Nature and Definition of Tort; General Defences notes — Unit 1

The word 'Tort' is derived from the Latin word 'tortum', which means 'to twist'. It implies conduct that is twisted, crooked, or unlawful. In law, a tort is a civil wrong for which the remedy is a common law action for unliquidated (unquantified) damages.

Unlike the Indian Penal Code or the Contract Act, the Law of Torts in India is uncodified. It relies heavily on English common law, judicial precedents, and the principles of justice, equity, and good conscience.

⇒1.1 Winfield vs. Salmond's Definitions

⇒1.2 Tort vs. Crime vs. Breach of Contract

• Tort vs. Crime: A tort is a private wrong (infringing individual rights) where the victim sues for compensation. A crime is a public wrong (against society) where the State prosecutes the offender to punish them (jail). Some acts, like assault, are both.
• Tort vs. Contract: In a contract, duties are fixed by the parties themselves. In tort, duties are fixed by law towards people in general. Contract damages are usually liquidated (pre-determined); tort damages are always unliquidated (decided by the court).

To constitute a tort, there must be a wrongful act which causes legal damage. This concept is explained through two contrasting Latin maxims.

⇒2.1 Injuria Sine Damno

Translation: Injury without Damage. (Legal injury without actual physical or financial loss).

• This maxim means that if a person's absolute legal right is violated, it is actionable as a tort, even if they suffered absolutely zero monetary or physical loss.
• Legal injury alone is enough.

⇒2.2 Damnum Sine Injuria

Translation: Damage without Injury. (Actual financial/physical loss without the violation of any legal right).

• This maxim means that causing actual loss or damage to someone is NOT a tort if it does not violate their legal rights.
• You cannot sue someone just because their lawful actions caused you to lose money.

Conclusion on Maxims: Tort law strictly follows Injuria Sine Damno. You can sue for a violated right without loss, but you cannot sue for a loss without a violated right.

When a plaintiff sues a defendant for a tort, the defendant can escape liability if they can prove any of the 'General Defences'. These defences apply across almost all torts.

⇒4.1 Volenti Non Fit Injuria (Consent)

Translation: 'To a willing person, injury is not done.' If you voluntarily consent to suffer harm, you cannot later complain about it. The consent can be express (signing a waiver) or implied (participating in a sport).

• Example: A spectator at a cricket match is hit by a ball hit for a six. The spectator cannot sue the batsman because by buying a ticket, he impliedly consented to the inherent risks of the game.
• Essential Condition: The consent must be free. It must not be obtained by fraud or compulsion.

The defense of Volenti non fit injuria completely fails in 'Rescue Cases'.

⇒4.2 Plaintiff the Wrongdoer

Based on the maxim Ex turpi causa non oritur actio (from a dishonorable cause an action does not arise). If the plaintiff was engaged in an illegal act at the time of injury, he might be barred from claiming damages (e.g., a trespasser scaling a wall gets bitten by a dog).

⇒4.3 Inevitable Accident

An accident that could not possibly be prevented by the exercise of ordinary care, caution, and skill.

⇒4.4 Act of God (Vis Major)

An Act of God is an extraordinary occurrence of circumstances which could not have been foreseen and which could not have been guarded against. It is an extreme version of an inevitable accident, strictly related to natural forces.

• Essentials: Must be due to natural forces (earthquake, unprecedented rainfall, tornado) AND must be extraordinarily severe, not a normal seasonal event.
• Case (Nicholas v. Marsland): The defendant created artificial lakes. Due to 'the heaviest rainfall in human memory', the embankments broke, destroying four county bridges. Held: Act of God; defendant not liable.

⇒4.5 Private Defence

The law permits the use of reasonable force to protect one's person or property against an unlawful threat. However, the force used must be proportionate to the threat.

• Example: If a thief tries to steal your wallet, you can push him. You cannot shoot him in the head.
• Spring Guns: In Bird v. Holbrook, the defendant set up spring guns in his garden to catch thieves without putting up a warning sign. A trespasser was shot. Held: Defendant is liable. Using deadly traps for mere trespass is disproportionate force.

⇒4.6 Necessity

Causing minor harm to prevent a much greater evil. The act must be done to prevent an imminent danger. (e.g., Pulling down a burning house to stop the fire from spreading to the rest of the street).

⇒4.7 Statutory Authority

If an act is authorized by the Legislature (Parliament), the defendant cannot be sued for torts arising out of it, provided it is done without negligence.

• Example: A railway company authorized by a statute to run trains is not liable for nuisance (noise, smoke, vibrations) caused to nearby residents, as it is protected by statutory authority.

⇒Summary of Key Takeaways

• Tort is a civil wrong redressible by unliquidated damages.
• Injuria sine damno: Actionable. (Ashby v. White).
• Damnum sine injuria: Not actionable. (Gloucester Grammar School).
• Volenti non fit injuria: Consent is a defense, but knowledge is not consent (Smith v. Baker). Volenti fails in rescue cases (Haynes v. Harwood).
• Other defenses include Inevitable Accident, Act of God, Private Defence, Necessity, and Statutory Authority.

⇒University Exam Tips for this Unit

• The Maxims: You are 100% guaranteed to get a question asking to distinguish between Injuria sine damno and Damnum sine injuria. Memorize the Ashby v. White and Gloucester cases perfectly.
• Rescue Cases: Examiners love to frame problem questions around a person jumping in front of a train to save a child. Always identify the defense as Volenti, reject it using the 'Rescue Exception', and cite Haynes v. Harwood.
• Proportionality in Defence: When asked about Private Defence, explicitly state that setting deadly traps or using excessive force destroys the defense.