Textbook: Law of Torts | Legal Studies for Class 12 - Humanities/Arts PDF Download

 Page 1


2
Law of Torts
Learning Outcomes:
Students will be able to
•	 Understand the meaning of Torts
•	 Differentiate between civil and criminal laws
•	 Differentiate between Tort and Breach of Contract
•	 Identify the sources of Tort law
•	 Explain the different types of wrongful acts in Torts
•	 List the types of Intentional Torts
•	 Explain the components of the Tort of Negligence
•	 Understand the concept of Strict Liability and its components
•	 Differentiate between Strict liability and Absolute liability
•.	 Summarise the different types of harm in torts
A. Introduction
Concept
‘T or t’	 essentially	 means	 a	 ‘ wrong’.	 It	 is	 derived	 from	 the	 L atin	 word	 ‘tor tum’,	 which	 means	 ‘twisted’	
or	‘crooked’.	
In	 law ,	 tor t	 is	 defined	 as	 a	 civil	 wrong	 or	 a	 wrongful	 act,	 of	 one,	 either	 intentional	 or	 accidental,	 that	
results in injury or harm to another who in turn has recourse to civil remedies for damages or a court 
order	or	injunction.	
According	 to	 Sir	 John	 Salmond,	 an	 English	 legal	 scholar ,	 T or t	 is	 a	 civil	 wrong	 for	 which	 the	 r emedy	 is	
a	 common	 law	 action	 for	 unliquidated	 damages,	 and	 which	 is	 not	 e xclusively	 a	 br each	 of	 contract,	 or	
a	 br each	 of	 trust,	 or	 other	 mer ely	 equitable	 obligation	 In	 the	 words	 of	 M.C.	 Setalvad,	 the	 first	 A ttor ney	
General	 of	 India,	 “law	 of	 tor ts	 is	 an	 instrument	 for	 making	 people	 adher e	 to	 standards	 of	 r easonable	
behaviour	and	r espect	the	rights	and	inter ests	of	one	another .	
Damages under law of torts are essentially compensatory and seek to place the defendant in the 
position	 that	 he	 would	 have	 been	 had	 the	 wrongful	 act	 not	 been	 per for med.	 	 The	 r emedy	 is	 often	
in	 the	 natur e	 of	 ‘unliquidated	 damages’.	 Unliquidated	 damages	 	 can	 be	 defined	 as	the sum of 
money that cannot be foreseen or assessed by a fixed or predecided formula. Damages 
may be categorised as unliquidated when the amount of damages is unidentifiable or subject to an 
unfor eseen	event	that	makes	the	amount	not	calculable.
CHAPTER
3(B)
Page 2


2
Law of Torts
Learning Outcomes:
Students will be able to
•	 Understand the meaning of Torts
•	 Differentiate between civil and criminal laws
•	 Differentiate between Tort and Breach of Contract
•	 Identify the sources of Tort law
•	 Explain the different types of wrongful acts in Torts
•	 List the types of Intentional Torts
•	 Explain the components of the Tort of Negligence
•	 Understand the concept of Strict Liability and its components
•	 Differentiate between Strict liability and Absolute liability
•.	 Summarise the different types of harm in torts
A. Introduction
Concept
‘T or t’	 essentially	 means	 a	 ‘ wrong’.	 It	 is	 derived	 from	 the	 L atin	 word	 ‘tor tum’,	 which	 means	 ‘twisted’	
or	‘crooked’.	
In	 law ,	 tor t	 is	 defined	 as	 a	 civil	 wrong	 or	 a	 wrongful	 act,	 of	 one,	 either	 intentional	 or	 accidental,	 that	
results in injury or harm to another who in turn has recourse to civil remedies for damages or a court 
order	or	injunction.	
According	 to	 Sir	 John	 Salmond,	 an	 English	 legal	 scholar ,	 T or t	 is	 a	 civil	 wrong	 for	 which	 the	 r emedy	 is	
a	 common	 law	 action	 for	 unliquidated	 damages,	 and	 which	 is	 not	 e xclusively	 a	 br each	 of	 contract,	 or	
a	 br each	 of	 trust,	 or	 other	 mer ely	 equitable	 obligation	 In	 the	 words	 of	 M.C.	 Setalvad,	 the	 first	 A ttor ney	
General	 of	 India,	 “law	 of	 tor ts	 is	 an	 instrument	 for	 making	 people	 adher e	 to	 standards	 of	 r easonable	
behaviour	and	r espect	the	rights	and	inter ests	of	one	another .	
Damages under law of torts are essentially compensatory and seek to place the defendant in the 
position	 that	 he	 would	 have	 been	 had	 the	 wrongful	 act	 not	 been	 per for med.	 	 The	 r emedy	 is	 often	
in	 the	 natur e	 of	 ‘unliquidated	 damages’.	 Unliquidated	 damages	 	 can	 be	 defined	 as	the sum of 
money that cannot be foreseen or assessed by a fixed or predecided formula. Damages 
may be categorised as unliquidated when the amount of damages is unidentifiable or subject to an 
unfor eseen	event	that	makes	the	amount	not	calculable.
CHAPTER
3(B)
It must be mentioned that tort is a civil wrong as distinguished from criminal wrong; both the 
substantive	 elements	 and	 the	 procedur es	 ar e	 differ ent	 in	 civil	 law	 and	 criminal	 law .	 In	 a	 criminal	
case,	 the	 state	 initiates	 legal	 proceedings	 in	 a	 criminal	 cour t	 on	 behalf	 of	 the	 victim	 and	 is	 punished	 if	
found	 guilty	 by	 the	 cour t.	 A	 civil	 action,	 like	 the	 tor t	 suit,	 is	 pursued	 in	 a	 civil	 cour t	 wher e	 the	 person	
aggrieved or his representatives or survivors prosecute the wrong-doer usually for compensation in 
the	 for m	 of	 monetar y	 dama ges	 and	 also	 at	 times	 for	 other	 r elief	 or	 injunction.	 Generally ,	 tor t	 cases	
aim	 at	 compensating	 the	 victim	 while	 criminal	 lawsuits	 often	 r esult	 in	 punishments,	 for	 e xample,	
prison	 sentences.	 Injunctions	 ar e	 cour t	 orders	 that,	 for	 e xample,	 may	 prohibit	 the	 wrong-doer	 from	
har ming	 the	 victim	 or	 pr event	 the	 for mer	 from	 tr espassing	 the	 latter ’s	 proper ty .	 Occasionally ,	 cour ts	
may	also	grant	punitive	damages,	which	ar e	costs	or	damages	in	e xcess	of	the	compensation.
It	is	also	impor tant	to	mark	the	distinctions	between	tor t	and	br each	of	contract.
Tort Breach of Contract
A Tort is a civil wrong in which the remedy 
is	action	for	damages.
Breach of contract is a breach of a promise the primary 
r emedy	of	which	is	per for mance		of	the	contract.
Damages	ar e	always	unliquidated. In	br each	of	contract	the	damages	ar e	liquidated.
In tort motive may be taken into 
consideration
In	br each	of	contract	the	motive	is	ir r elevant.
In tort duty is bound towards the persons 
generally .
In breach of contract the duty is bound towards a 
specific	person	or	persons.
In tort the damages may be compensatory 
or even exemplary damages may also be 
awarded.
In	 br each	 of	 contract,	 natur e	 of	 damages	 is	
compensatory
A	tor t	can	be	intentional	 or	accidental.	 It	includes	 wrongful	acts	such	as	batter y	and	assault	(physical	
or	 mental	 injur y	 to	 the	 claimant),	 nuisance	 (an	 act	 which	 is	 har mful	 or	 offensive	 to	 the	 public	 or	
an	 individual),	 defamation	 (wher e	 claimant’s	 r eputation	 is	 injur ed),	 proper ty	 damage,	 tr espass	 (to	
claimant’s	 land 	 or	 proper ty),	 negligence	 (car eless	 behavi our),	 and	 others;	 some	 of	 these	 ar e	 discussed	
below .	
The three fundamental elements of a tort are:
1.		 W rongful	act;
2.		 Damage;
3.		 Remedy .
These tortious wrongs may also have aspects which overlap with other fields of law like criminal law 
and	 contract	 law ,	 e xamples	 of	 which	 may	 be	 found	 in	 the	 chapters	 on	 criminal	 law	 and	 contract	 law .	
In	 this	 chapter ,	 we	 ar e	 concer ned	 only	 with	 some	 of	 the	 basic	 featur es	 of	 law	 of	 tor ts	 in	 r elation	 to	
these	wrongs.
Sources of Law of Torts 
T or t	 is	 mostly	 a	 Common	 L aw	 subject.	 The	 law	 of	 tor ts	 did	 not	 develop	 from	 a	 statute	 or	 an	 act	
passed	 by	 the	 P arliament,	 but	 from	 centuries	 of	 judicial	 decisions	 –	 based	 on	 case	 decisions	 in	 English	
cour ts	 as	 well	 as	 in	 cour ts	 of	 other	 countries	 following	 the	 Common	 law	 system	 such	 as	 that	 of	 India,	
Canada,	Australia	or	the	United	States	of	America.	
In	 India	 as	 well	 as	 in	 other	 jurisdictions	 both	 criminal	 law	 and	 contract	 law	 ar e	 based	 on	 statutes,	 for	
e xample,	 the	 Indian	 P enal	 Code	 and	 the	 Indian	 Contract	 Act	 r espectively .	 However ,	 ther e	 is	 no	 single	
statute	or	a	group	of	statutes	that	compr ehensively	deal	with	tor t	law	as	a	separate	ar ea	of	law .	
Page 3


2
Law of Torts
Learning Outcomes:
Students will be able to
•	 Understand the meaning of Torts
•	 Differentiate between civil and criminal laws
•	 Differentiate between Tort and Breach of Contract
•	 Identify the sources of Tort law
•	 Explain the different types of wrongful acts in Torts
•	 List the types of Intentional Torts
•	 Explain the components of the Tort of Negligence
•	 Understand the concept of Strict Liability and its components
•	 Differentiate between Strict liability and Absolute liability
•.	 Summarise the different types of harm in torts
A. Introduction
Concept
‘T or t’	 essentially	 means	 a	 ‘ wrong’.	 It	 is	 derived	 from	 the	 L atin	 word	 ‘tor tum’,	 which	 means	 ‘twisted’	
or	‘crooked’.	
In	 law ,	 tor t	 is	 defined	 as	 a	 civil	 wrong	 or	 a	 wrongful	 act,	 of	 one,	 either	 intentional	 or	 accidental,	 that	
results in injury or harm to another who in turn has recourse to civil remedies for damages or a court 
order	or	injunction.	
According	 to	 Sir	 John	 Salmond,	 an	 English	 legal	 scholar ,	 T or t	 is	 a	 civil	 wrong	 for	 which	 the	 r emedy	 is	
a	 common	 law	 action	 for	 unliquidated	 damages,	 and	 which	 is	 not	 e xclusively	 a	 br each	 of	 contract,	 or	
a	 br each	 of	 trust,	 or	 other	 mer ely	 equitable	 obligation	 In	 the	 words	 of	 M.C.	 Setalvad,	 the	 first	 A ttor ney	
General	 of	 India,	 “law	 of	 tor ts	 is	 an	 instrument	 for	 making	 people	 adher e	 to	 standards	 of	 r easonable	
behaviour	and	r espect	the	rights	and	inter ests	of	one	another .	
Damages under law of torts are essentially compensatory and seek to place the defendant in the 
position	 that	 he	 would	 have	 been	 had	 the	 wrongful	 act	 not	 been	 per for med.	 	 The	 r emedy	 is	 often	
in	 the	 natur e	 of	 ‘unliquidated	 damages’.	 Unliquidated	 damages	 	 can	 be	 defined	 as	the sum of 
money that cannot be foreseen or assessed by a fixed or predecided formula. Damages 
may be categorised as unliquidated when the amount of damages is unidentifiable or subject to an 
unfor eseen	event	that	makes	the	amount	not	calculable.
CHAPTER
3(B)
It must be mentioned that tort is a civil wrong as distinguished from criminal wrong; both the 
substantive	 elements	 and	 the	 procedur es	 ar e	 differ ent	 in	 civil	 law	 and	 criminal	 law .	 In	 a	 criminal	
case,	 the	 state	 initiates	 legal	 proceedings	 in	 a	 criminal	 cour t	 on	 behalf	 of	 the	 victim	 and	 is	 punished	 if	
found	 guilty	 by	 the	 cour t.	 A	 civil	 action,	 like	 the	 tor t	 suit,	 is	 pursued	 in	 a	 civil	 cour t	 wher e	 the	 person	
aggrieved or his representatives or survivors prosecute the wrong-doer usually for compensation in 
the	 for m	 of	 monetar y	 dama ges	 and	 also	 at	 times	 for	 other	 r elief	 or	 injunction.	 Generally ,	 tor t	 cases	
aim	 at	 compensating	 the	 victim	 while	 criminal	 lawsuits	 often	 r esult	 in	 punishments,	 for	 e xample,	
prison	 sentences.	 Injunctions	 ar e	 cour t	 orders	 that,	 for	 e xample,	 may	 prohibit	 the	 wrong-doer	 from	
har ming	 the	 victim	 or	 pr event	 the	 for mer	 from	 tr espassing	 the	 latter ’s	 proper ty .	 Occasionally ,	 cour ts	
may	also	grant	punitive	damages,	which	ar e	costs	or	damages	in	e xcess	of	the	compensation.
It	is	also	impor tant	to	mark	the	distinctions	between	tor t	and	br each	of	contract.
Tort Breach of Contract
A Tort is a civil wrong in which the remedy 
is	action	for	damages.
Breach of contract is a breach of a promise the primary 
r emedy	of	which	is	per for mance		of	the	contract.
Damages	ar e	always	unliquidated. In	br each	of	contract	the	damages	ar e	liquidated.
In tort motive may be taken into 
consideration
In	br each	of	contract	the	motive	is	ir r elevant.
In tort duty is bound towards the persons 
generally .
In breach of contract the duty is bound towards a 
specific	person	or	persons.
In tort the damages may be compensatory 
or even exemplary damages may also be 
awarded.
In	 br each	 of	 contract,	 natur e	 of	 damages	 is	
compensatory
A	tor t	can	be	intentional	 or	accidental.	 It	includes	 wrongful	acts	such	as	batter y	and	assault	(physical	
or	 mental	 injur y	 to	 the	 claimant),	 nuisance	 (an	 act	 which	 is	 har mful	 or	 offensive	 to	 the	 public	 or	
an	 individual),	 defamation	 (wher e	 claimant’s	 r eputation	 is	 injur ed),	 proper ty	 damage,	 tr espass	 (to	
claimant’s	 land 	 or	 proper ty),	 negligence	 (car eless	 behavi our),	 and	 others;	 some	 of	 these	 ar e	 discussed	
below .	
The three fundamental elements of a tort are:
1.		 W rongful	act;
2.		 Damage;
3.		 Remedy .
These tortious wrongs may also have aspects which overlap with other fields of law like criminal law 
and	 contract	 law ,	 e xamples	 of	 which	 may	 be	 found	 in	 the	 chapters	 on	 criminal	 law	 and	 contract	 law .	
In	 this	 chapter ,	 we	 ar e	 concer ned	 only	 with	 some	 of	 the	 basic	 featur es	 of	 law	 of	 tor ts	 in	 r elation	 to	
these	wrongs.
Sources of Law of Torts 
T or t	 is	 mostly	 a	 Common	 L aw	 subject.	 The	 law	 of	 tor ts	 did	 not	 develop	 from	 a	 statute	 or	 an	 act	
passed	 by	 the	 P arliament,	 but	 from	 centuries	 of	 judicial	 decisions	 –	 based	 on	 case	 decisions	 in	 English	
cour ts	 as	 well	 as	 in	 cour ts	 of	 other	 countries	 following	 the	 Common	 law	 system	 such	 as	 that	 of	 India,	
Canada,	Australia	or	the	United	States	of	America.	
In	 India	 as	 well	 as	 in	 other	 jurisdictions	 both	 criminal	 law	 and	 contract	 law	 ar e	 based	 on	 statutes,	 for	
e xample,	 the	 Indian	 P enal	 Code	 and	 the	 Indian	 Contract	 Act	 r espectively .	 However ,	 ther e	 is	 no	 single	
statute	or	a	group	of	statutes	that	compr ehensively	deal	with	tor t	law	as	a	separate	ar ea	of	law .	
64
It	 is	 easy	 to	 e xplain	 this	 differ ence.	 A	 lawyer	 focusing	 on	 contract	 matters	 would	 ordinarily	 look	 at	 the	
Contract	 Act	 or	 the	 Sale	 of	 Goods	 Act	 to	 find	 out	 the	 rules	 	 which	 might	 apply	 to	 a	 given	 fact	 situation.	
On	 the	 other	 hand,	 a	 tor t	 lawyer	 cannot	 mer ely	 look	 at	 the	 statute	 to	 find	 out	 the	 law	 that	 could	
apply	 to	 a	 given	 fact	 situation.	 A	 tor t	 lawyer	 has	 to	 por e	 through	 the	 case	 law	 including	 the	 applicable	
pr ecedents	 in	 other	 jurisdictions	 to	 e xamine	 the	 e xistence	 of	 a	 tor tious	 wrong.	 T o	 summarise,	 the	 law	
of	tor ts	includes	both	statutes	and	case	laws	and	cannot	be	traced	to	a	single	sour ce.
However ,	 	 in	 many	 jurisdictions,	 including	 in	 India,	 ther e	 is	 a	 move	 to	 enact	 statutes	 concer ning	
tor tious	 wrongs	 which	 wer e	 hither to	 gover ned	 only	 by	 case	 laws.	 	 	 In	 India,	 for	 instance,	 automobile	
accidents	 as	 well	 as	 har m	 caused	 to	 consumers	 of	 goods	 and	 ser vices	 ar e	 cover ed	 by	 the	 Motor	 V ehicle	
Act	of	1988	(as	amended)	and	the	Consumer	P rotection	Act	of	1986(as	amended)	r espectively .		
B. Kinds of Wrongful Acts
In	 tor t	 cases,	 the	 victim	 or	 the	 plaintiff	 claims	 that	 the	 defendant	 or	 the	 wrong-doer	 has	 conducted	 a	
wrongful	 act	 or	 is	 liable	 for	 injur y	 incur r ed	 by	 the	 plaint iff .	 P rimarily ,	 ther e	 ar e	 thr ee	 kinds	 of	 wrongs	
in	tor t	law .	The	wrongful	act	can	occur:
1.	 either	intentionally ,	or	
2.	 negligently	on	par t	of	the	wrong-doer ,	or	
3.	 the	defendant	is	strictly	liable	for	the	wrongful	act.	
B.1 Intentional Tort
An	 intentional	 tor t	 r equir es	 the	 claimant	 to	 show	 that	 the	 defendant	 caused	 the	 injur y	 on	 purpose.	
The	 claimant	 must	 also	 show	 that	 he	 or	 she	 suffer ed	 a	 par ticular	 consequence	 or	 injur y ,	 and	 that	
the	 defendant ’s	 actions	 caused	 the	 consequence	 or	 injur y .	 Differ ent	 intentional	 tor ts	 deal	 in	 differ ent	
consequences	 and	 intents.	 Depending	 on	 the	 conte xts	 and	 situations,	 ther e	 ar e	 various	 kinds	 of	
intentional	 tor ts.	 These	 include	 assault,	 batter y ,	 false	 imprisonment,	 unlawful	 harassment,	 invasion	
of	 privacy	 and	 so	 on.	 These	 may	 also	 have	 aspects	 of	 criminal	 law ,	 but	 tr eating	 them	 also	 as	 tor ts	
incr eases	the	possibility	of	higher	compensation.	The	kinds	of	intentional	tor ts	ar e	e xplained	below .
Battery and Assault 
The tort of battery occurs when the defendant shows an intentional and direct application of physical 
for ce	 of	 the	 claimant	 with	 the	 intent	 to	 cause	 har m	 or	 offense.	 Both	 ‘intent’	 and	 ‘causation ’	 ar e	
r equir ed	for	the	tor t	of	batter y	to	occur .	
The	 act	 of	 touching	 doesn ’t	 necessarily	 have	 to	 be	 done 	 with	 the	 defendant’s	 hands	 always,	 it	 could	
be	anything	touching	the	plaintiff	such	as	throwing	hot	water	at	someone.	
The tort of assault occurs when the defendant intends to cause in the claimant’s mind a reasonable 
appr ehension	 (feeling	 of	 anxiety	 or	 fear)	 of	 an	 imminent	 har mful	 or	 offensive	 touching	 to	 the	 claimant;	
and	when	this	causes	the	claimant	to	suffer	a	r easonable	appr ehension	of	an	imminent	har m.	
F or	 e xample,	 if	 the	 defendant	 throws	 an	 iron	 ball	 at	 the	 claimant	 and	 misses	 his	 head	 as	 the	 claimant	
moves	 his	 hea d	 away	 from	 the	 dir ection	 of	 the	 iron	 ball,	 this	 amounts	 to	 assault.	 The	 per ception	 of	
the	claimant	is	impor tant.	
If the defendant points an unloaded gun at the claimant who does not know that it is unloaded and 
he	thinks	he	is	about	to	get	shot,	this	amounts	to	assault,	which	can	take	place	without	batter y .	
Likewise,	 batter y	 can	 take	 place	 without	 assault;	 for	 e xample,	 someone	 may	 hit	 another	 person	 from	
behind.	
Page 4


2
Law of Torts
Learning Outcomes:
Students will be able to
•	 Understand the meaning of Torts
•	 Differentiate between civil and criminal laws
•	 Differentiate between Tort and Breach of Contract
•	 Identify the sources of Tort law
•	 Explain the different types of wrongful acts in Torts
•	 List the types of Intentional Torts
•	 Explain the components of the Tort of Negligence
•	 Understand the concept of Strict Liability and its components
•	 Differentiate between Strict liability and Absolute liability
•.	 Summarise the different types of harm in torts
A. Introduction
Concept
‘T or t’	 essentially	 means	 a	 ‘ wrong’.	 It	 is	 derived	 from	 the	 L atin	 word	 ‘tor tum’,	 which	 means	 ‘twisted’	
or	‘crooked’.	
In	 law ,	 tor t	 is	 defined	 as	 a	 civil	 wrong	 or	 a	 wrongful	 act,	 of	 one,	 either	 intentional	 or	 accidental,	 that	
results in injury or harm to another who in turn has recourse to civil remedies for damages or a court 
order	or	injunction.	
According	 to	 Sir	 John	 Salmond,	 an	 English	 legal	 scholar ,	 T or t	 is	 a	 civil	 wrong	 for	 which	 the	 r emedy	 is	
a	 common	 law	 action	 for	 unliquidated	 damages,	 and	 which	 is	 not	 e xclusively	 a	 br each	 of	 contract,	 or	
a	 br each	 of	 trust,	 or	 other	 mer ely	 equitable	 obligation	 In	 the	 words	 of	 M.C.	 Setalvad,	 the	 first	 A ttor ney	
General	 of	 India,	 “law	 of	 tor ts	 is	 an	 instrument	 for	 making	 people	 adher e	 to	 standards	 of	 r easonable	
behaviour	and	r espect	the	rights	and	inter ests	of	one	another .	
Damages under law of torts are essentially compensatory and seek to place the defendant in the 
position	 that	 he	 would	 have	 been	 had	 the	 wrongful	 act	 not	 been	 per for med.	 	 The	 r emedy	 is	 often	
in	 the	 natur e	 of	 ‘unliquidated	 damages’.	 Unliquidated	 damages	 	 can	 be	 defined	 as	the sum of 
money that cannot be foreseen or assessed by a fixed or predecided formula. Damages 
may be categorised as unliquidated when the amount of damages is unidentifiable or subject to an 
unfor eseen	event	that	makes	the	amount	not	calculable.
CHAPTER
3(B)
It must be mentioned that tort is a civil wrong as distinguished from criminal wrong; both the 
substantive	 elements	 and	 the	 procedur es	 ar e	 differ ent	 in	 civil	 law	 and	 criminal	 law .	 In	 a	 criminal	
case,	 the	 state	 initiates	 legal	 proceedings	 in	 a	 criminal	 cour t	 on	 behalf	 of	 the	 victim	 and	 is	 punished	 if	
found	 guilty	 by	 the	 cour t.	 A	 civil	 action,	 like	 the	 tor t	 suit,	 is	 pursued	 in	 a	 civil	 cour t	 wher e	 the	 person	
aggrieved or his representatives or survivors prosecute the wrong-doer usually for compensation in 
the	 for m	 of	 monetar y	 dama ges	 and	 also	 at	 times	 for	 other	 r elief	 or	 injunction.	 Generally ,	 tor t	 cases	
aim	 at	 compensating	 the	 victim	 while	 criminal	 lawsuits	 often	 r esult	 in	 punishments,	 for	 e xample,	
prison	 sentences.	 Injunctions	 ar e	 cour t	 orders	 that,	 for	 e xample,	 may	 prohibit	 the	 wrong-doer	 from	
har ming	 the	 victim	 or	 pr event	 the	 for mer	 from	 tr espassing	 the	 latter ’s	 proper ty .	 Occasionally ,	 cour ts	
may	also	grant	punitive	damages,	which	ar e	costs	or	damages	in	e xcess	of	the	compensation.
It	is	also	impor tant	to	mark	the	distinctions	between	tor t	and	br each	of	contract.
Tort Breach of Contract
A Tort is a civil wrong in which the remedy 
is	action	for	damages.
Breach of contract is a breach of a promise the primary 
r emedy	of	which	is	per for mance		of	the	contract.
Damages	ar e	always	unliquidated. In	br each	of	contract	the	damages	ar e	liquidated.
In tort motive may be taken into 
consideration
In	br each	of	contract	the	motive	is	ir r elevant.
In tort duty is bound towards the persons 
generally .
In breach of contract the duty is bound towards a 
specific	person	or	persons.
In tort the damages may be compensatory 
or even exemplary damages may also be 
awarded.
In	 br each	 of	 contract,	 natur e	 of	 damages	 is	
compensatory
A	tor t	can	be	intentional	 or	accidental.	 It	includes	 wrongful	acts	such	as	batter y	and	assault	(physical	
or	 mental	 injur y	 to	 the	 claimant),	 nuisance	 (an	 act	 which	 is	 har mful	 or	 offensive	 to	 the	 public	 or	
an	 individual),	 defamation	 (wher e	 claimant’s	 r eputation	 is	 injur ed),	 proper ty	 damage,	 tr espass	 (to	
claimant’s	 land 	 or	 proper ty),	 negligence	 (car eless	 behavi our),	 and	 others;	 some	 of	 these	 ar e	 discussed	
below .	
The three fundamental elements of a tort are:
1.		 W rongful	act;
2.		 Damage;
3.		 Remedy .
These tortious wrongs may also have aspects which overlap with other fields of law like criminal law 
and	 contract	 law ,	 e xamples	 of	 which	 may	 be	 found	 in	 the	 chapters	 on	 criminal	 law	 and	 contract	 law .	
In	 this	 chapter ,	 we	 ar e	 concer ned	 only	 with	 some	 of	 the	 basic	 featur es	 of	 law	 of	 tor ts	 in	 r elation	 to	
these	wrongs.
Sources of Law of Torts 
T or t	 is	 mostly	 a	 Common	 L aw	 subject.	 The	 law	 of	 tor ts	 did	 not	 develop	 from	 a	 statute	 or	 an	 act	
passed	 by	 the	 P arliament,	 but	 from	 centuries	 of	 judicial	 decisions	 –	 based	 on	 case	 decisions	 in	 English	
cour ts	 as	 well	 as	 in	 cour ts	 of	 other	 countries	 following	 the	 Common	 law	 system	 such	 as	 that	 of	 India,	
Canada,	Australia	or	the	United	States	of	America.	
In	 India	 as	 well	 as	 in	 other	 jurisdictions	 both	 criminal	 law	 and	 contract	 law	 ar e	 based	 on	 statutes,	 for	
e xample,	 the	 Indian	 P enal	 Code	 and	 the	 Indian	 Contract	 Act	 r espectively .	 However ,	 ther e	 is	 no	 single	
statute	or	a	group	of	statutes	that	compr ehensively	deal	with	tor t	law	as	a	separate	ar ea	of	law .	
64
It	 is	 easy	 to	 e xplain	 this	 differ ence.	 A	 lawyer	 focusing	 on	 contract	 matters	 would	 ordinarily	 look	 at	 the	
Contract	 Act	 or	 the	 Sale	 of	 Goods	 Act	 to	 find	 out	 the	 rules	 	 which	 might	 apply	 to	 a	 given	 fact	 situation.	
On	 the	 other	 hand,	 a	 tor t	 lawyer	 cannot	 mer ely	 look	 at	 the	 statute	 to	 find	 out	 the	 law	 that	 could	
apply	 to	 a	 given	 fact	 situation.	 A	 tor t	 lawyer	 has	 to	 por e	 through	 the	 case	 law	 including	 the	 applicable	
pr ecedents	 in	 other	 jurisdictions	 to	 e xamine	 the	 e xistence	 of	 a	 tor tious	 wrong.	 T o	 summarise,	 the	 law	
of	tor ts	includes	both	statutes	and	case	laws	and	cannot	be	traced	to	a	single	sour ce.
However ,	 	 in	 many	 jurisdictions,	 including	 in	 India,	 ther e	 is	 a	 move	 to	 enact	 statutes	 concer ning	
tor tious	 wrongs	 which	 wer e	 hither to	 gover ned	 only	 by	 case	 laws.	 	 	 In	 India,	 for	 instance,	 automobile	
accidents	 as	 well	 as	 har m	 caused	 to	 consumers	 of	 goods	 and	 ser vices	 ar e	 cover ed	 by	 the	 Motor	 V ehicle	
Act	of	1988	(as	amended)	and	the	Consumer	P rotection	Act	of	1986(as	amended)	r espectively .		
B. Kinds of Wrongful Acts
In	 tor t	 cases,	 the	 victim	 or	 the	 plaintiff	 claims	 that	 the	 defendant	 or	 the	 wrong-doer	 has	 conducted	 a	
wrongful	 act	 or	 is	 liable	 for	 injur y	 incur r ed	 by	 the	 plaint iff .	 P rimarily ,	 ther e	 ar e	 thr ee	 kinds	 of	 wrongs	
in	tor t	law .	The	wrongful	act	can	occur:
1.	 either	intentionally ,	or	
2.	 negligently	on	par t	of	the	wrong-doer ,	or	
3.	 the	defendant	is	strictly	liable	for	the	wrongful	act.	
B.1 Intentional Tort
An	 intentional	 tor t	 r equir es	 the	 claimant	 to	 show	 that	 the	 defendant	 caused	 the	 injur y	 on	 purpose.	
The	 claimant	 must	 also	 show	 that	 he	 or	 she	 suffer ed	 a	 par ticular	 consequence	 or	 injur y ,	 and	 that	
the	 defendant ’s	 actions	 caused	 the	 consequence	 or	 injur y .	 Differ ent	 intentional	 tor ts	 deal	 in	 differ ent	
consequences	 and	 intents.	 Depending	 on	 the	 conte xts	 and	 situations,	 ther e	 ar e	 various	 kinds	 of	
intentional	 tor ts.	 These	 include	 assault,	 batter y ,	 false	 imprisonment,	 unlawful	 harassment,	 invasion	
of	 privacy	 and	 so	 on.	 These	 may	 also	 have	 aspects	 of	 criminal	 law ,	 but	 tr eating	 them	 also	 as	 tor ts	
incr eases	the	possibility	of	higher	compensation.	The	kinds	of	intentional	tor ts	ar e	e xplained	below .
Battery and Assault 
The tort of battery occurs when the defendant shows an intentional and direct application of physical 
for ce	 of	 the	 claimant	 with	 the	 intent	 to	 cause	 har m	 or	 offense.	 Both	 ‘intent’	 and	 ‘causation ’	 ar e	
r equir ed	for	the	tor t	of	batter y	to	occur .	
The	 act	 of	 touching	 doesn ’t	 necessarily	 have	 to	 be	 done 	 with	 the	 defendant’s	 hands	 always,	 it	 could	
be	anything	touching	the	plaintiff	such	as	throwing	hot	water	at	someone.	
The tort of assault occurs when the defendant intends to cause in the claimant’s mind a reasonable 
appr ehension	 (feeling	 of	 anxiety	 or	 fear)	 of	 an	 imminent	 har mful	 or	 offensive	 touching	 to	 the	 claimant;	
and	when	this	causes	the	claimant	to	suffer	a	r easonable	appr ehension	of	an	imminent	har m.	
F or	 e xample,	 if	 the	 defendant	 throws	 an	 iron	 ball	 at	 the	 claimant	 and	 misses	 his	 head	 as	 the	 claimant	
moves	 his	 hea d	 away	 from	 the	 dir ection	 of	 the	 iron	 ball,	 this	 amounts	 to	 assault.	 The	 per ception	 of	
the	claimant	is	impor tant.	
If the defendant points an unloaded gun at the claimant who does not know that it is unloaded and 
he	thinks	he	is	about	to	get	shot,	this	amounts	to	assault,	which	can	take	place	without	batter y .	
Likewise,	 batter y	 can	 take	 place	 without	 assault;	 for	 e xample,	 someone	 may	 hit	 another	 person	 from	
behind.	
65
False Imprisonment
The intentional tort of false imprisonment is satisfied whenever there is an intent to unlawfully confine 
or restrain the claimant in a bounded area and when this actually causes the claimant to be knowingly 
confined	 or	 r estrained	 in	 a	 bounded	 ar ea	 unlawfully .	 This	 leads	 to	 the	 total	 r estraint	 of	 liber ty	 of	 a	
person.	 F or	 e xample,	 the	 defendant	 intentionally	 locks	 the	 claimant	 in	 the	 classroom	 without	 having	
the	legal	authority	to	do	so ,	and	the	claimant	knows	he	is	trapped.	
Sometimes courts allow the actual harm to substitute for the awareness of the imprisonment - so 
even	 if	 the	 claimant	 is	 unawar e	 that	 he	 is	 trapped	 but	 suffers	 injur y ,	 the	 tor t	 of	 false	 imprisonment	 is	
satisfied.	However ,	the	claimant	should	not	be	trapped	willingly	and	consensually .
Trespass to Land 
The tort of trespass to land occurs when the defendant has the intent to interfere with the possession 
of	land	belonging	to	the	claimant.
This is done by physically invading property of the claimant without the claimant’s approval or 
consent.	 The	 invasion	 can	 happen	 with	 objects	 or	 by	 people.	 It	 includes	 invasion	 of	 some	 ar ea	 of	 air	
above	 the	 land 	 and	 some	 ar ea	 below	 the	 land.	 F or	 e xample,	 the	 defendant	 may	 litter	 the	 claimant’s	
land,	or	may	cr eate	a	drainage	outlet	below	the	land	of	the	claimant.	
Trespass to Chattels 
The tort of trespass to chattel occurs when the defendant has the intent to and does interfere with the 
lawful	possession	of	goods	belonging	to	the	claimant.
This	 is	 done	 when	 the	 defendant	 uses	 or	 inter meddles	 with	 a	 chattel	 (moveable	 personal	 proper ty),	
which	 was	 in	 the	 possession	 of	 the	 claimant	 and	 causes	 significant	 or	 perpetual	 dispossession,	
deprivation	 of	 use,	 or	 damage	 as	 to	 condition,	 quality ,	 or	 value	 of	 the	 chattel,	 or	 causes	 some	 other	
har m	to	claimant’s	legally	secur ed	inter est.	
F or	 e xample,	 if	 the	 defendant	 paints	 the	 car	 of	 claima nt	 that	 was	 parked	 on	 the	 side	 of	 the	 str eet,	
without	 the	 consent	 of	 the	 claimant	 while	 the	 claimant	 was	 away ,	 this	 amounts	 to	 tr espass	 to	 chattels.	
Conversion 
The	 tor t	 of	 conversion	 is	 somewhat	 r elated	 with	 the	 tor t	 of	 tr espass	 to	 chattels.	 Conversion	 is	 defined	
as	 an	 act	 of	 wilful	 inter fer ence,	 without	 lawful	 justification,	 with	 any	 chattel	 in	 a	 manner	 inconsistent	
with	the	right	of	another ,	wher eby	that	other	is	deprived	of	the	use	and	possession	of	it.
It occurs when the defendant intentionally uses or intermeddles with the chattel of the claimant in 
such a serious way that it becomes fair to ask for compensation or money payment for the total prior 
value	 of	 the	 chattel.	 In	 other	 words,	 the	 defendant	 is	 for ced	 to	 buy	 the	 chattel	 for	 a	 pur chase	 price	
based	 on	 the	 original	 value.	 Thus,	 the	 r emedy	 in	 conversion	 is	 for ced	 sale.	 Conversion	 is	 applicable	 in	
many	 situation s	 including	 wher e	 the	 chattel	 is	 taken,	 transfer r ed	 to	 someone	 else,	 changed,	 misused	
or	damaged.	
Unlawful harassment and Intentional Infliction of Emotional Distress
Defendant may be held liable for any act of deliberate physical harm to the victim even when no 
batter y	 or	 assault	 is	 involve d.	 F or	 e xample,	 if	 the	 defendant	 lies	 to	 the	 claimant	 that	 the	 latter ’s	
son	 met	 with	 a	 road	 accident,	 which	 causes	 ner vous	 shock	 to	 the	 claimant	 r esulting	 in	 illness,	 this	
constitutes	tor t	of	unlawful	harassment.	
Se xual	 harassment	 may	 also	 amount	 to	 tor t	 of	 unlaw ful	 harassment.	 F or	 e xample,	 if	 one	 follows	
another	 person,	 sends	 unwanted	 messages	 or	 phone	 calls;	 although	 ther e	 is	 no	 violence	 or	 thr eat	 of	
violence	involved,	this	act	amounts	to	a	tor t	of	harassment.	
Page 5


2
Law of Torts
Learning Outcomes:
Students will be able to
•	 Understand the meaning of Torts
•	 Differentiate between civil and criminal laws
•	 Differentiate between Tort and Breach of Contract
•	 Identify the sources of Tort law
•	 Explain the different types of wrongful acts in Torts
•	 List the types of Intentional Torts
•	 Explain the components of the Tort of Negligence
•	 Understand the concept of Strict Liability and its components
•	 Differentiate between Strict liability and Absolute liability
•.	 Summarise the different types of harm in torts
A. Introduction
Concept
‘T or t’	 essentially	 means	 a	 ‘ wrong’.	 It	 is	 derived	 from	 the	 L atin	 word	 ‘tor tum’,	 which	 means	 ‘twisted’	
or	‘crooked’.	
In	 law ,	 tor t	 is	 defined	 as	 a	 civil	 wrong	 or	 a	 wrongful	 act,	 of	 one,	 either	 intentional	 or	 accidental,	 that	
results in injury or harm to another who in turn has recourse to civil remedies for damages or a court 
order	or	injunction.	
According	 to	 Sir	 John	 Salmond,	 an	 English	 legal	 scholar ,	 T or t	 is	 a	 civil	 wrong	 for	 which	 the	 r emedy	 is	
a	 common	 law	 action	 for	 unliquidated	 damages,	 and	 which	 is	 not	 e xclusively	 a	 br each	 of	 contract,	 or	
a	 br each	 of	 trust,	 or	 other	 mer ely	 equitable	 obligation	 In	 the	 words	 of	 M.C.	 Setalvad,	 the	 first	 A ttor ney	
General	 of	 India,	 “law	 of	 tor ts	 is	 an	 instrument	 for	 making	 people	 adher e	 to	 standards	 of	 r easonable	
behaviour	and	r espect	the	rights	and	inter ests	of	one	another .	
Damages under law of torts are essentially compensatory and seek to place the defendant in the 
position	 that	 he	 would	 have	 been	 had	 the	 wrongful	 act	 not	 been	 per for med.	 	 The	 r emedy	 is	 often	
in	 the	 natur e	 of	 ‘unliquidated	 damages’.	 Unliquidated	 damages	 	 can	 be	 defined	 as	the sum of 
money that cannot be foreseen or assessed by a fixed or predecided formula. Damages 
may be categorised as unliquidated when the amount of damages is unidentifiable or subject to an 
unfor eseen	event	that	makes	the	amount	not	calculable.
CHAPTER
3(B)
It must be mentioned that tort is a civil wrong as distinguished from criminal wrong; both the 
substantive	 elements	 and	 the	 procedur es	 ar e	 differ ent	 in	 civil	 law	 and	 criminal	 law .	 In	 a	 criminal	
case,	 the	 state	 initiates	 legal	 proceedings	 in	 a	 criminal	 cour t	 on	 behalf	 of	 the	 victim	 and	 is	 punished	 if	
found	 guilty	 by	 the	 cour t.	 A	 civil	 action,	 like	 the	 tor t	 suit,	 is	 pursued	 in	 a	 civil	 cour t	 wher e	 the	 person	
aggrieved or his representatives or survivors prosecute the wrong-doer usually for compensation in 
the	 for m	 of	 monetar y	 dama ges	 and	 also	 at	 times	 for	 other	 r elief	 or	 injunction.	 Generally ,	 tor t	 cases	
aim	 at	 compensating	 the	 victim	 while	 criminal	 lawsuits	 often	 r esult	 in	 punishments,	 for	 e xample,	
prison	 sentences.	 Injunctions	 ar e	 cour t	 orders	 that,	 for	 e xample,	 may	 prohibit	 the	 wrong-doer	 from	
har ming	 the	 victim	 or	 pr event	 the	 for mer	 from	 tr espassing	 the	 latter ’s	 proper ty .	 Occasionally ,	 cour ts	
may	also	grant	punitive	damages,	which	ar e	costs	or	damages	in	e xcess	of	the	compensation.
It	is	also	impor tant	to	mark	the	distinctions	between	tor t	and	br each	of	contract.
Tort Breach of Contract
A Tort is a civil wrong in which the remedy 
is	action	for	damages.
Breach of contract is a breach of a promise the primary 
r emedy	of	which	is	per for mance		of	the	contract.
Damages	ar e	always	unliquidated. In	br each	of	contract	the	damages	ar e	liquidated.
In tort motive may be taken into 
consideration
In	br each	of	contract	the	motive	is	ir r elevant.
In tort duty is bound towards the persons 
generally .
In breach of contract the duty is bound towards a 
specific	person	or	persons.
In tort the damages may be compensatory 
or even exemplary damages may also be 
awarded.
In	 br each	 of	 contract,	 natur e	 of	 damages	 is	
compensatory
A	tor t	can	be	intentional	 or	accidental.	 It	includes	 wrongful	acts	such	as	batter y	and	assault	(physical	
or	 mental	 injur y	 to	 the	 claimant),	 nuisance	 (an	 act	 which	 is	 har mful	 or	 offensive	 to	 the	 public	 or	
an	 individual),	 defamation	 (wher e	 claimant’s	 r eputation	 is	 injur ed),	 proper ty	 damage,	 tr espass	 (to	
claimant’s	 land 	 or	 proper ty),	 negligence	 (car eless	 behavi our),	 and	 others;	 some	 of	 these	 ar e	 discussed	
below .	
The three fundamental elements of a tort are:
1.		 W rongful	act;
2.		 Damage;
3.		 Remedy .
These tortious wrongs may also have aspects which overlap with other fields of law like criminal law 
and	 contract	 law ,	 e xamples	 of	 which	 may	 be	 found	 in	 the	 chapters	 on	 criminal	 law	 and	 contract	 law .	
In	 this	 chapter ,	 we	 ar e	 concer ned	 only	 with	 some	 of	 the	 basic	 featur es	 of	 law	 of	 tor ts	 in	 r elation	 to	
these	wrongs.
Sources of Law of Torts 
T or t	 is	 mostly	 a	 Common	 L aw	 subject.	 The	 law	 of	 tor ts	 did	 not	 develop	 from	 a	 statute	 or	 an	 act	
passed	 by	 the	 P arliament,	 but	 from	 centuries	 of	 judicial	 decisions	 –	 based	 on	 case	 decisions	 in	 English	
cour ts	 as	 well	 as	 in	 cour ts	 of	 other	 countries	 following	 the	 Common	 law	 system	 such	 as	 that	 of	 India,	
Canada,	Australia	or	the	United	States	of	America.	
In	 India	 as	 well	 as	 in	 other	 jurisdictions	 both	 criminal	 law	 and	 contract	 law	 ar e	 based	 on	 statutes,	 for	
e xample,	 the	 Indian	 P enal	 Code	 and	 the	 Indian	 Contract	 Act	 r espectively .	 However ,	 ther e	 is	 no	 single	
statute	or	a	group	of	statutes	that	compr ehensively	deal	with	tor t	law	as	a	separate	ar ea	of	law .	
64
It	 is	 easy	 to	 e xplain	 this	 differ ence.	 A	 lawyer	 focusing	 on	 contract	 matters	 would	 ordinarily	 look	 at	 the	
Contract	 Act	 or	 the	 Sale	 of	 Goods	 Act	 to	 find	 out	 the	 rules	 	 which	 might	 apply	 to	 a	 given	 fact	 situation.	
On	 the	 other	 hand,	 a	 tor t	 lawyer	 cannot	 mer ely	 look	 at	 the	 statute	 to	 find	 out	 the	 law	 that	 could	
apply	 to	 a	 given	 fact	 situation.	 A	 tor t	 lawyer	 has	 to	 por e	 through	 the	 case	 law	 including	 the	 applicable	
pr ecedents	 in	 other	 jurisdictions	 to	 e xamine	 the	 e xistence	 of	 a	 tor tious	 wrong.	 T o	 summarise,	 the	 law	
of	tor ts	includes	both	statutes	and	case	laws	and	cannot	be	traced	to	a	single	sour ce.
However ,	 	 in	 many	 jurisdictions,	 including	 in	 India,	 ther e	 is	 a	 move	 to	 enact	 statutes	 concer ning	
tor tious	 wrongs	 which	 wer e	 hither to	 gover ned	 only	 by	 case	 laws.	 	 	 In	 India,	 for	 instance,	 automobile	
accidents	 as	 well	 as	 har m	 caused	 to	 consumers	 of	 goods	 and	 ser vices	 ar e	 cover ed	 by	 the	 Motor	 V ehicle	
Act	of	1988	(as	amended)	and	the	Consumer	P rotection	Act	of	1986(as	amended)	r espectively .		
B. Kinds of Wrongful Acts
In	 tor t	 cases,	 the	 victim	 or	 the	 plaintiff	 claims	 that	 the	 defendant	 or	 the	 wrong-doer	 has	 conducted	 a	
wrongful	 act	 or	 is	 liable	 for	 injur y	 incur r ed	 by	 the	 plaint iff .	 P rimarily ,	 ther e	 ar e	 thr ee	 kinds	 of	 wrongs	
in	tor t	law .	The	wrongful	act	can	occur:
1.	 either	intentionally ,	or	
2.	 negligently	on	par t	of	the	wrong-doer ,	or	
3.	 the	defendant	is	strictly	liable	for	the	wrongful	act.	
B.1 Intentional Tort
An	 intentional	 tor t	 r equir es	 the	 claimant	 to	 show	 that	 the	 defendant	 caused	 the	 injur y	 on	 purpose.	
The	 claimant	 must	 also	 show	 that	 he	 or	 she	 suffer ed	 a	 par ticular	 consequence	 or	 injur y ,	 and	 that	
the	 defendant ’s	 actions	 caused	 the	 consequence	 or	 injur y .	 Differ ent	 intentional	 tor ts	 deal	 in	 differ ent	
consequences	 and	 intents.	 Depending	 on	 the	 conte xts	 and	 situations,	 ther e	 ar e	 various	 kinds	 of	
intentional	 tor ts.	 These	 include	 assault,	 batter y ,	 false	 imprisonment,	 unlawful	 harassment,	 invasion	
of	 privacy	 and	 so	 on.	 These	 may	 also	 have	 aspects	 of	 criminal	 law ,	 but	 tr eating	 them	 also	 as	 tor ts	
incr eases	the	possibility	of	higher	compensation.	The	kinds	of	intentional	tor ts	ar e	e xplained	below .
Battery and Assault 
The tort of battery occurs when the defendant shows an intentional and direct application of physical 
for ce	 of	 the	 claimant	 with	 the	 intent	 to	 cause	 har m	 or	 offense.	 Both	 ‘intent’	 and	 ‘causation ’	 ar e	
r equir ed	for	the	tor t	of	batter y	to	occur .	
The	 act	 of	 touching	 doesn ’t	 necessarily	 have	 to	 be	 done 	 with	 the	 defendant’s	 hands	 always,	 it	 could	
be	anything	touching	the	plaintiff	such	as	throwing	hot	water	at	someone.	
The tort of assault occurs when the defendant intends to cause in the claimant’s mind a reasonable 
appr ehension	 (feeling	 of	 anxiety	 or	 fear)	 of	 an	 imminent	 har mful	 or	 offensive	 touching	 to	 the	 claimant;	
and	when	this	causes	the	claimant	to	suffer	a	r easonable	appr ehension	of	an	imminent	har m.	
F or	 e xample,	 if	 the	 defendant	 throws	 an	 iron	 ball	 at	 the	 claimant	 and	 misses	 his	 head	 as	 the	 claimant	
moves	 his	 hea d	 away	 from	 the	 dir ection	 of	 the	 iron	 ball,	 this	 amounts	 to	 assault.	 The	 per ception	 of	
the	claimant	is	impor tant.	
If the defendant points an unloaded gun at the claimant who does not know that it is unloaded and 
he	thinks	he	is	about	to	get	shot,	this	amounts	to	assault,	which	can	take	place	without	batter y .	
Likewise,	 batter y	 can	 take	 place	 without	 assault;	 for	 e xample,	 someone	 may	 hit	 another	 person	 from	
behind.	
65
False Imprisonment
The intentional tort of false imprisonment is satisfied whenever there is an intent to unlawfully confine 
or restrain the claimant in a bounded area and when this actually causes the claimant to be knowingly 
confined	 or	 r estrained	 in	 a	 bounded	 ar ea	 unlawfully .	 This	 leads	 to	 the	 total	 r estraint	 of	 liber ty	 of	 a	
person.	 F or	 e xample,	 the	 defendant	 intentionally	 locks	 the	 claimant	 in	 the	 classroom	 without	 having	
the	legal	authority	to	do	so ,	and	the	claimant	knows	he	is	trapped.	
Sometimes courts allow the actual harm to substitute for the awareness of the imprisonment - so 
even	 if	 the	 claimant	 is	 unawar e	 that	 he	 is	 trapped	 but	 suffers	 injur y ,	 the	 tor t	 of	 false	 imprisonment	 is	
satisfied.	However ,	the	claimant	should	not	be	trapped	willingly	and	consensually .
Trespass to Land 
The tort of trespass to land occurs when the defendant has the intent to interfere with the possession 
of	land	belonging	to	the	claimant.
This is done by physically invading property of the claimant without the claimant’s approval or 
consent.	 The	 invasion	 can	 happen	 with	 objects	 or	 by	 people.	 It	 includes	 invasion	 of	 some	 ar ea	 of	 air	
above	 the	 land 	 and	 some	 ar ea	 below	 the	 land.	 F or	 e xample,	 the	 defendant	 may	 litter	 the	 claimant’s	
land,	or	may	cr eate	a	drainage	outlet	below	the	land	of	the	claimant.	
Trespass to Chattels 
The tort of trespass to chattel occurs when the defendant has the intent to and does interfere with the 
lawful	possession	of	goods	belonging	to	the	claimant.
This	 is	 done	 when	 the	 defendant	 uses	 or	 inter meddles	 with	 a	 chattel	 (moveable	 personal	 proper ty),	
which	 was	 in	 the	 possession	 of	 the	 claimant	 and	 causes	 significant	 or	 perpetual	 dispossession,	
deprivation	 of	 use,	 or	 damage	 as	 to	 condition,	 quality ,	 or	 value	 of	 the	 chattel,	 or	 causes	 some	 other	
har m	to	claimant’s	legally	secur ed	inter est.	
F or	 e xample,	 if	 the	 defendant	 paints	 the	 car	 of	 claima nt	 that	 was	 parked	 on	 the	 side	 of	 the	 str eet,	
without	 the	 consent	 of	 the	 claimant	 while	 the	 claimant	 was	 away ,	 this	 amounts	 to	 tr espass	 to	 chattels.	
Conversion 
The	 tor t	 of	 conversion	 is	 somewhat	 r elated	 with	 the	 tor t	 of	 tr espass	 to	 chattels.	 Conversion	 is	 defined	
as	 an	 act	 of	 wilful	 inter fer ence,	 without	 lawful	 justification,	 with	 any	 chattel	 in	 a	 manner	 inconsistent	
with	the	right	of	another ,	wher eby	that	other	is	deprived	of	the	use	and	possession	of	it.
It occurs when the defendant intentionally uses or intermeddles with the chattel of the claimant in 
such a serious way that it becomes fair to ask for compensation or money payment for the total prior 
value	 of	 the	 chattel.	 In	 other	 words,	 the	 defendant	 is	 for ced	 to	 buy	 the	 chattel	 for	 a	 pur chase	 price	
based	 on	 the	 original	 value.	 Thus,	 the	 r emedy	 in	 conversion	 is	 for ced	 sale.	 Conversion	 is	 applicable	 in	
many	 situation s	 including	 wher e	 the	 chattel	 is	 taken,	 transfer r ed	 to	 someone	 else,	 changed,	 misused	
or	damaged.	
Unlawful harassment and Intentional Infliction of Emotional Distress
Defendant may be held liable for any act of deliberate physical harm to the victim even when no 
batter y	 or	 assault	 is	 involve d.	 F or	 e xample,	 if	 the	 defendant	 lies	 to	 the	 claimant	 that	 the	 latter ’s	
son	 met	 with	 a	 road	 accident,	 which	 causes	 ner vous	 shock	 to	 the	 claimant	 r esulting	 in	 illness,	 this	
constitutes	tor t	of	unlawful	harassment.	
Se xual	 harassment	 may	 also	 amount	 to	 tor t	 of	 unlaw ful	 harassment.	 F or	 e xample,	 if	 one	 follows	
another	 person,	 sends	 unwanted	 messages	 or	 phone	 calls;	 although	 ther e	 is	 no	 violence	 or	 thr eat	 of	
violence	involved,	this	act	amounts	to	a	tor t	of	harassment.	
66
Defamation
Defamation is defined as the publication of a statement which tends to lower a person in the estimation 
of	 the	 right-thi nking	 members	 of	 society	 generally ,	 and	 tends	 to	 make	 them	 shun	 or	 avoid	 that	 person.	
It	 can	 be	 defined	 as	 any	 intentional	 false	 communication,	 either	 written	 or	 spoken,	 that	 har ms	 a	
person ’s	 r eputation;	 decr eases	 the	 r espect,	 r egard,	 or	 confidence	 in	 which	 a	 person	 is	 held;	 or	 induces	
disparaging,	hostile,	or	disagr eeable	opinions	or	feelings	against	a	person.
It	is	inter esting	to	note	that	Defamation	can	be	both	a	tor t	as	well	as	a	crime.
Criminal Defamation: The	 act	 of	 offending	 or	 defaming	 a	 person	 by	 committing	 a	 crime	 or	 offence.	
F or	criminal	defamation,	the	liable	person	can	be	prosecuted.	It	is	studied	in	IPC	as	a	criminal	act.
Civil Defamation: 	 Civil	 defamation	 involves	 no	 criminal	 offence,	 but	 the	 claimant	 can	 sue	 the	
wrongdoer	for	compensation.	It	is	studied	under	law	of	tor ts	as	a	civil	wrong.
English	law	divides	actions	for	defamation	into	Libel	and	Slander .	
Libel	 r efers	 to	 causing	 defamation	 in	 a	 per manent	 for m,	 i.e.	 writing	 or	 pictur es.	 It	 is	 r ecognized	 as	 an	
offence	under	the	English	Criminal	L aw .
On	 the	 other	 hand,	 slander	 r efers	 to	 causing	 defamation	 in	 a	 transient	 for m	 such	 as	 spoken	 words	 or	
gestur es.	Slander	is	actionable	under	law	of	tor ts	in	the	English	law .
B.2 Negligence 
Negligence	 is	 defined	 as	 the	 br each	 of	 the	 duty	 to	 take	 car e	 which	 r esults	 in	 damages.	 Basically ,	 it	 can	
be said that the wrong-doer or the defendant has been careless in a way that harms the interest of the 
victim	 or	 the	 claimant.	 F or	 e xample,	 when	 the	 defendan t	 car ries	 out	 an	 act	 of	 constructing	 something	
on	 her	 pr emises,	 she	 owes	 a	 duty	 of	 car e	 towards	 the	 claimant	 (and	 anyone	 in	 pro ximity)	 and	 the	
standard of duty of care depends on whether the claimant was on the site or in the neighbourhood 
as	 well	 as	 whether	 the	 claimant	 was	 a	 lawful	 visitor	 or	 a	 tr espasser .	 Generally ,	 in	 order	 to	 argue	
successfully	 that	 the	 defend ant	 has	 been	 negligent,	 the	 victim	 or	 the	 claimant	 must	 establish	 thr ee	
elements	against	the	defendant	in	a	tor t	of	negligence	case	–	
1)  the defendant owes a duty of care to the victim; 
2)  there has been a breach of duty of care on part of the defendant; and 
3)		 the	br each	of	the	duty	to	car e	r esulted	in	the	har m	suffer ed	by	the	claimant.	
L et		 us	consider	these	elements	her e.
Duty of Care 
The	 duty	 of	 car e	 principle	 can	 be	 e xplained	 by	 citing	 an	 actual	 case.	 In	Donoghue v Stevenson ,	
a	 case	 decided 	 in	 England,	 the	 plaintiff	 Donoghue	 dran k	 a	 soft	 drink	 (ginger	 beer)	 manufactur ed	 by	
the	 defendant 	 Stevenson.	 The	 drink	 had	 a	 decomposed	 snail	 in	 the	 bottle	 that	 made	 the	 claimant	 ill.	
The court held that the manufacturer owed duty of care to those who are ‘reasonably foreseeable’ to 
be	affected	by	the	product.	
“In a case like the present, where the goods of the defenders are widely distributed 
throughout Scotland, it would seem little short of outrageous to make them responsible 
to members of the public for the condition of the contents of every bottle which issues 
from their works. It is obvious that, if such responsibility attached to the defenders, 
they might be called on to meet claims of damages which they could not possibly 
investigate or answer.”