoer — ex turpi causa non oritur actio

“From a dishonourable cause, no action arises.” Courts will not help a claimant enforce a claim that is itself rooted in their own illegal or immoral conduct.

The reasoning is not that the defendant did nothing wrong. It is that the law refuses to let its own machinery be used to work out the profits of an unlawful enterprise. Two thieves falling out over the division of stolen goods will find no court willing to arbitrate the split.

3. Inevitable accident

The logic: tort liability outside the strict-liability regimes is fault-based. If an injury happens despite reasonable care, and could not have been foreseen or avoided, there is no fault — and therefore no liability.

4. Act of God (vis major)

Four things must all be true:

1. It is a natural force, not human-caused.
2. No human intervention contributed to it.
3. It is extraordinary — not routine weather or ordinary conditions.
4. It was unforeseeable and could not reasonably have been guarded against.

5. Private defence

You may protect yourself and your property with force — but only reasonable and proportionate force. Unlike some defences, this one has a built-in limit.

6. Mistake

Ignorantia juris non excusat — ignorance of the law excuses no one. As a general rule, mistake is no defence in tort, whether of law or of fact.

The logic: if honest mistakes excused liability, almost every tortfeasor could say “I didn't know” or “I thought it was fine”, and tort duties would mean nothing. Narrow exceptions exist elsewhere, but as a general defence it fails.

7. Necessity

Sometimes deliberately causing a smaller harm is justified because it prevents a greater one.

8. Statutory authority

If the legislature specifically authorises an activity, you cannot be sued in tort for doing that authorised activity as intended — otherwise courts would be overriding Parliament. But the authorisation covers the activity done properly. It is not a free pass for negligence in carrying it out.

Strict liability — Rylands v. Fletcher

The escape requirement, tested

Exceptions to strict liability: Act of God, the plaintiff's own fault, statutory authority, act of a stranger, and consent of the plaintiff. Notice how heavily these overlap with the general defences from the previous section — strict liability is not a separate universe; it borrows the same defence logic and applies it to a no-fault regime.

Absolute liability — M.C. Mehta

Private and public nuisance

What makes an interference unreasonable

Four factors are weighed. None is decisive alone; the court balances them.

Defences

• Prescription — a right to commit a private nuisance may be acquired by twenty years' uninterrupted continuance. Note carefully that time runs from when the activity became a nuisance to this claimant, which is why it failed in Sturges.
• Statutory authority — as elsewhere in tort, protecting the authorised activity done carefully, not negligence in performing it.
• Consent of the claimant.

Remedies

Damages, injunction, and abatement — the extra-judicial remedy of removing the nuisance yourself, such as cutting overhanging branches. Abatement must be exercised carefully: excessive self-help becomes a trespass in its own right.

Worked framework: a judge's checklist (class notes, 8 Oct)

Libel and slander

The four exceptions where slander is actionable without special damage: imputation of a criminal offence punishable with imprisonment; imputation of a contagious disease tending to exclude the claimant from society; imputation of unchastity or adultery to a woman; and words calculated to disparage the claimant in their office, trade or profession.

The three essentials

1. The statement must be defamatory — tending to lower the claimant in the estimation of right-thinking members of society generally, or to cause them to be shunned or avoided.
2. It must refer to the claimant — though not necessarily by name, if reasonable people would understand it as referring to them.
3. It must be published to at least one person other than the claimant.

Innuendo — when innocent words defame

A statement harmless on its face may be defamatory to those who know additional facts. This is innuendo, and it is the reason a defendant cannot escape by pointing to the literal meaning of their words.

Defences

1. Truth (justification)

A complete defence. If the statement is substantially true, the claimant has no reputation in that respect worth protecting — the law will not compensate the loss of a reputation one never deserved. The burden is on the defendant, and substantial truth suffices; minor inaccuracies do not defeat it.

2. Fair comment

Protects honest opinion on a matter of public interest. Four requirements: it must be comment, not fact; on a matter of public interest; based on true facts; and made honestly, without malice.

3. Privilege

The three forms

Trespass to the person

False imprisonment is a total restraint on the claimant's freedom of movement, without lawful justification. Two points are commonly tested: the restraint must be complete — a partial obstruction leaving a reasonable exit is not enough — and the claimant need not be aware of it at the time.

Trespass to land

Any unauthorised direct interference with land in another's possession. Three forms: entering the land, remaining after a licence expires, and placing or throwing objects onto it.

The claimant must have possession, not necessarily ownership. A tenant may sue in trespass; a landlord out of possession ordinarily may not.

Trespass ab initio: where entry is authorised by law rather than by the occupier, and the entrant then abuses that authority, the abuse relates back and makes the original entry a trespass. A rarely applied doctrine, but a favourite of examiners precisely because it is counter-intuitive.

Trespass to goods and conversion

Defences

• Consent — a licence to enter, which may be revoked on reasonable notice.
• Lawful authority — a warrant, or a statutory power of entry.
• Necessity — Cope v. Sharpe, from the general defences.
• Self-defence and defence of property — proportionate force only, as Bird v. Holbrook shows.

Judicial and extra-judicial remedies

The three judicial remedies — and why three are needed

The six kinds of damages

Exemplary damages in more detail

Most damages in tort answer: “how do we make the victim whole again?” Exemplary damages abandon that question and ask instead: “how do we punish this defendant and make sure nobody does it again?”

• They are awarded on top of compensatory damages, not instead of them.
• The amount is calculated from how outrageous or calculated the defendant's conduct was — not from the plaintiff's loss at all.
• The purpose is deterrence and punishment. This is unusual for tort, which is normally compensatory; punishment is criminal law's job. Exemplary damages are the one place tort borrows a punitive flavour.

Rookes v. Barnard narrowed when they may be given, precisely because courts worried about blurring the line between tort and crime. It confined them to roughly three situations:

1. Oppressive, arbitrary or unconstitutional conduct by government servants.
2. Conduct calculated by the defendant to make a profit exceeding the compensation payable — that is, where the defendant did the arithmetic and decided the tort was worth committing. Exemplary damages remove that incentive.
3. Where a statute expressly authorises them.