The Nature and Scope of Tortious Liability

Why it matters here. Every proposition in MU's topic about the nature of tortious liability is in that passage, stated by the Supreme Court of India rather than by an English textbook writer. It is also the authority for the openness of the subject, which is the argument of chapter [Law of Tort or Law of Torts].

The nature of tortious liability, in five propositions

1. The duty is fixed by law, not by agreement. Nobody consents to the duty not to defame, not to trespass or not to drive carelessly. The law attaches these duties to everyone, and it does so whether or not the parties have ever met. This is the difference that decides most problem questions: ask where the duty came from.

2. The duty is owed to persons generally. A driver owes the duty of care to every road user, not to a list of people. That is why a stranger injured on the road can sue although he had no relationship with the driver at all.

3. The right protected is a right in rem. A right in rem is available against the world at large. Your right to bodily safety, to your reputation and to the quiet enjoyment of your land binds everybody. A right in personam, available against one person only, is what a contract creates.

4. Liability is redressible by an action for unliquidated damages. The court fixes the sum. There are other remedies, injunction and specific restitution among them, and chapter [Judicial Remedies: Damages] deals with all of them, but damages is the characteristic remedy and the definitions are built on it.

5. Liability may rest on fault or may not. Most torts require intention or negligence. Some do not: the rule in Rylands v. Fletcher and the Indian rule of absolute liability make a defendant liable although he took every care. In Jay Laxmi Salt Works the Court itself grouped strict liability, absolute liability and fault liability as forms of tortious liability that have grown over time.

Three words for the kind of wrongful conduct

The older writers, and the older question papers, use three Latin-derived words for the form the defendant's conduct takes. They describe the same requirement of a legal duty from three angles.

• Malfeasance is the doing of an act which is unlawful in itself, and which the person had no right to do at all. A trespass is malfeasance.
• Misfeasance is the improper doing of an act which the person was otherwise entitled to do. A surgeon entitled to operate who operates carelessly commits misfeasance.
• Nonfeasance is the omission of an act which the person was under a duty to do. It is actionable only where the law imposed the duty to act, which is why a stranger who watches a child drown commits no tort while a lifeguard does.

The practical use of the trio is in the law of trespass: chapter [Trespass ab Initio] shows that an authority given by law is destroyed by a subsequent misfeasance but not by a nonfeasance, which is why a man who takes too much wine at an inn is a trespasser from the beginning and one who simply does not pay is not.

The scope of the law of torts

Scope means how far the subject reaches, and it is best answered by listing the interests it protects. A student who can name these five knows the shape of the whole book.

The person. Freedom from physical interference and from the fear of it: battery, assault, mayhem, false imprisonment, and negligence causing injury.

Property. Land and goods: trespass to land, trespass to goods, detinue, conversion and nuisance.

Reputation. Defamation, in its two forms of libel and slander.

Liberty and legal process. False imprisonment, malicious prosecution and the abuse of legal process.

Economic and family interests. Deceit, injurious falsehood, and the wrongs affecting personal relations.

Two further extensions are peculiar to India and both are taught later: the compensation a constitutional court awards for the violation of a fundamental right, which chapter [Constitutional Tort] deals with, and the statutory no-fault schemes under the Motor Vehicles Act 1988 and the Public Liability Insurance Act 1991, which Module IV and chapter [The Public Liability Insurance Act 1991] deal with.

A worked example

Meera parks her scooter outside a shop in Thane. Four things happen in the next ten minutes.

One. A shopkeeper, Anil, shouts an insult at her in front of a crowd, saying she is a thief. That touches her reputation: the tort is defamation, and the interest protected is her standing with other people.

Two. Anil pushes her scooter over. That touches her goods: the tort is trespass to goods, and the interest protected is her possession.

Three. Anil bolts the shop door with her inside for twenty minutes. That touches her liberty: the tort is false imprisonment.

Four. Anil telephones the police falsely accusing her of theft, and she is prosecuted and acquitted. That touches her use of the legal process: the tort is malicious prosecution.

One incident, four interests, four torts. Notice that the duty in each was fixed by law before Meera ever met Anil, that each duty was owed to anybody in Meera's position, and that in each the court would fix the damages itself. That is the nature of tortious liability, and the four different interests are its scope.

Distinctions that carry marks

What it does NOT mean

"Tortious liability is fault liability" is not true without qualification. Strict and absolute liability are both tortious, and both dispense with fault. Jay Laxmi Salt Works names all three as forms of liability in tort.

"The scope of tort is fixed" is not true. The Supreme Court said in terms that the frontiers of the subject cannot be strictly barricaded, and it proved the point in 1986 by creating absolute liability where no such rule existed.

"A tort must cause physical harm" is not true. Reputation, liberty and economic interests are protected, and in some torts no harm at all need be shown.

"A duty in tort can be excluded by a notice" is not true as a general rule. Consent may be a defence on the facts, which chapter [Volenti Non Fit Injuria] examines, but the duty itself is imposed by the law and is not a term the parties settle.

Quick revision

1. Nature: the duty is fixed by law, owed to persons generally, protects a right in rem, and is redressible by an action for unliquidated damages.
2. Jay Laxmi Salt Works (P) Ltd v. State of Gujarat, (1994) 4 SCC 1: injury and damage are the two basic ingredients; the law of torts is a developing law whose frontiers cannot be strictly barricaded; duty is the primary yardstick.
3. Liability may be fault based, strict or absolute.
4. Scope: interests in person, property, reputation, liberty and legal process, and economic and family relations.
5. India adds two extensions: constitutional compensation, and statutory no-fault schemes.
6. The three-column table of tort, contract and crime is the commonest examination question in Module I.

Test yourself

1. Explain the nature of tortious liability. Tortious liability arises from the breach of a duty primarily fixed by the law rather than by agreement. The duty is owed to persons generally and not to a determinate person, so a stranger may sue. The right it protects is a right in rem, available against the world, as against the right in personam that a contract creates. Its characteristic remedy is a civil action for unliquidated damages, that is, damages the court assesses rather than damages the parties have fixed. Liability may rest on intention or negligence, but need not: strict liability under the rule in Rylands v. Fletcher and the Indian rule of absolute liability are both tortious. The Supreme Court stated all of this in Jay Laxmi Salt Works (P) Ltd v. State of Gujarat, (1994) 4 SCC 1.

2. What is the scope of the law of torts? Its scope is measured by the interests it protects: the person, through battery, assault, mayhem, false imprisonment and negligence; property in land and goods, through trespass, nuisance, detinue and conversion; reputation, through defamation; liberty and the legal process, through false imprisonment, malicious prosecution and abuse of process; and economic and family relations, through deceit, injurious falsehood and the wrongs affecting personal relations. In India the scope also takes in compensation awarded by constitutional courts for the violation of fundamental rights, and the statutory no-fault schemes under the Motor Vehicles Act 1988 and the Public Liability Insurance Act 1991.

3. "The law of torts is a developing law." Discuss. The statement is the Supreme Court's own, in Jay Laxmi Salt Works (P) Ltd v. State of Gujarat, (1994) 4 SCC 1, where the Court held that the frontiers of the subject are incapable of being strictly barricaded and that since duty is the primary yardstick of liability, its ambit keeps widening on the touchstone of fairness and practicality. The proof in India is the creation of absolute liability in M.C. Mehta v. Union of India, AIR 1987 SC 1086, where the Court refused to be confined to a rule evolved in the nineteenth century and said that Indian courts no longer need the crutches of a foreign legal order.

4. Distinguish a right in rem from a right in personam with an example from tort. A right in rem is available against persons generally. A right in personam is available against a definite person. Tort protects rights in rem: the right not to be assaulted binds every person in the world, so a stranger who assaults you is liable although you have no relationship with him. Contract creates rights in personam: if a builder promises to build your house, only he is bound, and a stranger who fails to build it commits no wrong. The distinction explains why privity limits an action in contract and does not limit an action in tort.

5. Is fault essential to liability in tort? No. Most torts require a mental element, intention in trespass and deceit, or want of reasonable care in negligence. But the rule in Rylands v. Fletcher imposes liability for the escape of a dangerous thing brought on to land in a non-natural use, whether or not the defendant was at fault, and the rule of absolute liability laid down in M.C. Mehta v. Union of India, AIR 1987 SC 1086, makes an enterprise carrying on a hazardous activity liable even where it took every possible precaution and even where an exception to Rylands v. Fletcher would have applied. Statutory schemes go further still: section 164 of the Motor Vehicles Act 1988 and section 3 of the Public Liability Insurance Act 1991 both give compensation without any proof of wrongful act, neglect or default.