B.A. LL.B. (Five Years) Sem 2 Law of Torts 2019 Dec (100 marks) Question Paper with Solutions

1. Salmond looked at the remedy. A tort is a civil wrong for which the remedy is a common law action for unliquidated damages. It must not be exclusively a breach of contract, of trust or of another merely equitable obligation.
2. Winfield looked at the duty. Tortious liability arises from the breach of a duty primarily fixed by law. The duty is owed to persons generally, and its breach is redressible by an action for unliquidated damages.
3. Fraser looked at the right. A tort is an infringement of a right in rem of a private individual. It gives the injured party a right to compensation. A right in rem is good against the whole world.

Common ground. Read together, they say three things. The duty is fixed by law, not by agreement. It protects rights good against everyone. And its breach is remedied by damages the court itself assesses, called unliquidated damages.

The essentials

Every tort has three essentials:

1. a wrongful act or omission by the defendant;
2. which causes legal damage to the plaintiff; and
3. for which the law gives a legal remedy.

No duty, no tort. In Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum, (1997) 9 SCC 552, a roadside tree maintained by the Corporation suddenly fell and killed a pedestrian. The Supreme Court allowed the Corporation's appeal. A duty of care must first be established. A duty does not arise merely because a public authority has a statutory power, and here the fall was not reasonably foreseeable.

Essential 2: Legal damage

Meaning. Legal damage means the violation of a legal right of the plaintiff, called injuria. It does not mean loss of money, called damnum. What matters is whether a right was violated, not whether money was lost.

Injuria sine damno: actionable. In Ashby v. White (1703), as recounted by the Supreme Court in Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787, a returning officer wrongly refused a qualified elector's vote. His candidate won anyway, so he lost nothing. His claim for damages was still decreed. In Bhim Singh v. State of Jammu and Kashmir, AIR 1986 SC 494, a legislator was illegally detained on his way to a session. He had been released by the time of hearing, yet the Supreme Court awarded him Rs. 50,000.

1. Rylands v. Fletcher, (1866) LR 1 Ex 265, has been set out by the Supreme Court of India. Water from the defendants' reservoir burst through old mine shafts and flooded the plaintiff's mine. The defendants were liable though not negligent. That is strict liability.
2. M.C. Mehta v. Union of India, AIR 1987 SC 1086, followed the oleum gas leak in Delhi. The Supreme Court held that an enterprise in a hazardous activity is absolutely liable for harm from it, with no exceptions.

So a wrongful act may be one for which the law imposes liability without fault. Motive, too, is generally irrelevant, as Bradford shows, except in a few torts such as malicious prosecution.

Law of tort or law of torts?

Writers have long asked whether there is one general principle of liability or only a list of separate torts.

1. Winfield favoured a general principle. All harm caused to another is actionable unless there is a just cause for it. On this view, the courts may recognise new torts as new wrongs appear.
2. Salmond favoured a list of particular torts, each with its own rules, like separate pigeon-holes. A plaintiff must bring his case within one of them, or he fails.

Conclusion. A tort is a civil wrong, other than a mere breach of contract or trust, as section 2(m) of the Limitation Act 1963 provides. It arises from a duty fixed by law and is remedied by unliquidated damages. It has three essentials. There must be a wrongful act or omission in breach of a legal duty, and legal damage in the sense of a violated right. There must also be a legal remedy. An omission is enough where the law imposes a duty, as in Subhagwanti, but there is no tort without a duty, as Rajkot holds. A violated right is actionable without loss, as Ashby v. White shows, while loss without a violated right is not, as Bradford shows.