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Measure of Damages, Calculations under Torts & Contracts, Direct, Aggravated, Exemplary including Mental Tension, Torture Reputation, Opportunity Loss etc.

The field of 'Measure of Damages' in law is highly specialized. We have acquired expertise in this important branch of law. We have handled several cases where complete measure of loss and damages under torts were calculated by us. Entire pleadings for legal defence of the defendants are prepared by us. Several cases are described in this web site. We are prepared to take up assignments to calculate damages in any legal case. Please send e-mail at ramkishandrt@gmail.com giving full particulars.

We prepare damages based on facts contained in the documents. Measure of damages depends on various factors which need to be proved with due process of law. We study all the documents keeping in view the law of damages as well as law of torts. We have prepared several cases involving documents like project reports, balance sheets, annual reports, insurance claim documents, medical papers relating to accidents, equipments, plant and machineries, vehicles, aircrafts, ships, buildings, personnel etc. We have vast coverage of measure of damages. This field of Measure of Damages is highly specialized and requires vast knowledge of law of damages, law of torts and law of pleadings.

The brief notes on damages and torts are as under:-

Notes on Damages

The brief notes on damages and torts are as under:-

(Legal References and Citations will be provided to the clients only) 

¨    Para–011 – relevant causes, facts and circumstances should be ascertained by the person having proper knowledge of industry, banking and law of torts.

¨    State, degree, quality, trade, or profession of the party injured, as well as of the person who did the injury are part of the relevant and material facts.

¨    Injured party is to be provided with reparation for the wrongful act.

¨   If there be any special damage which is attributable to the wrongful act that special damage must be averred and proved.

¨  Notional restitution i.e. restitution may be by award of compensation. This is specially so when the plaintiff is compensated for non-pecuniary damage such as pain and suffering.

The measure of damages must also include the following aspects:

¨    Exemplary damages if the plaintiff is injured by the oppressive, arbitrary or unconstitutional action by the executives or the servants of the Government

¨    In determining liability when causation is in issue, it has to be established like any issue relating to past event, on the balance of probabilities.

¨    Para–012 - assessment of damages,  which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will happen or would have happened and reflect those chances, whether they are more or less even, in the amount of damages which it awards

¨   Ordinary damages are awarded where it is necessary to compensate the plaintiff fairly for the injury he has in fact sustained. These are also called compensatory damages.

¨    Whatever sum is awarded, whether large or small, must afford a measure of compensation to the plaintiff with reference to actual harm sustained by him.

¨  The law does not aim at restitution but compensation, and the true test is, what sum would afford, under the circumstances of the particular case, a fair and reasonable compensation to the party wronged for the injury done to him,

¨    The plaintiff’s own estimate being regarded as the maximum limit. The measure of reparation or damage for any injury should be assessed as nearly as possible at a sum of money which would put the injured party in the same position as he would have been in if he would not have sustained the injury

¨   When the plaintiff injury is aggravated by the conduct and motives of the defendant, e.g. when he has acted in a highhanded manner, wilfully or maliciously, the damages may be correspondingly increased. But the damages so increased or aggravated are really compensatory and fall in the category of ordinary damages

The measure of damages must also include the following aspects:

¨    Para–013 – Exemplary damages are awarded not to compensate the plaintiff but to punish the defendant and to deter him from similar conduct in future

¨    First category is oppressive, arbitrary or unconstitutional action of the Government or its servants - The Supreme Court has accepted the principle that oppressive, arbitrary or unconstitutional action of the Government or its servants calls for exemplary damages and this principle has been extended to a  government statutory authority

The measure of damages must also include the following aspects:

¨    Para–014 - General damages are those which the law will imply in every violation of a legal right. - They need not be proved by evidence for they arise by inference of law, even though no actual pecuniary loss has been, or can be, shown.

¨    Special damage - It is employed to denote that damage arising out of the special circumstances of the case which if properly pleaded, may be super-added to the general damage which the law implies in every infringement of an absolute right. - Where an actual and positive right (apart from the damage done) has been disturbed, it is the damage done that is the wrong; and the expression “ special damage,” when used of this damage, denotes the actual and temporal loss which has, in fact, occurred. Such damage is called variously “express loss,” “particular damage,” “damage in fact,” “special or particular cause of loss,”

¨    In actions brought for a public nuisance, such as the obstruction of a river or a highway, “special damage” denotes that actual and particular loss which the plaintiff must allege and prove that he has sustained beyond what is sustained by the general public, if his action is to be supported, such particular loss being, as is obvious, the cause of action.

¨   Aforesaid distinction between General Damages and Special Damages is based on the substantive law distinction between torts actionable per se and torts not actionable without actual or special damage to the plaintiff.

¨   The expression special damage in the context of pleadings, however, signifies “some special or material item of plaintiff’s loss which is not an obvious consequence of the tort committed by the plaintiff and of which, therefore, the defendant should be given notice in the pleadings

The measure of damages must also include the following aspects:

¨    Para–015 - Damages resulting from the same cause of action must be recovered at one and the same time as more than one action will not lie on the same cause of action. If a person is beaten or wounded and if he sues he must sue for all his damage, past, present and future, certain and contingent. He can not maintain an action for a broken arm, and subsequently for broken rib, though he did not know of it when he commenced his first action

¨    Damages when given are taken to embrace all the injurious consequences of the wrongful act, unknown as well as known, which may arise hereafter, as well as those which have arisen, so that the right of action is satisfied by one recovery.  A fresh action can not be brought unless there is both a new unlawful act and fresh damage

¨    If the same wrongful act violates two distinct rights, successive actions may be brought in respect of each of them. If a person sustains two injuries from a blow, one to his person, another to his property, as for instance, damage to his watch, there is no doubt that he can maintain two actions in respect of the one blow.

¨    For damage to goods and injury to the person although they have been occasioned by one and the same wrongful act, are infringements of different rights and give rise to distinct causes for action; and therefore the recovery in an action of compensation for the damage to the goods is no bar to an action subsequently commenced for the injury to  the person.

¨    An action for malicious prosecution could be brought notwithstanding the recovery of damages in a previous action for false imprisonment arising out of the same transaction because the cause of action were perfectly distinct  and different.

¨    It is necessary to distinguish between a complete cause of action which may yet produce fresh damage in the future, and a continuous cause of action from which continuous damage steadily flows. Speaking accurately, there is no such thing as a continuous cause of action; but what is called a continuous cause of action is a cause of action which arise from  the repetition of acts or omission of the same kind as that for which the action was brought If once a cause of action arises, and the acts complained of are continuously repeated, the cause of action continues and goes on de die in diem

¨    Where the cause of action is of a continuing one the damage should be assessed once for all. No fresh action can be brought for any subsequent damage that may arise from that act. Not only the damage that has accrued, but also such damage, if any, as it is reasonably certain will occur in the future, should be taken into consideration

¨    Where a wrong is not actionable in itself unless it causes damage, it will seem as the action is only maintainable in respect of the damage, or not maintainable till the damage is caused , an action will lie every time a  damage accrues from the wrongful act.

The measure of damages must also include the following aspects:

¨    Para-016 - The expanding knowledge of mind-body relationship in medical science has made the courts to recognize that severe physical damage to the human body and system identifiable as illness may be caused through the senses by impact of the physical events without any direct physical contact . Thus an anxiety neurosis or a reactive depression  may be recognizable psychiatric illness with or without psychosomatic symptoms. Illness of this character is described by the expression “nervous shock”. While damages cannot in common law be awarded for grief, distress or any other normal emotion, a claim for damages for nervous shock, in other word for a positive psychiatric illness can be made without the necessity of showing any physical injury by those who are participants in the event i.e. those who are in the actual area of danger created by the event but escape physical injury by chance or good fortune. When the plaintiff does not fall in this category or when there is no direct impact or fear of immediate personal injuries for oneself, the plaintiff has to show the necessary chain of causation in fact between his psychiatric illness and the death or injury of one or more third parties caused by the defendant’s negligent or wrongful act. The plaintiff has further to show at least in a case of negligence that the psychiatric illness considered ex post facto in the light of all that has happened was reasonably foreseeable by the reasonable man which will require existence of close relationship of love and affection with the victim of the accident and close proximity in time and space with the accident or its aftermath.

¨     The Supreme Court has, however, allowed damages for mental agony in case of harrassment of the plaintiff by the officers of a public authority

¨    The House of Lords allowed the plaintiff’s claim for damages for nervous shock because even though she was not at or near the scene of the accident at the time or shortly afterwards, the nervous shock suffered by her was a reasonably foreseeable consequence of defendant’s negligence.

¨    Plaintiff in such cases will have to show close relationship of love and affection with the primary victim and also that his proximity to the accident was sufficiently close in time and space. So plaintiffs who suffered nervous shock when disaster In a football match was televised live and in news bulletins but without depicting the sufferings or dying of recognizable individuals, were held not entitled to damages.

¨    Though directly involved in a motor accident remained unhurt but suffered a psychiatric disease with which he had earlier suffered but which was then in remission. The injury which the plaintiff suffered as a result of the accident was not foreseeable in a person of ordinary fortitude but as a personal injury of physical harm (which the plaintiff did not suffer) was foreseeable the plaintiff succeeded in recovering damages.

The measure of damages must also include the following aspects:

¨    Para-017 - (1) In cases involving nervous shock, it is essential to distinguish between primary victim and secondary victims (2) In claim by secondary victims the law insists on certain control mechanisms, in order as a matter of policy to limit the number of potential claimants. Thus the defendant will not be liable unless psychiatric injury is foreseeable in a person of normal fortitude. These control mechanisms have no place when the plaintiff is the primary victim (3) In claims by the secondary victims, it may be legitimate to use hindsight in order to be  able to apply the test of reasonable foreseeability at all. Hindsight , however, has no part to play when the plaintiff is the primary victim (4)whether the defendant can reasonably foresee that his conduct will expose the plaintiff to the risk of personal injury, whether physical or psychiatric. If the answer is yes, then the duty of care is established even though physical injury does not in fact, occur. There is no justification for regarding physical and psychiatric injury as different ‘kinds of damage’.

¨    Held that damages for nervous shock were not limited to psychiatric damage resulting from witnessing personal injury caused by defendant’s negligence but could be recovered where the plaintiff witnessed destruction of his property caused by the defendants’ negligence e.g. in starting a fire, provided that the psychiatric damage was reasonably foreseeable consequences

¨    Motor lorry in running condition and unattended, started on its own, woman at the bend, children ahead, she was informed that one of the children was injured. In consequece of her fright and anxiety she suffered a nervous shock which eventually caused her death. In an action by husband under the Fatal Accident Act, it was held that, on the assumption that the shock was caused by what the woman saw with her own eyes as distinguished from what she was told by bystanders, the plaintiff was entitled to recover, notwithstanding, that the shock was brought about by fear for her children’s safety and not by fear for her own

¨    Shock caused by apprehension of injury  // .. The Madras High Court stated that the body is controlled by its nervous system and if by reason of an acute shock to the nervous system the activities of the body are impaired and it is incapacitated from functioning normally, there is clear “ bodily injury “ and an insurance company cannot seek to evade liability for damages for such nervous shock on the strength of a clause in the policy which makes the company legally liable to pay in respect of death or “ bodily injury “ to any person. But it is only shock of such description which can be measured by direct consequences on bodily activity which can form the basis for an action in damages.

¨    Shock caused by false news – joke – falsely represented to the plaintiff that her husband met with a serious accident – broken legs – by reason of this misrepresentation, plaintiff suffered a violent nervous shock, was made seriously ill, her hair turned white, her life in great danger, had to incur expenditure on medical treatment – held defendant liable

¨   Shock caused by threats – defendants two detectives including one being assistant – plaintiff maid servant – assistant induced the plaintiff to show him the letters, endeavored to persuade the plaintiff by false statement. and threats,  as a result, plaintiff fell ill from a nervous shock. In an action by the plaintiff against the defendant for damages, it was held that the assistant was acting within the scope of his employment and that both the defendants were liable

The measure of damages must also include the following aspects:

¨    Para-018 - Shock to feelings – funeral – mourners – tramcar negligently driven by a servant of defendants, violently collided with the hearse, damaged the hearse and caused the coffins to be overturned, mourners, relatives of the dead suffered severe mental shock – held that mourners were entitled to recover damages for mental shock in an action brought by them for negligence against the defendants, although there was no apprehension, or actual sight, of injury to a human being

¨    motor cyclist negligently driving – accident – killed – pregnant wife, suffered fright resulting in severe nervous shock – held that the duty of the motor cyclist on the public road to other persons using it was to drive with such reasonable care as would avoid the risk of injury (including injury by shock although no direct impact occurred) to such persons as he could reasonably foresee might be injured by his failure to exercise that care; and that the plaintiff was not within the area of potential danger arising as the result of his negligence and accordingly, he owed no duty to her and was not guilty of negligence in relation to her.

¨    reasoning – “ the driver of a car or vehicle even though careless is entitled to assume that the ordinary frequenter of the streets has sufficient fortitude to endure such incidence as may from time to time to occur  in them, including the noise of a collision and the sight of injury to others, and is not to be considered negligent towards one who does not possess the customary apathy.

¨    Personal injury may cause (a) non-pecuniary as well as (b) pecuniary loss to the plaintiff. Non-pecuniary loss may cover the following heads of damage : (i) Pain and suffering (ii) loss of amenities and (iii) loss of expectation of life. Pecuniary loss may cover the following : (i) consequential expenses: (ii) cost of care: and (iii) loss of earnings.

¨   Presumption medical surveillance, when a person is exposed to a toxic substance, having regard to long latency period of toxic injuries, is an admissible head of compensation

¨    The earlier practice was to make a global award without indicating the sums under different heads - But the current practice is to item wise the award at least broadly

¨     But at the end, the judge should look at the total figure in the round , so as to be able to cure any overlapping or other source of error.

The measure of damages must also include the following aspects:

¨     Para-019 - For, “the separate items, which together constitute a total award of damages are inter-related. They are the parts of the whole, which must be fair and reasonable

¨     The determination of the quantum may require a test as to what contemporary society would deem to be a fair sum such as would allow the wrong doer to hold up his head among his neighbors and say with their approval that he has done the fair thing - Or, in other words what a Lok Adalat would award in a similar case.

¨    The amount awarded must be liberal and not niggardly since the law values life and limb in a free society in generous scales

¨     All this only means that the amount awarded must be fair and reasonable by accepted legal standards - And all elements requiring consideration must be viewed with objective standards

¨     Pain and suffering consequential to injury inflicted on the plaintiff is a proper head of damage for which the defendant must compensate the plaintiff. It will include pain attributable to medical treatment  for the injury. The amount of compensation will vary with the intensity of pain and suffering of the plaintiff. So, if the plaintiff after receiving the injury becomes wholly unconscious or is otherwise unable to experience the pain, he gets no compensation under this head, however serious the injury may be.

¨     Loss of amenities is a separate head of damage and covers deprivation of ordinary experiences and enjoyment of life. For example, if the plaintiff is deprived of his ability to play games which he used to play before the injury, he would be entitled to damages under this head.

¨    The important distinction between the head of pain and suffering and loss of amenities is this that the fact of unconsciousness deprives the plaintiff of any damages under the former head but not so under the latter. So, a plaintiff who is totally unconscious due to the injury will not receive any damages under this head pain and suffering but may yet receive substantial damages under the head loss of amenities

¨     The importance distinction between the head of pain and suffering and loss of amenities is this that the fact of unconsciousness deprives the plaintiff of any damages under the former head but not so under the latter. So, a plaintiff who is totally unconscious due to the injury will not receive any damages under this head pain and suffering but may yet receive substantial damages under the head loss of amenities - Speaking generally the Court awards a lump sum as damages covering both the heads

¨     Loss of expectation of life is a separate head of damage when a normal expectation of life is shortened as a result of the injury

The measure of damages must also include the following aspects:

¨     Para-020 - Medical evidence is generally required to prove this though caution is necessary before accepting the evidence of medical men as such evidence is necessarily speculative. Damages under this head are assessed by putting a money value on the prospective balance of happiness in the years that the injured might have otherwise lived and having regard to the uncertainties of life and difficulties in assessment very moderate sums are awarded - It may be mentioned here that suffering experienced by the plaintiff from the awareness that his life expectancy has been shortened will fall under the head “ pain and suffering “ and not under the head “loss of expectation of life” Quantification of damages for non-pecuniary damage such as pain and sufferings and loss of amenities presents great difficulties. The Court can not restore a person to the state of health which he enjoyed before he suffered a serious injury to his body or brain. The Court can award only reasonable compensation to the plaintiff for his sufferings and assessment of which is essentially a guess work. To bring about a degree of uniformity and predictability, the courts have evolved certain rules The task of assessment of damages for non-pecuniary damage in personal injury actions is a difficult one, for human suffering resulting from any serious bodily injury cannot from its very nature be valued in terms of money having regard to the injury and the damage resulting from it. In the process of application, the wide discretion that the courts exercise in making awards of compensation, like any other judicial discretion, has channelized itself into set of rules. These rules are (1) The amount of compensation awarded must be reasonable and must be assessed with moderation; (2) Regard must be had to awards made in comparable cases, and (3) The sums awarded must to a considerable extent be conventional. It is only by adherence to these self imposed rules that the courts can decide like cases in like manner and bring about a measure of predictability of their awards. These considerations are of great importance if administration of justice in this field is to command the respect of the community. “

¨     Referring to non-economic loss in personal injury actions, the House of Lords in the same context observed : “ Such loss is not susceptible of measurement in money. Any figure at which the assessor of damage arrives cannot be other than artificial and, if the aim is that justice meted out to all litigants should be even-handed instead of depending on idiosyncrasies of the assessor, whether jury or judge, the figure must be basically a conventional figure derived from experience and from awards in comparable cases

¨    Before cases can be used as comparable cases, they must bear a reasonable measure of similarity, “ it is necessary to ensure that in main essentials, the facts of one case must bear comparison with the facts of another before any comparison between the awards in the respective cases can fairly or profitably be made

¨     Further, in taking assistance from earlier awards, the Courts should remain conscious of the fall in the value of currency . Indeed the conventional sums awarded for pain, suffering and loss of amenities should be periodically reassessed to keep pace with inflation so that they do not lose contact with reality and may serve as guide in other cases for similar injuries

The measure of damages must also include the following aspects:

¨     Para-021 -  The House of Lords observed that an award for pain, suffering and loss of amenities was dependent on a most general way on the movement of money values and though in times of inflation there will be tendency for conventional awards to increase, the requirement of law will met if the sum awarded is a substantial sum in the context of current money values.

¨     As regards, an award for loss of expectation of life, there is comparatively much less scope for increase with the decrease in money value; an increase, if at all, will be justified  only to prevent the conventional becoming the contemptible

¨     It has also been held that award of general damages for pain and suffering is not related to the status of the plaintiff and sufferings of a rich man is not more acute than the pain and suffering of a poor riff-raff.

¨    The plaintiff is obviously entitled to the expenses consequential to the injury. This item will include expenses for taking to hospital, medicines, treatment, fees, cost of care, - serious injuries make person invalid for years and even for life – cost of future care

¨     Plaintiff can recover value of nursing by wife, parents and relatives

¨     Damages are awarded in such cases on the principle that the plaintiff’s  loss is the existence of the need for those services. – fair and reasonable cost of supplying those need – If provider of such services gave up paid work or otherwise incurred loss of earnings and also underwent incidental expenses to look after him, the plaintiff can recover as a special damage a specified amount upto the date of trial which is equivalent to the loss of third party – proper and reasonable cost of supplying those needs – past and future financial value of the voluntary service

¨     Injured plaintiff can recover the reasonable value of gratuitous services rendered to him by way of voluntary care by a member of his family - Loss of earnings constitute an important pecuniary loss for which damages are allowed. There are two fundamental principles in assessing damages for loss of earnings. - The first principle is that damages are compensatory and intended, so far as money can, to put the plaintiff in the same financial position as if the accident had never happened. - The second principle is that it is no concern of the tort-feasor how the injured plaintiff chooses to dispose his earnings .

¨     As an application of the first principle, damages for loss of earnings are to be assessed at the net sum that would be available to the plaintiff after discharging his liability for tax rather than his gross earnings before deduction of tax.

The measure of damages must also include the following aspects:

¨    Para-022 - Damages for future loss of earnings, if it is likely to continue for a number of years or for the entire working life of the plaintiff, are assessed by the multiplicand multiplier method

¨     multiplicand is selected by estimating yearly loss of income after making allowance for expenses, if any, including taxes, required for earning the same

¨     selection of multiplier takes into account the accelerated receipt of  the entire amount in a lump sum and vicissitudes of life - multiplier is, therefore, much less than the estimated period of future loss of earnings. When life expectancy of the plaintiff stands reduced as a consequence of the injury, he is entitled to claim compensation for loss of earnings of the lost years i.e. for the years he would have lived had he not suffered the injury - But in case of children of tender years, the assessment being highly speculative, damage for loss of earnings for lost years will not be allowed

¨     But as the plaintiff is not expected to live during the lost years, in selecting the multiplicand for this period, allowance must be made for the living expenses of the plaintiff by deducing the same from the estimated yearly income.

¨     This allowance or deduction will be in addition to the allowance or deduction made for the expenses, if any, required for making yearly income. When a plaintiff is incapacitated but without affecting his life expectancy and is allowed both, cost of care and loss of earnings, his living expenses would be deducted from cost of care to avoid duplication

¨     Cost of care is not allowed for lost years and hence there is no question of duplication when damages for loss of earnings are allowed for lost years, but as already seen, in assessing these damages, living expenses are deducted as the plaintiff is not expected to live during these years

¨     Damages are assessed with reference to the value of the currency on the date of the judgment and no notice is taken of future inflation

¨     But the selection of the number of years of purchase that is the multiplier is on the basis that the amount allowed as damages will be invested at the interest rate of 4 to 5 per cent and yearly interest supplemented by drawing on capital will yield the annual loss of income for  the entire period for which loss of earnings are allowed and after the end of that period will stand exhausted. If it were assumed that the amount allowed as damages will be invested at the current rate of interest, the multiplier would be much less than what is usually allowed and so will consequently be the damages. The selection of the multiplier with reference to interest rate of 4 to 5 per cent thus covers the contingency of future inflation or fall in money value The date of trial is the appropriate date on which to determine (a) the actual loss of earnings upto that date and (b) the future loss of earnings based on a multiplicand and multiplier and ascertained from the facts as they are at that date - In fatal accident cases multiplier is selected with reference to the date of death

The measure of damages must also include the following aspects:

¨     Para-023 - Normally the Courts adopt a multiplier of 15 or 16 treating 18 as the maximum

¨     A conventional multiplier selected with reference to interest rate of 4 to 5 percent is not to be further increased to allow for higher tax payable on income from large award and it should be assumed that the multiplier so selected will take care of not only future inflation but future incidence of taxation

¨     Further a conventional multiplier selected by the trial court should not be lightly interfered with by the appellate court by reference to actual calculation

¨     Damages for loss of earnings are also allowed to incapacitated children who at the time of the accident had not yet started to earn.

¨     In assessing damages for loss of earning capacity, that is to say, damages which are intended to compensate the plaintiff for his handicap in the labour market resulting from his injury, the award is necessarily speculative but there is no such thing as a conventional approach

¨     In each case the court has to do its best to assess the plaintiff's  handicap as an existing disability, by reference to what may happen in the future. In this case the plaintiff suffered a fracture of the ankle joint. The employer of his gave him the old job of driving heavy vehicles. The medical opinion was that the plaintiff will have to give up the job after 5-10 years. The plaintiff was awarded 5 years' salary as damages for loss of earning capacity.

¨     In England as also in India, interest is allowed on damages awarded. In England interest on non-pecuniary loss is allowed at the conventional rate of 2% from the date of writ to the date of judgment

¨     Interest is also allowed on pretrial pecuniary loss but no interest is allowed on future pecuniary loss

¨     In India, the practice is to allow interest from the date of suit or claim application.

¨     In a fatal accident case, interest was allowed on the total award, as finally increased in appeal, from the date of the claim application at the rate of 12%.

¨     The current practice in India seems to be to allow interest at the rate of 9 to 12% from the date of application on the amount of compensation finally awarded - But the Karnataka High Court prefers a rate of 6% on the amount awarded from the date of claim application

The measure of damages must also include the following aspects:

¨     Para-024 If a chattel be lost or destroyed by a wrongful act of the defendant, the measure of damage is the value of the chattel, but if the chattel be only injured, then the depreciating in its value is the measure, with an extra allowance for the loss of the use of the chattel while it is being repaired or replaced.

¨     A person to whom a wrong is done is entitled to full compensation for restoring the thing damaged to its original condition. This applies equally to a private person as to a Corporation or trustee. It this is called restitution, a Corporation as well as private person would be entitled to it, if by restitution is meant complete reconstruction irrespective of the damage done, then neither a private person nor a Corporation or a trustee is entitled to complete reconstruction irrespective of the damage done

¨     It has been further held that when a plaintiff is permanently deprived of his goods by deceipt of the defendant, the measure of damage is the same as in conversion viz. the full market value of the goods and not the cost of replacing or producing them which may be less than the market value

¨     The weight of authority, however, now seems to be that the plaintiff is entitled to damages also for loss of use of his chattel.

¨     The basic principle governing the measure of damages for damage to property in tort as well as in contract is restitutio in integram. But the application of this principle works differently in different circumstances. Whether the assessment of damages should be on the basis of dimunition in value or the cost of reinstatement or some other basis depends on the facts of each case. The question to be considered is: what is reasonable and fair under the circumstances to put the plaintiff so far as the money can, in the same position as he would have held had the tort not occurred.

¨     So when income earning premises such as a factory are seriously damaged or destroyed beyond repair, the plaintiff may be awarded the cost of reconstruction or acquisition of new premises, including cost of replacing the destroyed machinery by new machinery, if that is the only way for the plaintiff to carry on the business and to mitigate the loss of profit.

¨     It would not be open for the defendant that the plaintiff to complain that the plaintiff is being given new for the old.

¨     In India, there are no corresponding statute or statutory rules for interim damages. The High Court of Madhya Pradesh has, however, held that interim payment can be applied as principles of justice, equity and good conscience.

¨     It was on this basis that the High Court allowed interim payment of Rs 250 crores in a suit on behalf of Bhopal gas victims and their dependents against the Union Carbide Corporation.

The measure of damages must also include the following aspects:

¨     Para-025 - The measure of damages or test by which the amount of damages is to be ascertained is, in general, the same both in contract and in tort, with these distinctions :- (1) The intention with which a contract is broken is perfectly immaterial whereas the intention with which a tort is committed may fairly be considered by the Court in assessing the amount of damages. In actions of contract, evidence of malicious motive is not admissible, in those of tort, it is. Thus, in an action for throwing poisoned barley upon the plaintiff's premises in order to poison the poultry, the Court took into account the malicious intention of the defendant in awarding damages. In case of contract, damages are only compensation: of tort to the property, they are generally the same. Injuries to the property are only visited with damages proportional in the actual pecuniary loss sustained, where damage, pecuniary or estimable in money, is the gist of action. But when absolute rights are infringed, a plaintiff is awarded nominal damages not because he has lost anything but because his rights are absolute. Where the injury is to the person, or feelings, and the facts disclose fraud, malice, violence, cruelty, or insult the injury is aggravated and the plaintiff gets aggravated damages but they bear no proportion to the actual loss sustained by the plaintiff. Exemplary damages are also allowed in a tort action against the state or its officers when the action complained of is oppressive, arbitrary or unconstitutional. But exemplary damages cannot be recovered for a breach of contract, except in an action for breach of promise of marriage.

¨     All persons who aid, or counsel, or direct or join in the committal of wrongful act, are joint tort-feasors.

¨     Every man has a right to have his reputation preserved inviolate. The right of reputation is acknowledged as an inherent general right of every person. It is a jus in rem, a right good against all the world. A man's reputation is his property, more valuable than other property.

¨     Good name is rather to be chosen than great riches – degree of suffering occasioned by loss of character and compare it with that occasioned by loss of property, the amount of former injury far exceeds that of the latter

The measure of damages must also include the following aspects:

¨     Para-026 - Law of defamation like many other branches of law of torts provides for balancing of interests. – competing interest, interest in reputation and freedom of speech.- wrong of defamation protects reputation and defence to the wrong i.e. truth and privilege protect the freedom of speech. Many people in England feel that the present law of defamation gives too much protection to reputation and imposes too great a restriction on the freedom of speech.

¨     The wrong of defamation may be committed by way of either by way of writing or its equivalent , or by way of speech. – term 'libel' is used for former and 'Slander' for the latter

¨     A learned judge of MP High Court holds that there may be a hybrid type of defamation not falling within the recognized categories of libel and slander. In that case it was held that the bridegroom and his father in refusing to take the bride to their home after marriage in full gaze of the guests committed the tort of defamation and damage could be awarded for loss of reputation.

¨     Malicious prosecution  is malicious institution against another of unsuccessful criminal, bankruptcy or liquidation proceedings without reasonable or probable cause. This tort balances two competing principles, namely the freedom that every person should have in bringing criminals to justice and the need for restraining false accusation against innocent persons.

¨     The foundation of the action lies in abuse of the process of the Court by wrongfully setting the law in motion and it is designed to discourage the perversion of the machinery of justice for an improper purpose.

¨     In an action for malicious prosecution plaintiff must prove: (1) That he was prosecuted by the defendant, (2) proceedings complained of terminated in favour of plaintiff if from their nature they were capable of so terminating, (3) prosecution was instituted against him without any reasonable or probable cause, (4) prosecution was instituted with a malicious intention, that is, not with the mere intention of carrying the law into effect, but with an intention which was wrongful in point of fact, (5) he has suffered damage to his reputation or to the safety of person, or to the security of his property

¨     An action will not lie for maliciously and without reasonable and probable cause instituting an ordinary suit.

¨     To put into force the process of law maliciously and without any reasonable and probable cause is wrongful; and, if thereby another is prejudiced in property or person, there is that conjunction of injury and loss for which an action will lie.

¨     The tort of malicious legal process differs from malicious prosecution in that the legal process taken against a plaintiff is short of prosecution, i.e. when a process is obtained for arrest of the plaintiff or for attachment of his property.

The measure of damages must also include the following aspects:

¨     Para-027 - Ingredients to be proved are same as in malicious prosecution except that damage to person or property must be established.

¨     Though the limits of the tort of misfeasance in public office have been considered only a few English cases, there is no doubt that the tort is well established.

¨     The tort will also be committed, in the absence of malice, if the public officer knew both that what he was doing was invalid and that it will injure the plaintiff.

¨     The tort is capable of being committed by a corporate body e.g. a city council

¨     The act complained of must be one  which the officer or authority was clothed

¨     But it is not necessary that the power exercised must have a statutory origin and a malicious exercise of a power under a contract may give rise to the tort; the reason being that whatever may be the source of power, a public officer or authority must act in public good and the essence of the tort is that some one holding public office has mis-conducted himself by purporting to exercise powers, which were conferred on him for the benefit of the public, either with intent to injure another or with the knowledge that he was acting ultra vires.

¨     The legal propositions set out above were not dissented by the House of Lords - though the Court of Appeal's decision in  Swansea City Council's case was overruled on facts. Indeed the House of Lords approved that a local authority can be sued for misfeasance in a public office even when it is exercising it power under a contract

¨     The tort of misfeasance in public office has been accepted by the Supreme Court and it has been held that when an officer of the government or a public authority acts maliciously or oppressively causing harassment and agony to the plaintiff, the officer is personally liable for payment of compensation.

¨     It has been reiterated that a Government officer may be held liable in tort; if in the discharge of his official administrative duties, he acts maliciously or with oblique motive or mala fide. The Supreme Court  in a public interest petition under  Article 32 of the Constitution set aside the allotment of petrol pumps to fifteen persons made by a central minister from the discretionary quota on the ground that the discretion was mala fide exercised.  Supreme Court further issued notice to the minister to show cause why he should not be held personally liable to pay damages for his mala fide action on the ground that his action amounted to the tort of misfeasance in public office. Elaborating the nature and ambit of this tort the Court observed; " public servants may be liable in damages for malicious, deliberate or injurious wrong doing. According to Wade ' there is thus a tort which has been called misfeasance in public office and which includes malacious abuse of power, deliberate maladministration and perhaps also other unlawful acts causing injury. With the change in socio-economic outlook, the public servants are being entrusted with more and more discretionary powers even in the field of distribution of government wealth in various forms. We take it to be perfectly clear, that if a public servant abuses his office either an act of omission or commission and the consequences of that is injury to an individual or loss of public property, an action may be maintained against such public servant. No public servant can say that ' you may set aside an order on the ground of mala fide but you cannot hold me personally liable'. No public servant can arrogate to himself the power to act in a manner which is arbitrary ".

The measure of damages must also include the following aspects:

¨     Para-028 -The Court has also elaborated as to what is 'Government Wealth'. According to the Court it will include " allotment of plots, houses, petrol pumps, gas agencies, mineral lease contracts, quotas and licenses etc."

¨     After cause was shown by the minister, he was ordered to pay Rs 50 lacs as exemplary damages to the Government exchequer on the following reasoning: Since the property with which the Minister was dealing was public property, the Government which is by the people has to be compensated.

¨     The Supreme Court held that exemplary damages can be awarded fo oppressive, arbitrary and unconstitutional action by the servants of the Government

¨     In another case where another central minister was found to have arbitrarily allotted 52 shops/stalls similar view was taken. She was found guilty of misfeasance in public office and was asked to show cause why exemplary damages be not awarded against her. The Court was conscious that in cases where damages were allowed in tort for misfeasance in office there was injury to third party who sued for damages but the Court  observed: "The fact that there is no injury to a third person in the present case is not enough to make the aforesaid principles nonapplicable in as much as there was injury to the high principle in public law that a public functionary has to use the power for bona fide purpose and in a transparent manner. After cause was shown, the minister was directed to pay sixty lacs as exemplary damages to the Government Exchequer  on the same reasoning as in the earlier case that since the property with which she was dealing was public property, the Government which is by the people has to be compensated.

¨     The right of action for the injury against the wrong-doer vests in the person injured

The measure of damages must also include the following aspects:

¨     Para-029 - It is a violation of a legal right to interfere with contractual relations recognized by law if there be no sufficient justification for interference.

¨     Interference with the performance of a contract is an actionable wrong unless there be justification for interfering with the legal right

¨     The tort of intimidation means that when A threatens to do some unlawful act intentionally causing B to do or refrain from doing some act resulting in damage to himself or to a third person C, A is liable to pay damages in an action by B or C as the case may be . The threat by A must relate to the doing of some unlawful act.

¨     A conspiracy is an unlawful combination of two or more persons to do that which is contrary to law, or to do that which is harmful towards another person or to carry out an object not in itself unlawful by unlawful means

¨     It may consist in the agreement of two or more to do an unlawful act or to do a lawful act by unlawful means

¨     In such a proceeding it is necessary for the plaintiff to prove a design, common to the defendant and to others, to damage the plaintiff, without just cause of excuse

¨     But what is more important, it may also consist in the agreement of two or more persons to do some act, not in itself unlawful if done by one person alone, with the predominant purpose of causing harm to another

¨     In other words if there is a combination of persons whose purpose is to harm another person, for example, by causing him economic loss, this purpose itself renders unlawful in civil law acts which would otherwise be lawful.

¨     English law – A combination may make oppressive or dangerous that which if it proceeded only from a single person should be otherwise.- In India, the SC, however, proceeded to apply the English law and accepted the definition of conspiracy as given in Salmond (15th edition p. 513) "a combination willfully to do an act causing damage to a man in his trade or other interests is unlawful if damage in fact is caused is actionable as a conspiracy"

¨     The tort of conspiracy necessarily involves adherence to  and affirmation of the object of the combination being infliction of damage or destruction on the plaintiff

¨     Even when there are mixed motives, liability will depend on ascertaining which is the predominent object or the true motive or the real purpose of the defendant

¨     Briefly stated the tort of conspiracy can be divided into two classes (1) Where the dominant purpose is to injure the third party though the means employed are not themselves unlawful (2) Where the means employed are by themselves unlawful // Details in further pages

The measure of damages must also include the following aspects:

¨     Para-030 - Tort affecting immovable property are either by disturbance or usurpation of the right to hold or possess it, whether such disturbance or usurpation be present or in expectation (e.g. trespass, dispossession)  or by actual physical damage to the property (e.g. waste) or by interference with, or impairing of, the enjoyment of It (i.e. nuisance)

¨     Trespass in its widest sense, signifies any transgression or offence against the law of nature, of society, or of the country, whether relating to a man's person or to his property

¨     Once a matter becomes a matter of public records, including court records, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others to decency in respect of females and possibly also to what may be necessary for protection of children

¨     Trespass to goods is an unlawful disturbance of possession of the goods by seizure of removal or by a direct act causing damage to the goods

¨     A trespass to goods is actionable per se without any proof of actual damage

¨     It seems now that having regard to the recent cases dealing with trespass to person which require that intention or negligence must be proved by the plaintiff, the same view is likely to be taken in actions for trespass to goods

¨     The wrongful attachment by itself amounts to trespass to goods and is actionable. The gist of the action is the wrongful attachment and the plaintiff whose property is wrongfully attached before judgement is entitled to damages even though he has failed to prove special damage

¨     Improper obtaining of injunction which restrains the plaintiff to exercise his lawful rights over his goods may amount to trespass even without proof of malice or want of reasonable or probable cause

The measure of damages must also include the following aspects:

¨     Para-031 - Negligence is the breach of a duty caused by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.

¨     Actionable negligence consist in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill by which neglect the plaintiff has suffered injury in his person or property

¨     According to Winfield, " negligence as a tort is the breach of legal duty to take care which results in damage, undesired by the defendant to the plaintiff."

Notes on Torts

The law of Torts is part of the common law,

" It has also  been  held that section 9 of the  Code of Civil  Procedure, which enables a Civil Court  to try all suits of a civil nature , impliedly confers jurisdiction to apply the law of Torts as principles of justice, equity and good conscience. " - Union Carbide Corporation v Union of India, 1988 MPLJ 540.

      As  stated  by  Lord  Scarman: "  The  common  law,   which   in  a  constitutional  context  means  judicially  developed equity, covers everything  which is not  covered by   statutes  - - - the function of the  court is  to  decide the  case  before   it,  even  though the decision may require the extension or adaptation  of  a  principle  or  in  some  cases  the  creation  of a new  law  to  meet  the  justice  of    the  case, - -   " - Macloughlin v. O'Brian, (1982) All ER 298 (310) (H.L) This is a good basis for the application of the law of torts. 

Our  Supreme  Court  in respect of law of torts has  said   - - -  if an occasion arises the       Court can be more progressive than the English Courts in respect of law of torts and can evolve new principle of tort liability not yet accepted by the English  law. In the words of  Bhagwati C.J.  " We have to evolve new principles and lay down new norms which will adequately deal with new problems which arise in a highly industrialised economy. We can not  allow our judicial thinking to be  constricted  by  reference  to  the law as it  prevails in England or for the     matter of that  in  any  foreign country. We are certainly prepared to receive     light  from   whatever   source   it   comes  but  we  have  to  build  our  own     jurisprudence. whatever   source   it   comes  but  we  have  to  build  our  own     jurisprudence. " Hence we are fully justified in applying law of torts in banking and industrial finance.

More recently concerning law of torts, the Supreme Court Judge, Sahai J. observed: " Truly speaking entire law of torts is founded and structured on morality that no one has a right to injure or harm  other  intentionally  or even innocently. Therefore it would be     premitive  to  class  strictly  or close finally the ever-expanding and growing     horizon of tortuous liability.  Even  for social development, orderly growth of     the society and cultural refineness the liberal approach to tortuous liability by courts is  more  conductive." 

//- - --  The  word  ' tort '  is  derived  from  the Latin term tortem to twist and       implies  conduct  which  is  twisted  or  tortious. It now means a breach of some duty independent  of  contract  giving  rise to a civil cause of action and for which compensation is recoverable.  - - -  workable  definition  in  general  terms, a tort  may  be  defined  as a civil wrong independent of contract for which the appropriate remedy is an action for unliquidated damages.

      A tort is a species of civil injury or wrong. - - - no civil injury is to be classed as a tort unless the appropriate remedy for it is an action for damages. It is usual to say that a person is liable in tort irrespective of whether or not a judgment for damages has been given against him. He is liable from the moment he commits the tort.

The Law of Torts governs actions for damages for injuries to certain kinds of rights, like the rights to personal security, property and reputation. ‘ tort ‘  derived from a French word meaning in its etymological sense, a “ twisting out “ and in a popular sense, a crooked act, a transgression from straight or right conduct, a wrong. In this generic sense it (i.e. torts) was introduced into the terminology of English law by the French-speaking lawyers and judges of the courts of the Norman and Angevin Kings of England. Most of the technical terms of English Law are French in origin, - - - usual to speak – ‘ Actions in Contract ‘ and ‘ Actions in Tort ‘ Dr. Winfield has made a critical examination of many possible or current definitions of law of torts and the one suggested by him is as follows; “ Tortious liability arises from the breach of a duty primarily fixed by the law; such duty is towards persons generally and its breach is redressible by an action for unliquidated damages. The early common law was primarily concerned with remedies and not with rights and duties. The damages which a plaintiff has  a right to recover in an action for a tort belong to the category known as ‘ unliquidated damages ‘ This phrase is in law of torts applies to cases where a plaintiff claims not a predetermined and inelastic sum but such an amount as the court in its discretion is at liberty to award, though in his pleading, he may specify a particular amount. The phrase ‘ liquidated damages ‘ refers to a sum which has been predetermined by contract or statute.- -- Damages are usually intended to be a pecuniary compensation for the injury; they are then called substantial damages. They may be awarded with a view to  punish the defendant ; they are then called exemplary, punitive or vindictive damages.

     Tort, as we have seen, aims principally at the prevention or compensation of harm whereas the “ core “ of contract is the idea of forcing certain promises. - - - mere failure to  act will not be actionable in tort. - - - legally binding - - - damages can not be claimed in tort for a “ loss of expectation “ as opposed to  “ out of pocket “ losses, or, as it is sometimes expressed, damages in contract put the plaintiff in the position he would have been in had the contract been performed, whereas damages in tort put him in the position he would have been in had the tort not been committed. - - - plaintiff having the benefit of whichever is more favourable to him on the particular facts.  - - primary duty – for breach of which tortious liability is imposed. The breach of such a duty gives rise to a remedial duty, i.e. a duty to make redress, and this is always owed to a specific person or persons whatever the source of the liability.

The measure of damages must also include the following aspects:

2.     The  person committing  a  tort or wrong is  called  a tort-feasor or wrong doer, and his misdoing is a tortious act. The principal   aim   of  the   law  of  torts   is   compensation   of  victims   or  their dependants.  Grant  of  exemplary  damages  in certain cases will show that deterrent of wrong-doers is also another aim of the law of torts. // distinction between a Contract and a Tort  --- A  contract  is  founded upon consent : a tort  is  inflicted   against  or  without  consent,  A  contract necessitates privity between the parties to it : in tort no privity is needed. A tort is a violation of a right in rem i.e. of a right vested in some determinate person, either personally or as a member of the community, and available against the world at large; whereas a breach of contract is an infringement of a right in personam, i.e. of a right available only against some determinate person or body, and in which the community at large has no concern. The distinction between the two i.e. law of torts and law of contracts lies in the nature of the duty that is violated. In the case of a tort the duty is one imposed by the law and is owed to the community at large. In the case of contract, the duty is fixed by the will and consent of the parties, and it is owed to a definite person or persons.- - - Secondly, in a breach of contract, the motive for the breach is immaterial; in a tort, it is often taken into consideration. Thirdly, in a breach of contract, damages are only a compensation. In an action for tort to the property, they are generally the same. But where the injury is to the person, character, or feelings, and the facts disclose improper motive or conduct such as fraud, malice, violence, cruelty, or the like which aggravate the plaintiff’s injury. He may be awarded aggravated damages in the law of torts. Exemplary damages to punish the defendant and to deter him in future can also be awarded in certain cases in tort but rarely in  contract. Another distinction is that the law of torts is aimed at allocation or prevention of losses whereas the law of contract aims to see that promises made under a contract are performed. Same act may amount to a tort and a breach of contract. e.g. father employing  a surgeon to treat his injury.  There may be concurrent contractual and tortious duties owed to the same plaintiff who has a choice of proceeding either in tort or contract except when he must rely on a specific term of the contract as distinct from any duty of reasonable care implicit in the particular relationship brought about by the contract in  which case he has to depend exclusively on his contractual claim. Lord Bridge in the context of an auditor observed: In advising the client who employs him the professional man owes a duty to exercise that standard of skill and care appropriate to his professional status and will be liable both in contract and in tort for all losses which his client may suffer by reason of any breach of that duty.

The law of torts is fashioned as “ an instrument for making people adhere to standards of reasonable behaviour and respect the rights and interests of one another. – violation of protected interests of a person – remedy by  giving him compensation – By  “ interest “ here is meant “ a claim, want or desire of a human being or group of human beings which the  human being or group of human beings seek to satisfy, and of which therefore , the ordering of human relations in civilized society must take account.  “ – A protected interest gives rise to a legal right which in turn gives rise to a corresponding legal duty. Some legal rights are absolute in the sense that mere violation of them leads to the presumption of damage. – An act which infringes a legal right is a wrongful act. – To constitute a tort or civil injury (1) there must be a wrongful act committed by a person (2) the wrongful act must give rise to legal damage or actual damage and (3) the wrongful act must be of such a nature as to give rise to a legal remedy in the form of an action for damages. – The crucial test of legally wrongful act or omission is its prejudicial effect on the legal right of another.- ‘legal right ‘ defined by Austin as a ‘ faculty ‘ which resides in a determinate party or parties by virtue of a given law, and which avails against a party (or parties or answer to a duty lying on a party or parties) other than the party or parties in whom it resides. Rights available against the world at large are numerous. – sub-divided into private rights and public rights. Private   rights   include   all  rights  which belong  to  a  particular  person  to the exclusion of the world at large. These rights are  " (1 ) rights of reputation; (2) rights of bodily safety and freedom; (3) rights  of  property  - - -  these  three  rights  will  be found to embrace all the personal  rights  that  are known to the law " .// To  every right there corresponds an obligation or duty. If the right is legal, so   is   the   obligation.  - - - A  right  in  its  main  aspect  consists  in  doing something, or receiving and accepting something. So an obligation consists in performing some act or in refraining from performing an act. - - - The duty with which the law of tort is concerned is the duty to abstain from wilful injury, to respect the property of  others, and to use due diligence to avoid causing harm to others. // Liability for a tort, therefore, arises  when the wrongful act complained of amounts  either  to  an  infringement  of  a legal private right or a breach or violation of a legal duty. – ‘ Damage ‘ means the harm or loss suffered or presumed to be suffered by a person as a result of some wrongful act of another. The sum of money awarded by the court is called “ damages” // From the  point of view of presumption of damage, rights are classified into (1) absolute and (2) qualified. When an absolute right is violated the law conclusively presumes damage although the person wronged may have suffered no pecuniary loss whatsoever. The damage so presumed is called legal damage. In case of qualified right, the injury or wrong is not complete unless the violation of the right results in actual or special damage. – The real significance of legal damage is illustrated by two maxim namely injuria sine damno and damnum sine (or absque) injuria. – damnum is meant damage in the substantial sense of money, loss of comfort, service, health or the like. – injuria is meant a tortious act; - Any unauthorised interference , however, trivial, with some absolute right conferred by law on Qualified person, is an injury. – injuria sine damno, i.e. the infringement of an absolute private right without any actual loss or damage,  the person whose right is infringed has a cause of action. Every person has an absolute right to his property, to the immunity of his person, and to his liberty, and an infringement of this right is actionable per se. In this case law presumes damage because certain acts are so likely to result in harm owing to their mischievous tendency that the law prohibits them absolutely – damage need not be proved. Whenever a person has sustained what the law calls an ‘injury’ and in this case he may bring an action without being under the necessity of proving special damage because the injury itself has taken to imply damage. A violation of a legal right committed knowingly gives rise to a cause of action -

The measure of damages must also include the following aspects:

      If there is merely a threat of infringement of a legal right without the injury being complete the person whose right has been threatened can bring a suit under the povisions ot the Specific Relief Act for declaration and injunction. damnum sine injuria i.e. actual and substantial loss without infringement of any legal right, no action lies. – When an act is lawful or legally done, without negligence, and in the exercise of a legal right, such damage as comes to another thereby is damage without injury. Actual damage is the gist of action in (2) menace (4) slander (except in four cases) (5) deceipt (6) conspiracy or confederation (8) distress damage feasant (9) negligence (10) nuisance consisting of damages to property. // A tort is a civil injury, but all civil injuries are not torts. The wrongful act must come under the category of wrongs for which the remedy is a civil action for damages. The essential remedy for tort is an action for damages. // The law of torts is said to be a development of the maxim  ubi jus ibi remedium (there is no wrong without a remedy) – if all the remedies for enforcing a right are gone, the right from practical point of view ceased to exist.

    Judges are cautious in making innovations and they seldom proclaim their creative role. Normally a new principle is judicially accepted to accommodate new ideas of social welfare or public policy only after they have gained their recognition in the society. The general principles behind the tort of negligence is that ‘ you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.

The measure of damages must also include the following aspects:

     To constitute a tort there must be a wrongful act.. The word “act” in this context is used in a wide sense to include both positive and negatice acts i.e. acts and omissions.- difference – Failure to do something in doing an act is not an omission but a bad way of performing the act. – An omission is failure to do an act as a whole.              // Generally speaking the law does not impose liability for mere omissions. An omission incurs liability when there is a duty to act. – drowning child, stranger and parent – actionable omission

    A voluntary act may be distinguished from the other by dividing into (1) a willed muscular contraction (2) its circumstances and (3) its consequences. An act is wrongful because of the circumstances in which it is performed and the consequences which it produces. For instance, to crook the forefinger with a certain force is the same act whether the trigger of a pistol is next to it or not. It is only the surrounding circumstances of a pistol loaded and cocked, and of a human being in such relation to as to be manifestly likely to be hit that make the act a wrong. – involuntary acts are those where the actor lacks the power to control his actions and involuntary omissions are those where the actor’s lack of power to control his actions renders him unable to do the  act required. An involuntary act does not give rise to any liability. – necessity is a plausible defence.

The measure of damages must also include the following aspects:

Even a voluntary act, except in those cases where the liability is strict , is not enough to fasten liability and it has to be accompanied with requisite mental element i.e. malice, intention, negligence or motive to make it an actionable tort assuming that other necessary ingredients of the tort are present.- Malice in the popular sense means spite or ill-will. But in law malice has two distinct meanings : (1) Intentional doing of a wrongful act and (2) Improper motive – Malice in the first sense was described by Bayley J. in the following words : “ Malice in common acceptation means ill-will against a person, but in its legal sense it means a wrongful act, done intentionally, without just cause or excuse. If I give a stranger a perfect blow likely to produce death, I do it out of malice, because I do it intentionally and without just cause or excuse. – A wrongful act,  done knowingly and with a view to its injurious consequences, may be called malicious. But such malice derives its essential character from the circumstances that the act is intentionally done and constitutes a violation of the law. – malice in the first sense is also known as  “ malice in law “ which means an act done wrongfully and without reasonable and probable cause and not as in common parlance an act dictated by angry feeling or vindicative motive. “ Malice in law  “ is “ implied malice “ when from the circumstances of the case, the law will infer malice. Malice in second sense is sometimes known as “ express malice “, “ actual malice “ or “ malice in fact “  Malice in this sense i.e. improper motive is for example relevant in the tort of malicious prosecution. Intention, Negligence and Recklessness – Intention is an internal fact, something which passes in the mind and direct evidence of which is not available. - an act is intentional as to its consequences – Recklessness is sometimes called  “ Gross negligence ” Motive– is the ulterior object or purpose of doing an act. – differs from intention in two ways. First, intention relates to the immediate objectives of an act, whereas motive refers to the ulterior objective. Secondly motive refers to some personal benefit or satisfaction which the actor desires whereas intention need not be so related to te actor. – motive is generally irrelevent in tort. – The exceptional cases where motive is relevant as an ingredient are torts of malicious prosecution, malicious abuse of process and malacious falsehood. Motive is also relevant in the torts of defamation, nuisance and conspiracy. In some cases there may be a plurality of purposes and it may become necessary to decide as to what is the predominant purpose. For example if persons combine to protect their own interests and to damage another person they would be liable for the tort of conspiracy if the predominant purpose is to cause damage and damage results; but if the predominent purpose is protection of their legitimate interests they would not be liable even if damage is caused to another person.

The measure of damages must also include the following aspects:

The term “ malfeasance “ applies to the commission of an unlawful act. It is generally applicable to those unlawful acts, such as trespass, which are actionable per se and do not require proof of intention or motive. The term “ misfeasance “ is applicable to improper performance of some lawful act for example when there is negligence. The term “ non-feasance “ applies to the omission to  perform some act when there is an obligation to perform it.

right even if act done intentionally and there is damage. – mental element  such as intention, negligence, malice or motive in association with an act or omission which is violative of a right recognised by law plays an important role in creating a liability. Tortious liability here has an element of fault to support it. – sphere of tortious liability known as absolute or more properly strict where the element  of fault is conspicuously absent i.e. liability without fault. – important example of strict liability is the rule in Rylands v Fletcher. More recent example is M.C. Mehta v Union of India

English Law -  Crown was not liable in tort at common law for wrongs committed by its servants in the course of employment not even for wrongs expressly authoised by it. - Crown Proceedings Act 1947 – effect of the Act in other respect, speaking generally, is to abolish the immunity of the Crown in tort and to equate the Crown with a private citizen in matters of tortious liability. The Crown is now vicariously liable for torts committed by its servants in the course of their employment if committed in circumstances which would render a private employer liable.

Indian Law – Crown was not answerable for the torts committed by its servants have never been applied in India.- earlier East India Co. – now Art. 300(1) of Constitution of India

SC in State of Rajasthan v Mst Vidyawati stated “ – there is no justification, in principle or in public interest, that the State should not be held liable vicariously for the tortious act of its servant “  It is well settled now that the State is reponsible for the tortious acts of its employee – AIR 1990 SC 513 p. 516,  SC in Nilbati Behra v State of Orissa, Verma J.  observed “ – Award of compensation  under Art. 32 or 226 – is a remedy available in public law based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not appy , even it may be available as a defence in private law in an action based on torts. “  

The measure of damages must also include the following aspects:

The underlying philosophy behind the statutory immunity is that the lesser private right must yield to the greater public interest. The statutory authority extends not merely to the act authorised by the statute but to all inevitable consequences of that act. If no  compensation is given, that affords a reason, though not a conclusive one, for thinking that the intention of the legislatur was, not that the thing should be done at all events, but only that it should be done, if it could be done, without injury to others. But the powers conferred by the legislature should be exercised with judgment and caution so that no unnecessary damage be done. If the damage could have been prevented by the reasonable exercise of the powers conferred, an action can be maintained. It is negligence to carry out the wok in a manner which results in damage unless it can be shown that that and that only was the way in which the duty could be performed.  // Where the terms of a statute are not imperative, but permissive, the fair inference is that the legislatue intended that the discretion, as to the use of general powers thereby conferred, should be exercised in strict conformity with private rights.

 // Harm suffered voluntarily does not constitute a legal injury and is not actionable. This pronciple is embodied in the maxim volenti non fit injuria (where the sufferer is willing no injury is done) A man cannot complain of harm to the chances of which he has exposed himself with knowledge and of his free will.

The measure of damages must also include the following aspects:

This expression i.e. necessity if based on the maxim salus populi suprema lex (the welfare of the people is the supreme law), a maxim founded on the implied assent on the part of every member of society, that his own individual wellfare shall, in case of necessity yield to that of the community and that his property, liberty and life, shall under certain circumstances, be placed in jeopardy or even sacrificed for the public good.   //There is authority for the view that even a private person as distinguished from the State may have a defence of necessity. – a balance is to be struck between competing sets of values.

// Every person has a right to defend his own person, property, or possession against an unlawful harm.- // Every person is entitled to protect his property. But he cannot for this purpose do an act which is injurious to his neighbour. – The means adopted to protect one’s property must be reasonable i.e. proportionate to the injuries which they are likely to inflict.

// Nothing is wrong of which a person of ordinary sense and temper would not complain  Courts of justice generally do not take trifling and immaterial matters into account, except under peculiar circumstances, such as the trial of a right, or where personal character is involved. This principle is based on the maxim de minimis non carat lex ( the law does nto take account of trifles ) and is recognised in the Indian Penal Code (s. 95)  The maxim does not apply where there is an injury to a legal right. 

// The common law maxim is actio personalis moritur cum persona ( a personal right of actions dies with the person )

The measure of damages must also include the following aspects:

 // It has been said that the damages assessed must answer “ what contemporary society would allow the wrongdoer to hold up his head among his neighbours and say with their approval that he has done the fair thing “, and that “ the amount awarded must not be niggardly since the law values  life and limb in a free society in generous scales.” These emotive statements only mean that the sum awarded must be fair and reasonable by accepted legal standards.

 // Where a man has more than one remedy for a tort, he elects to pusue one of them, giving up the other, the other remedies are waived. He cannot pursue them if he fails in the one elected. Waiver is express or implied : express, when the person entitled to anything expressly and in terms gives it up, in which case it nearly resembles release; implied, when the person entitled to anything does or acquiesces in something else which is inconsistent with that to which he is so entitlled. The phrase “ waive the tort “ does not mean that the tort itself is waived;  it is only the right to recover damages for the tort committed, that  is waived. -// - distinction berween election of remedies and election of substantive rights. In a case when the election is between two remedies, it is not complete merely by filing a suit to invoke one remedy until judgement is obtained whereas in a case  where there is an election berween two inconsistent substantive rights, the election may be complete at an earlier stage.

The measure of damages must also include the following aspects:

// An act done for another by a person not assuming to act for himself, but for such other person, though without any precedent authority, whatever, becomes the act of the principal, if subsequently ratified by him. In that case the principal is bound by the act, whether it be to his detriment or advantage, and whether it be founded on a tort or a contract to the same extent as by and with all the consequences which follow from the same act done by his previous authorty. Omnio ratihabitio retrorahitur et mandato prorio oequiparatur  (every ratification of an act relates back and thereupon becomes equivalent to a previous request) 

      Three considerations arise before a person can be held liable for a tort by            ratification:

(1)    It must be shown that the person ratifying the act ratified it with full knowledge of its being tortious, or it must be shown that, in ratifying and taking the benefit of the act, he meant to take upon himself, without  inquiry the risk of any irregularity which might have been committed, and to adopt the transaction right or wrong. //The act of ratification must take place at a time, and under circumstances, when the ratifyin party might himself have lawfully done the act which he ratifies.

(2)    Only such act bind a proncipal by subsequent ratification as were done at the time on the proncipal’s behalf. What is done by a person on his own account cannot be effectually adopted by another. If an act be done by a person on behalf of another, it is in general immaterial whether the authority be given prior or subsequent to the act

An act which is illegal and void is incapable of ratification. A ratification (1)    of tort by a principal will not free the agent from his responsibility to third person.

 // Liability of Master – Extent of Liability // The law is settled that a master is vicariously liable for the acts of his servants acting in the course of employment. – 1 -// Liability of Master – Implied Authority // In general, a servant in an emergency has an implied authoty to protect his master’s property. // Vicarious Liability of state // The state is liable vicariously for the torts committed by its servants in the course of employment.

// LIABILITY BY ABETMENT // In actions of wrong, those who abet the tortious acts are equally liable with those who commit the wrong. Aperson who procures the act of another is legally responsible for its consequences  All persons who aid, or counsel, or direct or join in the committal of wrongful act, are joint tort-feasors.

Every man has a right to have his reputation preserved inviolate. The right of reputation is acknowledged as an inherent general right of every person. It is a jus in rem, a right good against all the world. A man's reputation is his property, more valuable than other property.  

Good name is rather to be chosen than great riches – degree of suffering occasioned by loss of character and compare it with that occasioned by loss of property, the amount of former injury far exceeds that of the latter.

The measure of damages must also include the following aspects:

Law of defamation like many other branches of law of torts provides for balancing of interests. – competing interest, interest in reputation and freedom of speech.- wrong of defamation protects reputation and defence to the wrong i.e. truth and privilege protect the freedom of speech. Many people in England feel that the present law of defamation gives too much protection to reputation and imposes too great a restriction on the freedom of speech.

The wrong of defamation may be committed by way of either by way of writing or its equivalent , or by way of speech. – term 'libel' is used for former and 'Slander' for the latter.

A learned judge of MP High Court holds that there may be a hybrid type of defamation not falling within the recognised categories of libel and slander. In

that case it was held that the bridegroom and his father in refusing to take the bride to their home after marriage in full gaze of the guests committed the tort of defamation and damage could be awarded for loss of reputation.

Malicious prosecution  is malicious institution against another of unsuccessful criminal, bankruptcy or liquidation proceedings without reasonable or probable cause. This tort balances two competing principles, namely the freedom that every person should have in bringing criminals to justice and the need for restraining false accusation against innocent persons.

The foundation of the action lies in abuse of the process of the Court by wrongfully setting the law in motion and it is designed to discourage the perversion of the machinery of justice for an improper purpose.

In an action for malicious prosecution plaintiff must prove: (1) That he was prosecuted by the defendant, (2) proceedings complained of terminated in favour of plaintiff if from their nature they were capable of so terminating, (3) prosecution was instituted against him without any reasonable or probable cause, (4) prosecution was instituted with a malicious intention, that is, not with the mere intention of carrying the law into effect, but with an intention which was wrongful in point of fact, (5) he has suffered damage to his reputation or to the safety of person, or to the security of his property {several casesI]

An action will not lie for maliciously and without reasonable and probable cause instituting an ordinary suit. – sec 35A of CPC, compensatory costs

To put into force the process of law maliciously and without any reasonable and probable cause is wrongful; and, if thereby another is prejudiced in property or person, there is that conjunction of injury and loss for which an action will lie.

The tort of malicious legal process differs from malicious prosecution in that the legal process taken against a plaintiff is short of prosecution, i.e. when a process is obtained for arrest of the plaintiff or for attachment of his property.

Ingredients to be proved are same as in malicious prosecution except that damage to person or property must be established.

Sec 95 of CPC – summary remedy

The measure of damages must also include the following aspects:

Though the limits of the tort of misfeasance in public office have been considered only a few English cases, there is no doubt that the tort is well established.

If the public officer acts with malice, in the sense of an tntent to injure, and damage results the liability arose and the officer can be sued for the tort of misfeasance in public office.

The tort will also be committed, in the absence of malice, if the public officer knew both that what he was doing was invalid and that it will injure the plaintiff.

Tort is capable of being committed by a corporate body e.g. a city council.

Note :- The above is just a brief of the principles of the law of torts. We have an expertise in this field with full legal references. For the first time in the country, we have applied this law in banking and DRT matters. We have the total grasp of the relevant and material facts about banking, industries and finance in light of this law . With such mastery of facts and law, we are able to study the DRT cases and prepare the draft of pleadings for the counter-claim. We need only the documents. Personal discussions are not necessary but if the parties desire, they are welcome for the discussions. In all DRT matters, we can provide consultancy even on phone. We also conduct arguments in important cases in DRT and ADRT.

The law of Torts is part of the common law,

" It has also  been  held that section 9 of the  Code of Civil  Procedure, which enables a Civil Court  to try all suits of a civil nature , impliedly confers jurisdiction to apply the law of Torts as principles of justice, equity and good conscience. " - Union Carbide Corporation v Union of India, 1988 MPLJ 540.

      As  stated  by  Lord  Scarman: "  The  common  law,   which   in  a  constitutional  context  means  judicially  developed equity, covers everything  which is not  covered by   statutes  - - - the function of the  court is  to  decide the  case  before   it,  even  though the decision may require the extension or adaptation  of  a  principle  or  in  some  cases  the  creation  of a new  law  to  meet  the  justice  of    the  case, - -   " - Macloughlin v. O'Brian, (1982) All ER 298 (310) (H.L) This is a good basis for the application of the law of torts. 

Our  Supreme  Court  in respect of law of torts has  said   - - -  if an occasion arises the       Court can be more progressive than the English Courts in respect of law of torts and can evolve new principle of tort liability not yet accepted by the English  law. In the words of  Bhagwati C.J.  " We have to evolve new principles and lay down new norms which will adequately deal with new problems which arise in a highly industrialised economy. We can not  allow our judicial thinking to be  constricted  by  reference  to  the law as it  prevails in England or for the     matter of that  in  any  foreign country. We are certainly prepared to receive     light  from   whatever   source   it   comes  but  we  have  to  build  our  own     jurisprudence. whatever   source   it   comes  but  we  have  to  build  our  own     jurisprudence. " Hence we are fully justified in applying law of torts in banking and industrial finance.

More recently concerning law of torts, the Supreme Court Judge, Sahai J. observed: " Truly speaking entire law of torts is founded and structured on morality that no one has a right to injure or harm  other  intentionally  or even innocently. Therefore it would be     premitive  to  class  strictly  or close finally the ever-expanding and growing     horizon of tortuous liability.  Even  for social development, orderly growth of     the society and cultural refineness the liberal approach to tortuous liability by courts is  more  conductive." 

//- - --  The  word  ' tort '  is  derived  from  the Latin term tortem to twist and       implies  conduct  which  is  twisted  or  tortious. It now means a breach of some duty independent  of  contract  giving  rise to a civil cause of action and for which compensation is recoverable.  - - -  workable  definition  in  general  terms, a tort  may  be  defined  as a civil wrong independent of contract for which the appropriate remedy is an action for unliquidated damages.

      A tort is a species of civil injury or wrong. - - - no civil injury is to be classed as a tort unless the appropriate remedy for it is an action for damages. It is usual to say that a person is liable in tort irrespective of whether or not a judgment for damages has been given against him. He is liable from the moment he commits the tort.

The Law of Torts governs actions for damages for injuries to certain kinds of rights, like the rights to personal security, property and reputation. ‘ tort ‘  derived from a French word meaning in its etymological sense, a “ twisting out “ and in a popular sense, a crooked act, a transgression from straight or right conduct, a wrong. In this generic sense it (i.e. torts) was introduced into the terminology of English law by the French-speaking lawyers and judges of the courts of the Norman and Angevin Kings of England. Most of the technical terms of English Law are French in origin, - - - usual to speak – ‘ Actions in Contract ‘ and ‘ Actions in Tort ‘ Dr. Winfield has made a critical examination of many possible or current definitions of law of torts and the one suggested by him is as follows; “ Tortious liability arises from the breach of a duty primarily fixed by the law; such duty is towards persons generally and its breach is redressible by an action for unliquidated damages. The early common law was primarily concerned with remedies and not with rights and duties. The damages which a plaintiff has  a right to recover in an action for a tort belong to the category known as ‘ unliquidated damages ‘ This phrase is in law of torts applies to cases where a plaintiff claims not a predetermined and inelastic sum but such an amount as the court in its discretion is at liberty to award, though in his pleading, he may specify a particular amount. The phrase ‘ liquidated damages ‘ refers to a sum which has been predetermined by contract or statute.- -- Damages are usually intended to be a pecuniary compensation for the injury; they are then called substantial damages. They may be awarded with a view to  punish the defendant ; they are then called exemplary, punitive or vindictive damages.

     Tort, as we have seen, aims principally at the prevention or compensation of harm whereas the “ core “ of contract is the idea of forcing certain promises. - - - mere failure to  act will not be actionable in tort. - - - legally binding - - - damages can not be claimed in tort for a “ loss of expectation “ as opposed to  “ out of pocket “ losses, or, as it is sometimes expressed, damages in contract put the plaintiff in the position he would have been in had the contract been performed, whereas damages in tort put him in the position he would have been in had the tort not been committed. - - - plaintiff having the benefit of whichever is more favourable to him on the particular facts.  - - primary duty – for breach of which tortious liability is imposed. The breach of such a duty gives rise to a remedial duty, i.e. a duty to make redress, and this is always owed to a specific person or persons whatever the source of the liability.

2.     The  person committing  a  tort or wrong is  called  a tort-feasor or wrong doer, and his misdoing is a tortious act. The principal   aim   of  the   law  of  torts   is   compensation   of  victims   or  their dependants.  Grant  of  exemplary  damages  in certain cases will show that deterrent of wrong-doers is also another aim of the law of torts. // distinction between a Contract and a Tort  --- A  contract  is  founded upon consent : a tort  is  inflicted   against  or  without  consent,  A  contract necessitates privity between the parties to it : in tort no privity is needed. A tort is a violation of a right in rem i.e. of a right vested in some determinate person, either personally or as a member of the community, and available against the world at large; whereas a breach of contract is an infringement of a right in personam, i.e. of a right available only against some determinate person or body, and in which the community at large has no concern. The distinction between the two i.e. law of torts and law of contracts lies in the nature of the duty that is violated. In the case of a tort the duty is one imposed by the law and is owed to the community at large. In the case of contract, the duty is fixed by the will and consent of the parties, and it is owed to a definite person or persons.- - - Secondly, in a breach of contract, the motive for the breach is immaterial; in a tort, it is often taken into consideration. Thirdly, in a breach of contract, damages are only a compensation. In an action for tort to the property, they are generally the same. But where the injury is to the person, character, or feelings, and the facts disclose improper motive or conduct such as fraud, malice, violence, cruelty, or the like which aggravate the plaintiff’s injury. He may be awarded aggravated damages in the law of torts. Exemplary damages to punish the defendant and to deter him in future can also be awarded in certain cases in tort but rarely in  contract. Another distinction is that the law of torts is aimed at allocation or prevention of losses whereas the law of contract aims to see that promises made under a contract are performed. Same act may amount to a tort and a breach of contract. e.g. father employing  a surgeon to treat his injury.  There may be concurrent contractual and tortious duties owed to the same plaintiff who has a choice of proceeding either in tort or contract except when he must rely on a specific term of the contract as distinct from any duty of reasonable care implicit in the particular relationship brought about by the contract in  which case he has to depend exclusively on his contractual claim. Lord Bridge in the context of an auditor observed: In advising the client who employs him the professional man owes a duty to exercise that standard of skill and care appropriate to his professional status and will be liable both in contract and in tort for all losses which his client may suffer by reason of any breach of that duty.

The law of torts is fashioned as “ an instrument for making people adhere to standards of reasonable behaviour and respect the rights and interests of one another. – violation of protected interests of a person – remedy by  giving him compensation – By  “ interest “ here is meant “ a claim, want or desire of a human being or group of human beings which the  human being or group of human beings seek to satisfy, and of which therefore , the ordering of human relations in civilized society must take account.  “ – A protected interest gives rise to a legal right which in turn gives rise to a corresponding legal duty. Some legal rights are absolute in the sense that mere violation of them leads to the presumption of damage. – An act which infringes a legal right is a wrongful act. – To constitute a tort or civil injury (1) there must be a wrongful act committed by a person (2) the wrongful act must give rise to legal damage or actual damage and (3) the wrongful act must be of such a nature as to give rise to a legal remedy in the form of an action for damages. – The crucial test of legally wrongful act or omission is its prejudicial effect on the legal right of another.- ‘legal right ‘ defined by Austin as a ‘ faculty ‘ which resides in a determinate party or parties by virtue of a given law, and which avails against a party (or parties or answer to a duty lying on a party or parties) other than the party or parties in whom it resides. Rights available against the world at large are numerous. – sub-divided into private rights and public rights. Private   rights   include   all  rights  which belong  to  a  particular  person  to the exclusion of the world at large. These rights are  " (1 ) rights of reputation; (2) rights of bodily safety and freedom; (3) rights  of  property  - - -  these  three  rights  will  be found to embrace all the personal  rights  that  are known to the law " .// To  every right there corresponds an obligation or duty. If the right is legal, so   is   the   obligation.  - - - A  right  in  its  main  aspect  consists  in  doing something, or receiving and accepting something. So an obligation consists in performing some act or in refraining from performing an act. - - - The duty with which the law of tort is concerned is the duty to abstain from wilful injury, to respect the property of  others, and to use due diligence to avoid causing harm to others. // Liability for a tort, therefore, arises  when the wrongful act complained of amounts  either  to  an  infringement  of  a legal private right or a breach or violation of a legal duty. – ‘ Damage ‘ means the harm or loss suffered or presumed to be suffered by a person as a result of some wrongful act of another. The sum of money awarded by the court is called “ damages” // From the  point of view of presumption of damage, rights are classified into (1) absolute and (2) qualified. When an absolute right is violated the law conclusively presumes damage although the person wronged may have suffered no pecuniary loss whatsoever. The damage so presumed is called legal damage. In case of qualified right, the injury or wrong is not complete unless the violation of the right results in actual or special damage. – The real significance of legal damage is illustrated by two maxim namely injuria sine damno and damnum sine (or absque) injuria. – damnum is meant damage in the substantial sense of money, loss of comfort, service, health or the like. – injuria is meant a tortious act; - Any unauthorised interference , however, trivial, with some absolute right conferred by law on Qualified person, is an injury. – injuria sine damno, i.e. the infringement of an absolute private right without any actual loss or damage,  the person whose right is infringed has a cause of action. Every person has an absolute right to his property, to the immunity of his person, and to his liberty, and an infringement of this right is actionable per se. In this case law presumes damage because certain acts are so likely to result in harm owing to their mischievous tendency that the law prohibits them absolutely – damage need not be proved. Whenever a person has sustained what the law calls an ‘injury’ and in this case he may bring an action without being under the necessity of proving special damage because the injury itself has taken to imply damage. A violation of a legal right committed knowingly gives rise to a cause of action -

      If there is merely a threat of infringement of a legal right without the injury being complete the person whose right has been threatened can bring a suit under the povisions ot the Specific Relief Act for declaration and injunction. damnum sine injuria i.e. actual and substantial loss without infringement of any legal right, no action lies. – When an act is lawful or legally done, without negligence, and in the exercise of a legal right, such damage as comes to another thereby is damage without injury. Actual damage is the gist of action in (2) menace (4) slander (except in four cases) (5) deceipt (6) conspiracy or confederation (8) distress damage feasant (9) negligence (10) nuisance consisting of damages to property. // A tort is a civil injury, but all civil injuries are not torts. The wrongful act must come under the category of wrongs for which the remedy is a civil action for damages. The essential remedy for tort is an action for damages. // The law of torts is said to be a development of the maxim  ubi jus ibi remedium (there is no wrong without a remedy) – if all the remedies for enforcing a right are gone, the right from practical point of view ceased to exist.

    Judges are cautious in making innovations and they seldom proclaim their creative role. Normally a new principle is judicially accepted to accommodate new ideas of social welfare or public policy only after they have gained their recognition in the society. The general principles behind the tort of negligence is that ‘ you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.

     To constitute a tort there must be a wrongful act.. The word “act” in this context is used in a wide sense to include both positive and negatice acts i.e. acts and omissions.- difference – Failure to do something in doing an act is not an omission but a bad way of performing the act. – An omission is failure to do an act as a whole.              // Generally speaking the law does not impose liability for mere omissions. An omission incurs liability when there is a duty to act. – drowning child, stranger and parent – actionable omission

    A voluntary act may be distinguished from the other by dividing into (1) a willed muscular contraction (2) its circumstances and (3) its consequences. An act is wrongful because of the circumstances in which it is performed and the consequences which it produces. For instance, to crook the forefinger with a certain force is the same act whether the trigger of a pistol is next to it or not. It is only the surrounding circumstances of a pistol loaded and cocked, and of a human being in such relation to as to be manifestly likely to be hit that make the act a wrong. – involuntary acts are those where the actor lacks the power to control his actions and involuntary omissions are those where the actor’s lack of power to control his actions renders him unable to do the  act required. An involuntary act does not give rise to any liability. – necessity is a plausible defence.

Even a voluntary act, except in those cases where the liability is strict , is not enough to fasten liability and it has to be accompanied with requisite mental element i.e. malice, intention, negligence or motive to make it an actionable tort assuming that other necessary ingredients of the tort are present.- Malice in the popular sense means spite or ill-will. But in law malice has two distinct meanings : (1) Intentional doing of a wrongful act and (2) Improper motive – Malice in the first sense was described by Bayley J. in the following words : “ Malice in common acceptation means ill-will against a person, but in its legal sense it means a wrongful act, done intentionally, without just cause or excuse. If I give a stranger a perfect blow likely to produce death, I do it out of malice, because I do it intentionally and without just cause or excuse. – A wrongful act,  done knowingly and with a view to its injurious consequences, may be called malicious. But such malice derives its essential character from the circumstances that the act is intentionally done and constitutes a violation of the law. – malice in the first sense is also known as  “ malice in law “ which means an act done wrongfully and without reasonable and probable cause and not as in common parlance an act dictated by angry feeling or vindicative motive. “ Malice in law  “ is “ implied malice “ when from the circumstances of the case, the law will infer malice. Malice in second sense is sometimes known as “ express malice “, “ actual malice “ or “ malice in fact “  Malice in this sense i.e. improper motive is for example relevant in the tort of malicious prosecution. Intention, Negligence and Recklessness – Intention is an internal fact, something which passes in the mind and direct evidence of which is not available. - an act is intentional as to its consequences – Recklessness is sometimes called  “ Gross negligence ” Motive– is the ulterior object or purpose of doing an act. – differs from intention in two ways. First, intention relates to the immediate objectives of an act, whereas motive refers to the ulterior objective. Secondly motive refers to some personal benefit or satisfaction which the actor desires whereas intention need not be so related to te actor. – motive is generally irrelevent in tort. – The exceptional cases where motive is relevant as an ingredient are torts of malicious prosecution, malicious abuse of process and malacious falsehood. Motive is also relevant in the torts of defamation, nuisance and conspiracy. In some cases there may be a plurality of purposes and it may become necessary to decide as to what is the predominant purpose. For example if persons combine to protect their own interests and to damage another person they would be liable for the tort of conspiracy if the predominant purpose is to cause damage and damage results; but if the predominent purpose is protection of their legitimate interests they would not be liable even if damage is caused to another person.

The term “ malfeasance “ applies to the commission of an unlawful act. It is generally applicable to those unlawful acts, such as trespass, which are actionable per se and do not require proof of intention or motive. The term “ misfeasance “ is applicable to improper performance of some lawful act for example when there is negligence. The term “ non-feasance “ applies to the omission to  perform some act when there is an obligation to perform it.

right even if act done intentionally and there is damage. – mental element  such as intention, negligence, malice or motive in association with an act or omission which is violative of a right recognised by law plays an important role in creating a liability. Tortious liability here has an element of fault to support it. – sphere of tortious liability known as absolute or more properly strict where the element  of fault is conspicuously absent i.e. liability without fault. – important example of strict liability is the rule in Rylands v Fletcher. More recent example is M.C. Mehta v Union of India

English Law -  Crown was not liable in tort at common law for wrongs committed by its servants in the course of employment not even for wrongs expressly authoised by it. - Crown Proceedings Act 1947 – effect of the Act in other respect, speaking generally, is to abolish the immunity of the Crown in tort and to equate the Crown with a private citizen in matters of tortious liability. The Crown is now vicariously liable for torts committed by its servants in the course of their employment if committed in circumstances which would render a private employer liable.

Indian Law – Crown was not answerable for the torts committed by its servants have never been applied in India.- earlier East India Co. – now Art. 300(1) of Constitution of India

SC in State of Rajasthan v Mst Vidyawati stated “ – there is no justification, in principle or in public interest, that the State should not be held liable vicariously for the tortious act of its servant “  It is well settled now that the State is reponsible for the tortious acts of its employee – AIR 1990 SC 513 p. 516,  SC in Nilbati Behra v State of Orissa, Verma J.  observed “ – Award of compensation  under Art. 32 or 226 – is a remedy available in public law based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not appy , even it may be available as a defence in private law in an action based on torts. “  

The underlying philosophy behind the statutory immunity is that the lesser private right must yield to the greater public interest. The statutory authority extends not merely to the act authorised by the statute but to all inevitable consequences of that act. If no  compensation is given, that affords a reason, though not a conclusive one, for thinking that the intention of the legislatur was, not that the thing should be done at all events, but only that it should be done, if it could be done, without injury to others. But the powers conferred by the legislature should be exercised with judgment and caution so that no unnecessary damage be done. If the damage could have been prevented by the reasonable exercise of the powers conferred, an action can be maintained. It is negligence to carry out the wok in a manner which results in damage unless it can be shown that that and that only was the way in which the duty could be performed.  // Where the terms of a statute are not imperative, but permissive, the fair inference is that the legislatue intended that the discretion, as to the use of general powers thereby conferred, should be exercised in strict conformity with private rights.

 // Harm suffered voluntarily does not constitute a legal injury and is not actionable. This pronciple is embodied in the maxim volenti non fit injuria (where the sufferer is willing no injury is done) A man cannot complain of harm to the chances of which he has exposed himself with knowledge and of his free will.

This expression i.e. necessity if based on the maxim salus populi suprema lex (the welfare of the people is the supreme law), a maxim founded on the implied assent on the part of every member of society, that his own individual wellfare shall, in case of necessity yield to that of the community and that his property, liberty and life, shall under certain circumstances, be placed in jeopardy or even sacrificed for the public good.   //There is authority for the view that even a private person as distinguished from the State may have a defence of necessity. – a balance is to be struck between competing sets of values.

// Every person has a right to defend his own person, property, or possession against an unlawful harm.- // Every person is entitled to protect his property. But he cannot for this purpose do an act which is injurious to his neighbour. – The means adopted to protect one’s property must be reasonable i.e. proportionate to the injuries which they are likely to inflict.

// Nothing is wrong of which a person of ordinary sense and temper would not complain  Courts of justice generally do not take trifling and immaterial matters into account, except under peculiar circumstances, such as the trial of a right, or where personal character is involved. This principle is based on the maxim de minimis non carat lex ( the law does nto take account of trifles ) and is recognised in the Indian Penal Code (s. 95)  The maxim does not apply where there is an injury to a legal right. 

// The common law maxim is actio personalis moritur cum persona ( a personal right of actions dies with the person )

 // It has been said that the damages assessed must answer “ what contemporary society would allow the wrongdoer to hold up his head among his neighbours and say with their approval that he has done the fair thing “, and that “ the amount awarded must not be niggardly since the law values  life and limb in a free society in generous scales.” These emotive statements only mean that the sum awarded must be fair and reasonable by accepted legal standards.

 // Where a man has more than one remedy for a tort, he elects to pusue one of them, giving up the other, the other remedies are waived. He cannot pursue them if he fails in the one elected. Waiver is express or implied : express, when the person entitled to anything expressly and in terms gives it up, in which case it nearly resembles release; implied, when the person entitled to anything does or acquiesces in something else which is inconsistent with that to which he is so entitlled. The phrase “ waive the tort “ does not mean that the tort itself is waived;  it is only the right to recover damages for the tort committed, that  is waived. -// - distinction berween election of remedies and election of substantive rights. In a case when the election is between two remedies, it is not complete merely by filing a suit to invoke one remedy until judgement is obtained whereas in a case  where there is an election berween two inconsistent substantive rights, the election may be complete at an earlier stage.

// An act done for another by a person not assuming to act for himself, but for such other person, though without any precedent authority, whatever, becomes the act of the principal, if subsequently ratified by him. In that case the principal is bound by the act, whether it be to his detriment or advantage, and whether it be founded on a tort or a contract to the same extent as by and with all the consequences which follow from the same act done by his previous authorty. Omnio ratihabitio retrorahitur et mandato prorio oequiparatur  (every ratification of an act relates back and thereupon becomes equivalent to a previous request) 

      Three considerations arise before a person can be held liable for a tort by            ratification:

(1)    It must be shown that the person ratifying the act ratified it with full knowledge of its being tortious, or it must be shown that, in ratifying and taking the benefit of the act, he meant to take upon himself, without  inquiry the risk of any irregularity which might have been committed, and to adopt the transaction right or wrong. //The act of ratification must take place at a time, and under circumstances, when the ratifyin party might himself have lawfully done the act which he ratifies.

(2)    Only such act bind a proncipal by subsequent ratification as were done at the time on the proncipal’s behalf. What is done by a person on his own account cannot be effectually adopted by another. If an act be done by a person on behalf of another, it is in general immaterial whether the authority be given prior or subsequent to the act

An act which is illegal and void is incapable of ratification. A ratification (1)    of tort by a principal will not free the agent from his responsibility to third person.

 // Liability of Master – Extent of Liability // The law is settled that a master is vicariously liable for the acts of his servants acting in the course of employment. – 1 -// Liability of Master – Implied Authority // In general, a servant in an emergency has an implied authoty to protect his master’s property. // Vicarious Liability of state // The state is liable vicariously for the torts committed by its servants in the course of employment.

// LIABILITY BY ABETMENT // In actions of wrong, those who abet the tortious acts are equally liable with those who commit the wrong. Aperson who procures the act of another is legally responsible for its consequences  All persons who aid, or counsel, or direct or join in the committal of wrongful act, are joint tort-feasors.

Every man has a right to have his reputation preserved inviolate. The right of reputation is acknowledged as an inherent general right of every person. It is a jus in rem, a right good against all the world. A man's reputation is his property, more valuable than other property.  

Good name is rather to be chosen than great riches – degree of suffering occasioned by loss of character and compare it with that occasioned by loss of property, the amount of former injury far exceeds that of the latter.

Law of defamation like many other branches of law of torts provides for balancing of interests. – competing interest, interest in reputation and freedom of speech.- wrong of defamation protects reputation and defence to the wrong i.e. truth and privilege protect the freedom of speech. Many people in England feel that the present law of defamation gives too much protection to reputation and imposes too great a restriction on the freedom of speech.

The wrong of defamation may be committed by way of either by way of writing or its equivalent , or by way of speech. – term 'libel' is used for former and 'Slander' for the latter.

A learned judge of MP High Court holds that there may be a hybrid type of defamation not falling within the recognised categories of libel and slander. In

that case it was held that the bridegroom and his father in refusing to take the bride to their home after marriage in full gaze of the guests committed the tort of defamation and damage could be awarded for loss of reputation.

Malicious prosecution  is malicious institution against another of unsuccessful criminal, bankruptcy or liquidation proceedings without reasonable or probable cause. This tort balances two competing principles, namely the freedom that every person should have in bringing criminals to justice and the need for restraining false accusation against innocent persons.

The foundation of the action lies in abuse of the process of the Court by wrongfully setting the law in motion and it is designed to discourage the perversion of the machinery of justice for an improper purpose.

In an action for malicious prosecution plaintiff must prove: (1) That he was prosecuted by the defendant, (2) proceedings complained of terminated in favour of plaintiff if from their nature they were capable of so terminating, (3) prosecution was instituted against him without any reasonable or probable cause, (4) prosecution was instituted with a malicious intention, that is, not with the mere intention of carrying the law into effect, but with an intention which was wrongful in point of fact, (5) he has suffered damage to his reputation or to the safety of person, or to the security of his property {several casesI]

An action will not lie for maliciously and without reasonable and probable cause instituting an ordinary suit. – sec 35A of CPC, compensatory costs

To put into force the process of law maliciously and without any reasonable and probable cause is wrongful; and, if thereby another is prejudiced in property or person, there is that conjunction of injury and loss for which an action will lie.

The tort of malicious legal process differs from malicious prosecution in that the legal process taken against a plaintiff is short of prosecution, i.e. when a process is obtained for arrest of the plaintiff or for attachment of his property.

Ingredients to be proved are same as in malicious prosecution except that damage to person or property must be established.

Sec 95 of CPC – summary remedy

Though the limits of the tort of misfeasance in public office have been considered only a few English cases, there is no doubt that the tort is well established.

If the public officer acts with malice, in the sense of an tntent to injure, and damage results the liability arose and the officer can be sued for the tort of misfeasance in public office.

The tort will also be committed, in the absence of malice, if the public officer knew both that what he was doing was invalid and that it will injure the plaintiff.

Tort is capable of being committed by a corporate body e.g. a city council.