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1. 1 Types of torts
1.1 Intentional tort
In order to commit an intentional tort, some action must be done with a
purpose i.e there must be an intention to commit an act. For the welfare of
the society, it is generally assumed that no one should attack the other person
intentionally. For example, if you hit a person with an iron rod on the head,
there was an intention to cause injury to that person in a particular way.
Intentional tort includes the following
1.1.1 Battery
When some force is applied physically to the body of another person in an
offensive manner which causes some harm is called battery. Battery constitutes
the offensive touching which is not consented by the other party. Even if the
person did not intend to injure the other person but if he has the knowledge
that his act could harm someone in any way then also the battery is constituted.
The personal liberty of the person is interfered in any way with the intention
to cause harm. Common examples of the battery include hitting a person with
a stick, punching someone on the face.
Elements of battery include:
• There must be an intent to use some physical force.
• There must be actual physical contact with the body of another person.
• There must be some harm.
1.1.2 Assault
When the act of one person creates an apprehension in the mind of another
person that such act is likely or intended to cause such harm. It could range
from pointing a gun at a person to verbally threatening a person. Apprehension
should not be confused with fear. Apprehension is when a person is aware that
the injury is imminent. There is an assault if a person threatens to shoot
another while pointing a gun another him, even if the victim later discovers
that the gun was not loaded. Unlike the battery, there is no physical contact in
an assault. For example, if a person makes a flinch but does not actually punch
the person then there is an assault.
Essential elements of assault are:
1. There must be an apprehension of harm.
2. There must be an intention to use force.
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2. 1.1.3 Difference between Assault and Battery
SN Assault Battery
1 The purpose here is to threaten. The purpose is to cause harm.
2 There is no physical contact,
only such apprehension.
Physical contact is mandatory.
3 Pointing a stick towards a
person is assault.
Hitting with the stick is battery
as there is a physical contact
between the two people.
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1.1.4 False imprisonment:
It is the unlawful confinement of the person without his will. It is not necessary
that person should be put behind the bars, a mere impossibility of escape
against the will of the person from a certain area is enough to constitute a tort
of false imprisonment. It includes the use of physical force(actual expression of
force is not always necessary), a physical barrier like a locked room, invalid use
of legal authority. False arrest is the part of false imprisonment which includes
detaining of the person by the police without lawful authority.
Essential elements are :
1. There must be an intention
2. Period of confinement
3. Knowledge of the plaintiff
4. Place of confinement
Malicious prosecution falls within the category of false imprisonment. It not
only includes malicious proceedings and arrests instituted falsely but also
includes malicious search, malicious bankruptcy and liquidation proceedings.
In order to prove malicious prosecution, these essentials should be kept in mind:
1. There must be malice towards the plaintiff
2. The absence of reasonable cause
3. Prosecution by the defendant
4. Damage was suffered by the plaintiff as a result of the prosecution
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3. 1.1.5 Trespass
It is the intentional, unreasonable invasion of the property, land, person or
goods. The unreasonable interference can cause harassment or harm to the
other person, no matter how slight it is. The legal right of the owner of the
property is infringed because he is deprived of his right to enjoy the benefit
of the property by the misappropriation or exploitation of his right. Types of
trespass are:
• Trespass to person: When a wrong is done to the individual and in some
way personal liberty and interference is caused to the body of the person.
It is an invasion of person’s right to freedom. The dignity of the person is
protected by it, even if no physical injury is caused. For example, taking
the fingerprints of a person forcefully. It consists of following torts: assault,
battery, and false imprisonment.
• Trespass to land: Unlawful interference to the land of some other person
is the trespass to land. Land here includes not only the building and the
surface but also the subsoil and airspace. Even if there is no damage done
to the property but if the person enter the land of another person without
his permission, then it is trespass. If a delivery boy was supposed to deliver
the goods at the front door of the house but seeing the house open he enters
one of the rooms to which he was not entitled, then he has done trespass
to land. A person will not be liable for trespass if he enters the premises
or land to save the life of another person. For example, if a person sees
in a baby trapped in a fire in a house, then if he enters the house to save
him he will not be guilty of trespass. The owner of the property owes some
duty to the guest. If any guest is injured on the property in possession of
the owner then the owner can be held liable.
• Trespass to chattels: Also referred as trespass to personal property
or goods, it is the interference or unauthorised use of person’s lawful
possession of property without his permission. Chattel can be referred
to personal property whether moving or not but it does not apply to land
or real property. For example, two friends were studying together. After
they were done with studies one of the friends took the book of another
assuming it to his book. There is trespass to chattel as there was an
intention to take the book. So the mistake of ownership cannot be used
as a defense in this case. The person can recover actual damages which
are measured by the diminished value of the chattel that resulted from the
defendant’s actions.
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4. 1.2 Defamation
It is an injury or harm caused to the reputation, goodwill or character of the
person. There are two types of defamation in the form of Libel and Slander.
Libel is the publication of a false statement which is likely to cause harm to the
reputation of another person. Publication means it should come into the notice
of the third party. It must be in printed form for example writings, pictures,
cartoons, statues etc. When the false spoken statement results in lowering
the reputation of another person then it is slander. In, Harash Mendiratta
v. Maharaj Singh, it was held that only the person who has been defamed
can maintain an action and not his friends, family or relatives. Sometimes the
statement may appear to be innocent but there might be some hidden meaning
to it. In order to file a suit for defamation, the plaintiff must prove such hidden
meaning. Defamation in the law of tort deals mainly with libel. To prove that
the statement was libelous, it must be
• False
• Written
• Defamatory
• Published
If the defamation is proved when a suit is instituted, damages can be given to
the plaintiff as compensation and in some cases, injunction can also be granted
to restrain certain publication because of which a person has an apprehension
of being defamed.
Some of the defenses to defamation are:
• A substantially true report was published.
• When the case has been decided by the court it is not defamatory to express
any opinion on the merit of the case in good faith.
• Any truth which is published for the public interest.
1.3 Tort-based on Negligence
Negligence is the absence of reasonable care which is imposed on all persons
so as not to place the other person at foreseeable risk of harm through his
conduct. It is the failure to act is a particular way by taking into account the
apprehended injury that could be sustained due to carelessness to one party.
Elements of negligence are:
• Duty: There must be some duty or an obligation which one person owes
to another. If the defendant fails to fulfill the duty which he owes to the
plaintiff in the eyes of law then he can be held liable. So at first, it should
be assessed whether the defendant owes any duty of care to the plaintiff
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5. or not. Sometimes the relationship between the plaintiff and defendant
creates a legal duty or obligation to act in a certain manner. For instance,
the doctor owes a duty of care to the plaintiff i.e to treat the patient in
an appropriate manner. If the doctor while treating the patient left a ring
in his abdomen, then he can be said to be negligent in giving appropriate
medical treatment. The doctor owed a duty of care towards his patient
which he failed to do so.
• Breach: once it has been assessed that defendant owes a duty of care to
the plaintiff, it should be further established that there was some breach of
duty i.e one person failed to exercise a take. “Amount of care” means the
care which a reasonable person would have taken in those circumstances.
Whether there was any breach of duty is both a subjective and objective
test. The defendant can be said to be negligent if he knew that his action
would affect the other person if he does not act in a particular way, for
eg. if the owner of the dog knows that his dog is of ferocious nature then
he should put some warning on the gate like “Beware of dog” or “Enter at
your own risk”. If he fails to do so then he can be held negligent in taking
such care.
• Causation (cause in fact): This element aims at establishing that there
should be some negligence on the part of the defendant which caused such
injury or harm to the plaintiff. The plaintiff should prove that the loss
suffered was caused by the defendant. The (but for) rule is used in proving
the causation i.e whether the injury suffered would have happened but for
the action of the target of your suit.
• Proximate cause: If a person cannot foresee that something bad could
happen to another person then how could he be held liable. To make the
person liable for alleged action it should be proved that his action was the
remote/closest cause for the injuries sustained. If the act is foreseeable
then only the person is liable otherwise not, for eg. If a motorcyclist hit
the pedestrian on the road due to which he suffered a severe injury on the
head. Seeing the sight on the internet, a woman whose house was on the
road had a heart failure. The motorcyclist was liable to the pedestrian as
he failed to take reasonable care while driving. But he is not liable to the
woman who had a heart attack because that was not foreseeable.
• Damages: The last element of negligence is damages. The person who
had sustained injury should be compensated for such harm. The test of
(reasonable person) is important to decide if the plaintiff is entitled to
compensation or not. The compensation given to the plaintiff should be
capable of putting him back in the position in which he was before the
incident took place. For eg., if the car driver hit the motorcyclist due to
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6. which he sustained injuries and had to miss work, the compensation that
the car driver could be made to pay should bear his medical expenses, lost
earnings and the pain and suffering endured by him.
1.4 Defenses:
i) Volenti non fit injuria: If a person acts voluntarily and is aware of the risk
associated, he cannot recover damages if he suffers harm. This is the voluntary
acceptance of risk. The person should be free to make a choice when the
employer forces an employee to take the risk of which he is aware but is not
willing to undertake. Here, the defense cannot be used by the employer if
an injury is sustained by the employee because the employer had forced the
employee to undertake the risk against his will.
Essential of Volenti non fit injuria:
1. There was knowledge of risk by the plaintiff
2. He voluntarily undertook such risk
ii) Contributory negligence: When the damage which the plaintiff has suffered
was partly due to his fault and partly due to the fault of the defendant, this
constitutes contributory negligence. In order to prove contributory negligence,
it must be proved that the plaintiff failed to take reasonable care for his safety.
In a collision between two cars, the defendant was driving negligently at high
speed. It was discovered that the plaintiff was not wearing seat belt due to
which he sustained the higher amount of injuries than if he had been wearing
a seatbelt. The plaintiff failed to take reasonable care which was expected on
his part. So he is liable for contributory negligence.
iii) Ex turpi causa: it means no defense or legal remedy can be initiated if the
cause of action which arose was due to the illegal conduct of the plaintiff i.e no
action can be found on a bad cause.
For example, Mr. Anil took a lift in a car which he knows was stolen by the
other person. Later, the car met with an accident, Mr. Anil cannot initiate an
action against the other party under this principle.
1.5 Strict liability under law of tort
It is the type of tort in which the defendant is held responsible for the injuries
sustained. The plaintiff need not prove whether the tort occurred or not, he
can sue the defendant for defective action. Under certain circumstances, if any
wrong happens then the perpetrator can be held responsible for such an act
when the activities are known to be fundamentally dangerous. This rule is
applicable in India as much as in England.
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7. For example, ‘X’ stores flammable propane tank in a factory near to ‘Y’ house.
As the consequence of mischief of rat the tank was set on fire tank because of
which Y’s property was damaged. Although there was no fault of ‘X’, still ‘X’
is liable as ‘Y’ suffered because of him.
In Ryland v. Fletcher, the defendants employed independent contractors to
construct a reservoir on their land for providing water to his mill. The
contractor failed to seal the unused mines which he found while digging. When
the water was filled in the reservoir, it burst through the shafts wand and water
flooded in plaintiff’s mines. Although the defendant has no idea about the
shaft and was not negligent. The incident took place because of the fault of the
contractor still the defendant was held liable.
Diagram
Following torts must be present to constitute the tort of strict liability:
1. Some dangerous thing must have been brought by a person on his land.
2. The thing kept on land must have escaped.
3. Non-natural use of land.
i) Plaintiff’s own fault: If some intrusion by the plaintiff in defendant’s property
causes some harm to him then the defendant cannot be held liable. In Ponting v
Noakes, the plaintiff’s horse ate some poisonous leaves from the defendant’s tree
after which he died. The defendant was not held liable as it was the wrongful
intrusion by plaintiff’s horse. No damage would have been done if the horse
would not have entered defendant’s property.
ii) Act of god: Circumstances which are not under the control of human beings
or which are not foreseeable fall under this rule. The defendant cannot be held
liable if some natural event leads to the escape of dangerous thing.
iii) Consent of the plaintiff: If the plaintiff has consented to the accumulation
of some dangerous thing on plaintiff’s land and the source of danger was for the
common benefit of both the plaintiff and defendant then defendant cannot be
held liable for such escape.
iv) Act of third party: If the act of third person causes some harm to the
plaintiff over which the defendant has no control or the person is not defendant’s
servant then he cannot be held liable under this rule. If the act of third party
is foreseeable then due care must be taken by the defendant.
v) Statutory Authority: Act done under the authority of statue is a defense
provided there is no negligence.
Another liability which arose after the case of M.C Mehta v. Union of India
was that of Absolute liability. According to this liability, if a person is engaged
in some dangerous activity which is the source of his commercial gain then he
owes some duty of care to the society if the escape of dangerous thing could
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8. cause catastrophic damage. He cannot take the exception of act of god or third
party.
In M.C Mehta v. Union of India, oleum gas leaked from one of the unit of
Shriram Foods fertilizer Industry in the city Delhi. Due to the leakage of this
gas, many people were affected. If the rule of strict liability would have been
applied in this situation then it would have been easy for the defendant to
escape by saying that the damage was due the act of stranger. The Supreme
Court was of the opinion that they do not have to follow the 19th century rule
of English Law and could evolve a new rule suitable to the economic and social
conditions existing in India. The court in this case by applying the rule of
absolute liability held the defendant liable. As per the directions of the court,
the organisations who filed the case could claim the compensation on behalf of
the victims
1.6 Other Tort
Nuisance: It is derived from a French word “nuire” which means to annoy or
harm. The person in possession of the property is entitled to free use and
enjoyment of his land and property without any unauthorised interference. If
any interference is caused then the tort of nuisance has occurred. It is different
from trespass which is the interference of plaintiff’s possession through some
tangible object or material whereas nuisance is the interference with the right
accessory to possession.
Elements of nuisance:
1. There must be some wrongful act committed by the defendant.
2. The wrongful act must result in some injury to the legal right of the plaintiff.
Kinds of Nuisance
• Public Nuisance: When the act of the person affects a large number of
people then it is termed as public nuisance. The aim of this tort is to
avoid unwarranted disturbance and ensure the right to safety and right to
enjoy the possession peacefully. For instance, shooting firecrackers in the
middle of the road. The claimant should prove that they have suffered
“special damage” over and above the effects on the other affected people
in the “class”.
• Private Nuisance: It is the interference with the enjoyment or use of land
or some right connected to it. The interference can be caused due to things
like smell, noise or any kind of vibration etc. For example, damage caused
to the health of person due to noxious fumes or the breaking of the window
by a cricket ball. In order to initiate the tort of private nuisance, the person
should prove that there was some interference, then the interference caused
was unreasonable. Nuisance can be caused either to property or some
physical discomfort.
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9. 1.7 Defenses
• If a private nuisance continues for 20 years then it is a special defense and
the right to continue a private nuisance may be acquired as an easement
by prescription. This type of nuisance can be enjoyed for a period of 20
years and after that, it will be legalised.
• If a statute has allowed or authorised to do a particular act, all remedies,
whether by way of indictment or action, are taken away, provided that
every reasonable precaution consistent with the exercise of the statutory
power has been taken away
An international contract document is one which highlights the
principlesgoverning an international transaction. It must be very clear
and precise. Since thescope or scale of an international business transaction
will be large, care should betaken to avoid mistakes, and to create a tight and
fool proof document that willrepresent the interests of both parties. Also, it is
a legal document and must begiven the respect it deserves.
1.8 International contracts
An international contract is a legal document that is related to cross border
dealsor agreement. When parties from different nations enter into a mutual
agreementover a product, service or business then the document signed between
them isknown as an international contract. The following are a few types of
international contracts:
1.9 Types of Torts
Broadly speaking, Torts are of three types:
• Intentional Torts o Against the Person: Assault, Battery, Infliction of
mental distress, False imprisonment o Against the Property
• Negligence
• Strict Liability
Tort law divides most specific torts into three general categories:
1. Intentional Torts – the causing of harm by an intentional act, such as
intentionally conning someone out of his money. 2. Negligent Torts – the
causing of harm through some negligent act, such as causing a car accident by
running a red light. 3. Strict Liability Torts – the result of harm incurred due
to the actions of another, with no finding of fault by the defendant.
Additional and separate specific torts include:
• Defamation Torts
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10. • Nuisance Torts
• Privacy Torts
• Economic Torts
1.10 Intentional Torts
Intentional torts are acts committed with the intent to harm another, or to
deliberately interfere with an individual’s rights to bodily safety, emotional
tranquility, privacy, control over property, freedom from deception, and freedom
from confinement. Intentional torts commonly include such issues as assault
and/or battery, false imprisonment, invasion of privacy, theft, property damage,
fraud or other deception, and trespassing.
Intent is a key issue in proving an intentional tort, as the injured party, called
the Plaintiff, must prove to the court that the other party, called the Respondent
or Defendant, acted intentionally, and knew that his actions could cause harm.
In some cases, the Plaintiff need only prove that the Defendant should have
known that his actions could cause harm. Many intentional torts may also be
charged as criminal offenses.
For example:
Raymond stops by the local bar for a few drinks before he heads home after
work. After drinking four cocktails, Raymond gets into his car, and runs a
stop sign, crashing into another car, seriously injuring its occupants. Although
Raymond might argue that he didn’t know he would hurt someone, it is expected
that Raymond should have known that driving under the influence is likely to
cause harm, or to kill another person.
Because Raymond intentionally drank alcohol, knowing he planned on driving
home, and any reasonable person should know that drinking and driving could
result in harm, he has committed an intentional tort. In addition, Raymond
may be criminally charged with felony DUI.
1.11 Negligent Torts
The acts leading to claims of harm or injury in negligent torts are not
intentional. There are three specific elements that must be satisfied in a claim
of negligence:
1. The defendant must have a duty or owe a service to the plaintiff or victim
2. The defendant must have failed that duty, or violated a promise or
obligation to the plaintiff
3. The plaintiff must have suffered an actual loss, injury, or damages that
were directly caused by the plaintiff’s actions, or failure to act
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11. 1.12 Strict Liability Torts
Strict liability refers to the concept of imposing liability on a defendant, usually
a manufacturer, without proving negligent fault, or intent to cause harm. The
purpose of strict liability torts is to regulate activities that are acknowledged as
being necessary and useful to society, but which pose an abnormally high risk
of danger to the public.
Such activities may include transportation and storage of hazardous substances,
blasting, and keeping certain wild animals in captivity. The possibility of
civil lawsuits under strict liability torts keeps individuals or corporations
undertaking such dangerous acts diligent in taking every possible precaution
to keep the public safe.
1.13 Suing Under Strict Liability Tort
In a strict liability lawsuit, the law assumes that the supplier or manufacturer
of the product was aware the defect existed before the product reached the
consumer. Because of this, the plaintiff need only prove that harm or damages
occurred, and that the defendant is responsible. To successfully bring a civil
lawsuit under a strict liability tort, the following elements must be proven:
1. The named defendant is the manufacturer of the defective product
2. The product was defective when the plaintiff purchased it
3. The defect was present when the defendant sold the product
4. The defect caused the plaintiff’s injuries or damages
5. The injuries or damages caused by the product’s defect were reasonably
foreseeable by the defendant
A plaintiff in a strict liability lawsuit may be awarded additional damages if he
can prove that the defendant knew about the defect when the product was sold
to consumers.
For example:
Amanda buys a new car from her local Zoom Auto dealership. Only three
months later, Amanda noticed her brakes felt soft, so she took her car to dealer’s
repair shop. They told her she just needed new brake pads, replaced them, and
sent Amanda on her way. A month later, while Amanda was driving on a busy
freeway, her brakes failed, and she crashed into another car. Amanda’s car was
very badly damaged, and Amanda suffered a broken arm and a concussion.
Amanda discovers, while researching the brake problem she had been having
with her car, that this particular model has had brake problems since it was first
released for sale to the public. In digging deeper, Amanda discovers that Zoom
Auto knew the car’s brake system was defective before they sold the cars, but
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12. determined it would be too expensive to bring them all back into the factory
to change out the brake systems.
In suing Zoom Auto, Amanda must use this information to prove:
1. Zoom Auto manufactured the defective vehicle
2. The car’s brake system was defective when she bought the car
3. The car’s brake system was defective when Zoom Auto sold the car to
Amanda
4. The brake defect caused Amanda’s injuries, as well as the severe damage
to her car
5. It was reasonably foreseeable that selling a car with a defective brake
system would cause injury to consumers
6. Zoom Auto knew about the defective brake system in this particular model
car before they sold the vehicles, yet chose to sell them anyway, in blatant
disregard of the safety of consumers
7. How law of torts is different from crime
1.14 Differences between Tort and a Crime
SN Tort Crime
1 The person who commits a tort
is known as ‘tortfeasor’.
The person who commits a crime
is known as ‘offender’.
2 Proceedings take place in Civil
Court.
Proceedings take place in
Criminal Court.
3 The remedy in tort is
unliquidated damages.
The remedy is to punish the
offender.
4 It is not codified as it depends on
judge-made laws.
Criminal law is codified as the
punishments are defined.
5 Private rights of the individuals
are violated.
Public rights and duties are
violated which affects the whole
community.
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