ICSI Notes: Law of Torts | Legal Aptitude for CSEET PDF Download

 Page 1


242
CSEET Reference Reading Material - I
Legal Aptitude  
and Logical Reasoning
LAW OF TORTS
INTRODUCTION
The word ‘tort’ is a French equivalent of English word ‘wrong’. The word tort is derived from Latin 
word Tortum. Thus, simply stated ‘tort’ means wrong. But every wrong or wrongful act is not a tort. 
Tort is really a kind of civil wrong as opposed to criminal wrong. Wrongs, in law, are either public or  
private.
Broadly speaking, public wrongs are the violations of ‘public law and hence amount to be offences 
against the State, while private wrongs are the breaches of private law, i.e., wrongs against individuals. 
Public wrongs or crimes are those wrongs which are made punishable under the penal law belonging 
to the public law group.
“Tort” means a civil wrong which is not exclusively the breach of a contract or the breach of trust. 
The distinction between civil and criminal wrongs depends on the nature of the appropriate remedy 
provided by law.
Section 2(m) of the Limitation Act, 1963, states: “Tort means a civil wrong which is not exclusively a 
breach of contract or breach of trust.”
Salmond defines it as ”a civil wrong for which the remedy is a common law action for unliquidated 
damages and which is not exclusively the breach of a contract or the breach of a trust or other merely 
equitable obligation.”
Fraser describes it as “an infringement of a right in rem of a private individual giving a right of 
compensation at the suit of the injured party.”
Winfield says: “Tortious liability arises from the breach of duty, primarily fixed by law; this duty is towards 
persons generally and its breach is redressable by an action for unliquidated damages”.
Two important elements can be derived from l these definitions, namely: (i) that a tort is a species 
of civil injury of wrong as opposed to a criminal wrong, and (ii) that every civil wrong is not a tort. 
Accordingly, it is possible to distinguish tort from a crime and from a contract, a trust and a quasi-
contract. The distinction between civil and criminal wrongs depends on the nature of the appropriate 
remedy provided by law.
General Conditions of Liability for a Tort
As stated earlier, there is no fixed catalogue of circumstances, which along and for all-time mark the 
limit of what are torts. Certain situations have been held to be torts and will continue to be so in the 
absence of statutory repeal, and others have been held not to be torts. However, certain general 
conditions for tortuous liability can be laid down.
In general, a tort consists of some act or omission by the defendant (tortfeasor) whereby he has without 
just cause or excuse caused some harm to plaintiff. To constitute a tort, there must be:
Page 2


242
CSEET Reference Reading Material - I
Legal Aptitude  
and Logical Reasoning
LAW OF TORTS
INTRODUCTION
The word ‘tort’ is a French equivalent of English word ‘wrong’. The word tort is derived from Latin 
word Tortum. Thus, simply stated ‘tort’ means wrong. But every wrong or wrongful act is not a tort. 
Tort is really a kind of civil wrong as opposed to criminal wrong. Wrongs, in law, are either public or  
private.
Broadly speaking, public wrongs are the violations of ‘public law and hence amount to be offences 
against the State, while private wrongs are the breaches of private law, i.e., wrongs against individuals. 
Public wrongs or crimes are those wrongs which are made punishable under the penal law belonging 
to the public law group.
“Tort” means a civil wrong which is not exclusively the breach of a contract or the breach of trust. 
The distinction between civil and criminal wrongs depends on the nature of the appropriate remedy 
provided by law.
Section 2(m) of the Limitation Act, 1963, states: “Tort means a civil wrong which is not exclusively a 
breach of contract or breach of trust.”
Salmond defines it as ”a civil wrong for which the remedy is a common law action for unliquidated 
damages and which is not exclusively the breach of a contract or the breach of a trust or other merely 
equitable obligation.”
Fraser describes it as “an infringement of a right in rem of a private individual giving a right of 
compensation at the suit of the injured party.”
Winfield says: “Tortious liability arises from the breach of duty, primarily fixed by law; this duty is towards 
persons generally and its breach is redressable by an action for unliquidated damages”.
Two important elements can be derived from l these definitions, namely: (i) that a tort is a species 
of civil injury of wrong as opposed to a criminal wrong, and (ii) that every civil wrong is not a tort. 
Accordingly, it is possible to distinguish tort from a crime and from a contract, a trust and a quasi-
contract. The distinction between civil and criminal wrongs depends on the nature of the appropriate 
remedy provided by law.
General Conditions of Liability for a Tort
As stated earlier, there is no fixed catalogue of circumstances, which along and for all-time mark the 
limit of what are torts. Certain situations have been held to be torts and will continue to be so in the 
absence of statutory repeal, and others have been held not to be torts. However, certain general 
conditions for tortuous liability can be laid down.
In general, a tort consists of some act or omission by the defendant (tortfeasor) whereby he has without 
just cause or excuse caused some harm to plaintiff. To constitute a tort, there must be:
243
Legal Aptitude  
and Logical Reasoning
A wrongful act or omission of the defendant;
The wrongful act must result in causing legal damage to another; and
The wrongful act must be of such a nature as to give rise to legal remedy.
 (i) Wrongful act : The act complained of, should under the circumstances, be legally wrongful as 
regards the party complaining. In other words, it should prejudicially affect any of the above 
mentioned interests, and protected by law. Thus, every person whose legal rights, e.g., right of 
reputation, right of bodily safety and freedom, and right to property are violated without legal 
excuse, has a right of action against the person who violated them, whether loss results from 
such violation or not.
 (ii) Legal damages : It is not every damage that is a damage in the eye of law. It must be a damage 
which the law recognizes as such. In other words, there should be legal injury or invasion of the 
legal right. In the absence of an infringement of a legal right, an action does not lie. Also, 
where there is infringement of a legal right, an action lies even though no damage may have 
been caused. As was stated in Ashby v. White, (1703) 2 Ld. Raym. 938 legal damage is neither 
identical with actual damage nor is it necessarily pecuniary. Two maxims, namely: (i) Damnum 
sine injuria, and (ii) injuria sine damnum, explain this proposition.
Damnum Sine Injuria
Damnum means harm, loss or damage in respect of money, comfort, health, etc. Injuria means 
infringement of a right conferred by law on the plaintiff. The maxim means that in a given case, a man 
may have suffered damage and yet have no action in tort, because the damage is not to an interest 
protected by the law of torts. Therefore, causing damage, however substantial to another person is not 
actionable in law unless there is also a violation of a legal right of the plaintiff. Common examples are, 
where the damage results from an act done in the exercise of legal rights. Thus, if I own a shop and you 
open a shop in the neighbourhood, as a result of which I lose some customers and my profits fall off, I 
cannot sue you for the loss in profits, because you are exercising your legal right. [ Gloucester Grammer 
School case, (1410) Y.B. Hill. 11 Hen, IV to 27, pp. 21, 36]
Example: A has stored 100 Ltr of Spirit in a barrel and kept it at a place in which he is legally entitled 
to store. B kept his goods on the barrel and left it overnight. All the goods were spoilt.
In this case, there is damage to B but there is no legal injury. Therefore, this is not actionable under 
Law of Torts.
Injuria Sine Damnum
It means injury without damage, i.e., where there is no damage resulted yet it is an injury or wrong 
Lesson 2 – Elements of General Laws
Page 3


242
CSEET Reference Reading Material - I
Legal Aptitude  
and Logical Reasoning
LAW OF TORTS
INTRODUCTION
The word ‘tort’ is a French equivalent of English word ‘wrong’. The word tort is derived from Latin 
word Tortum. Thus, simply stated ‘tort’ means wrong. But every wrong or wrongful act is not a tort. 
Tort is really a kind of civil wrong as opposed to criminal wrong. Wrongs, in law, are either public or  
private.
Broadly speaking, public wrongs are the violations of ‘public law and hence amount to be offences 
against the State, while private wrongs are the breaches of private law, i.e., wrongs against individuals. 
Public wrongs or crimes are those wrongs which are made punishable under the penal law belonging 
to the public law group.
“Tort” means a civil wrong which is not exclusively the breach of a contract or the breach of trust. 
The distinction between civil and criminal wrongs depends on the nature of the appropriate remedy 
provided by law.
Section 2(m) of the Limitation Act, 1963, states: “Tort means a civil wrong which is not exclusively a 
breach of contract or breach of trust.”
Salmond defines it as ”a civil wrong for which the remedy is a common law action for unliquidated 
damages and which is not exclusively the breach of a contract or the breach of a trust or other merely 
equitable obligation.”
Fraser describes it as “an infringement of a right in rem of a private individual giving a right of 
compensation at the suit of the injured party.”
Winfield says: “Tortious liability arises from the breach of duty, primarily fixed by law; this duty is towards 
persons generally and its breach is redressable by an action for unliquidated damages”.
Two important elements can be derived from l these definitions, namely: (i) that a tort is a species 
of civil injury of wrong as opposed to a criminal wrong, and (ii) that every civil wrong is not a tort. 
Accordingly, it is possible to distinguish tort from a crime and from a contract, a trust and a quasi-
contract. The distinction between civil and criminal wrongs depends on the nature of the appropriate 
remedy provided by law.
General Conditions of Liability for a Tort
As stated earlier, there is no fixed catalogue of circumstances, which along and for all-time mark the 
limit of what are torts. Certain situations have been held to be torts and will continue to be so in the 
absence of statutory repeal, and others have been held not to be torts. However, certain general 
conditions for tortuous liability can be laid down.
In general, a tort consists of some act or omission by the defendant (tortfeasor) whereby he has without 
just cause or excuse caused some harm to plaintiff. To constitute a tort, there must be:
243
Legal Aptitude  
and Logical Reasoning
A wrongful act or omission of the defendant;
The wrongful act must result in causing legal damage to another; and
The wrongful act must be of such a nature as to give rise to legal remedy.
 (i) Wrongful act : The act complained of, should under the circumstances, be legally wrongful as 
regards the party complaining. In other words, it should prejudicially affect any of the above 
mentioned interests, and protected by law. Thus, every person whose legal rights, e.g., right of 
reputation, right of bodily safety and freedom, and right to property are violated without legal 
excuse, has a right of action against the person who violated them, whether loss results from 
such violation or not.
 (ii) Legal damages : It is not every damage that is a damage in the eye of law. It must be a damage 
which the law recognizes as such. In other words, there should be legal injury or invasion of the 
legal right. In the absence of an infringement of a legal right, an action does not lie. Also, 
where there is infringement of a legal right, an action lies even though no damage may have 
been caused. As was stated in Ashby v. White, (1703) 2 Ld. Raym. 938 legal damage is neither 
identical with actual damage nor is it necessarily pecuniary. Two maxims, namely: (i) Damnum 
sine injuria, and (ii) injuria sine damnum, explain this proposition.
Damnum Sine Injuria
Damnum means harm, loss or damage in respect of money, comfort, health, etc. Injuria means 
infringement of a right conferred by law on the plaintiff. The maxim means that in a given case, a man 
may have suffered damage and yet have no action in tort, because the damage is not to an interest 
protected by the law of torts. Therefore, causing damage, however substantial to another person is not 
actionable in law unless there is also a violation of a legal right of the plaintiff. Common examples are, 
where the damage results from an act done in the exercise of legal rights. Thus, if I own a shop and you 
open a shop in the neighbourhood, as a result of which I lose some customers and my profits fall off, I 
cannot sue you for the loss in profits, because you are exercising your legal right. [ Gloucester Grammer 
School case, (1410) Y.B. Hill. 11 Hen, IV to 27, pp. 21, 36]
Example: A has stored 100 Ltr of Spirit in a barrel and kept it at a place in which he is legally entitled 
to store. B kept his goods on the barrel and left it overnight. All the goods were spoilt.
In this case, there is damage to B but there is no legal injury. Therefore, this is not actionable under 
Law of Torts.
Injuria Sine Damnum
It means injury without damage, i.e., where there is no damage resulted yet it is an injury or wrong 
Lesson 2 – Elements of General Laws
244
CSEET Reference Reading Material - I
Legal Aptitude  
and Logical Reasoning
in tort, i.e. where there is infringement of a legal right not resulting in harm but plaintiff can still sue in  
tort.
Some rights or interests are so important that their violation is an actionable tort without proof of 
damage. Thus when there is an invasion of an “absolute” private right of an individual, there is an injuria 
and the plaintiff’s action will succeed even if there is no Domnum or damages. An absolute right is one, 
the violation of which is actionable per se, i.e., without the proof of any damage.
  Injuria sine domno covers such cases and action lies when the right is violated even though 
no damage has occurred. Thus, the act of trespassing upon another’s land is actionable even 
though it has not caused the plaintiff even the slightest harm.
Example: A casted his vote in the election. The returning officer cancelled his vote illegally. 
The action did not effect the election as the candidate voted by A has won by big majority. 
Can A sue the returning officer under Law of Torts.
Yes, there is Legal Injury in this case. Therefore, A can take action under Law of Torts.
 (iii) Legal remedy : The third condition of liability for a tort is legal remedy. This means that to constitute 
a tort, the wrongful act must come under the law. The main remedy for a tort is an action for 
unliquidated damages, although some other remedies, e.g., injunction, may be obtained in 
addition to damages or specific restitution may be claimed in an action for the detention of a 
chattel. Self- help is a remedy of which the injured party can avail himself without going to a law 
court. It does not apply to all torts and perhaps the best example of these to which it does apply 
is trespass to land. For example, if “A” finds a drunken stranger in his room who has no business 
to be there, and is thus a trespass, he (A) is entitled to get rid of him, if possible without force but 
if that be not possible with such force as the circumstances of the case may warrant.
Mens Rea
How far a guilty mind of persons is required for liability for tort?
The General principle lies in the maxim “actus non facit reum nisi mens sit rea” i.e. the act itself creates 
no guilt in the absence of a guilty mind. It does not mean that for the law or Torts, the act must be done 
with an evil motive, but simply means that mind must concur in the Act, the act must be done either 
with wrongful intention or negligence. However, the cases of absolute or strict liability are exceptions 
to this principle.
Page 4


242
CSEET Reference Reading Material - I
Legal Aptitude  
and Logical Reasoning
LAW OF TORTS
INTRODUCTION
The word ‘tort’ is a French equivalent of English word ‘wrong’. The word tort is derived from Latin 
word Tortum. Thus, simply stated ‘tort’ means wrong. But every wrong or wrongful act is not a tort. 
Tort is really a kind of civil wrong as opposed to criminal wrong. Wrongs, in law, are either public or  
private.
Broadly speaking, public wrongs are the violations of ‘public law and hence amount to be offences 
against the State, while private wrongs are the breaches of private law, i.e., wrongs against individuals. 
Public wrongs or crimes are those wrongs which are made punishable under the penal law belonging 
to the public law group.
“Tort” means a civil wrong which is not exclusively the breach of a contract or the breach of trust. 
The distinction between civil and criminal wrongs depends on the nature of the appropriate remedy 
provided by law.
Section 2(m) of the Limitation Act, 1963, states: “Tort means a civil wrong which is not exclusively a 
breach of contract or breach of trust.”
Salmond defines it as ”a civil wrong for which the remedy is a common law action for unliquidated 
damages and which is not exclusively the breach of a contract or the breach of a trust or other merely 
equitable obligation.”
Fraser describes it as “an infringement of a right in rem of a private individual giving a right of 
compensation at the suit of the injured party.”
Winfield says: “Tortious liability arises from the breach of duty, primarily fixed by law; this duty is towards 
persons generally and its breach is redressable by an action for unliquidated damages”.
Two important elements can be derived from l these definitions, namely: (i) that a tort is a species 
of civil injury of wrong as opposed to a criminal wrong, and (ii) that every civil wrong is not a tort. 
Accordingly, it is possible to distinguish tort from a crime and from a contract, a trust and a quasi-
contract. The distinction between civil and criminal wrongs depends on the nature of the appropriate 
remedy provided by law.
General Conditions of Liability for a Tort
As stated earlier, there is no fixed catalogue of circumstances, which along and for all-time mark the 
limit of what are torts. Certain situations have been held to be torts and will continue to be so in the 
absence of statutory repeal, and others have been held not to be torts. However, certain general 
conditions for tortuous liability can be laid down.
In general, a tort consists of some act or omission by the defendant (tortfeasor) whereby he has without 
just cause or excuse caused some harm to plaintiff. To constitute a tort, there must be:
243
Legal Aptitude  
and Logical Reasoning
A wrongful act or omission of the defendant;
The wrongful act must result in causing legal damage to another; and
The wrongful act must be of such a nature as to give rise to legal remedy.
 (i) Wrongful act : The act complained of, should under the circumstances, be legally wrongful as 
regards the party complaining. In other words, it should prejudicially affect any of the above 
mentioned interests, and protected by law. Thus, every person whose legal rights, e.g., right of 
reputation, right of bodily safety and freedom, and right to property are violated without legal 
excuse, has a right of action against the person who violated them, whether loss results from 
such violation or not.
 (ii) Legal damages : It is not every damage that is a damage in the eye of law. It must be a damage 
which the law recognizes as such. In other words, there should be legal injury or invasion of the 
legal right. In the absence of an infringement of a legal right, an action does not lie. Also, 
where there is infringement of a legal right, an action lies even though no damage may have 
been caused. As was stated in Ashby v. White, (1703) 2 Ld. Raym. 938 legal damage is neither 
identical with actual damage nor is it necessarily pecuniary. Two maxims, namely: (i) Damnum 
sine injuria, and (ii) injuria sine damnum, explain this proposition.
Damnum Sine Injuria
Damnum means harm, loss or damage in respect of money, comfort, health, etc. Injuria means 
infringement of a right conferred by law on the plaintiff. The maxim means that in a given case, a man 
may have suffered damage and yet have no action in tort, because the damage is not to an interest 
protected by the law of torts. Therefore, causing damage, however substantial to another person is not 
actionable in law unless there is also a violation of a legal right of the plaintiff. Common examples are, 
where the damage results from an act done in the exercise of legal rights. Thus, if I own a shop and you 
open a shop in the neighbourhood, as a result of which I lose some customers and my profits fall off, I 
cannot sue you for the loss in profits, because you are exercising your legal right. [ Gloucester Grammer 
School case, (1410) Y.B. Hill. 11 Hen, IV to 27, pp. 21, 36]
Example: A has stored 100 Ltr of Spirit in a barrel and kept it at a place in which he is legally entitled 
to store. B kept his goods on the barrel and left it overnight. All the goods were spoilt.
In this case, there is damage to B but there is no legal injury. Therefore, this is not actionable under 
Law of Torts.
Injuria Sine Damnum
It means injury without damage, i.e., where there is no damage resulted yet it is an injury or wrong 
Lesson 2 – Elements of General Laws
244
CSEET Reference Reading Material - I
Legal Aptitude  
and Logical Reasoning
in tort, i.e. where there is infringement of a legal right not resulting in harm but plaintiff can still sue in  
tort.
Some rights or interests are so important that their violation is an actionable tort without proof of 
damage. Thus when there is an invasion of an “absolute” private right of an individual, there is an injuria 
and the plaintiff’s action will succeed even if there is no Domnum or damages. An absolute right is one, 
the violation of which is actionable per se, i.e., without the proof of any damage.
  Injuria sine domno covers such cases and action lies when the right is violated even though 
no damage has occurred. Thus, the act of trespassing upon another’s land is actionable even 
though it has not caused the plaintiff even the slightest harm.
Example: A casted his vote in the election. The returning officer cancelled his vote illegally. 
The action did not effect the election as the candidate voted by A has won by big majority. 
Can A sue the returning officer under Law of Torts.
Yes, there is Legal Injury in this case. Therefore, A can take action under Law of Torts.
 (iii) Legal remedy : The third condition of liability for a tort is legal remedy. This means that to constitute 
a tort, the wrongful act must come under the law. The main remedy for a tort is an action for 
unliquidated damages, although some other remedies, e.g., injunction, may be obtained in 
addition to damages or specific restitution may be claimed in an action for the detention of a 
chattel. Self- help is a remedy of which the injured party can avail himself without going to a law 
court. It does not apply to all torts and perhaps the best example of these to which it does apply 
is trespass to land. For example, if “A” finds a drunken stranger in his room who has no business 
to be there, and is thus a trespass, he (A) is entitled to get rid of him, if possible without force but 
if that be not possible with such force as the circumstances of the case may warrant.
Mens Rea
How far a guilty mind of persons is required for liability for tort?
The General principle lies in the maxim “actus non facit reum nisi mens sit rea” i.e. the act itself creates 
no guilt in the absence of a guilty mind. It does not mean that for the law or Torts, the act must be done 
with an evil motive, but simply means that mind must concur in the Act, the act must be done either 
with wrongful intention or negligence. However, the cases of absolute or strict liability are exceptions 
to this principle.
245
Legal Aptitude  
and Logical Reasoning
Kinds of Tortious Liability
Strict or Absolute Liability Vicarious Liability Vicarious Liability of the State
Strict or Absolute Liability
In some torts, the defendant is liable even though the harm to the plaintiff occurred without intention or 
negligence on the part of defendant. In other words, the defendant is held liable without fault. These 
cases fall under the following categories:
 (i) Liability for Inevitable Accident – Such liability arises in cases where damage is done by the 
escape of dangerous substances brought or kept by anyone upon his land. Such cases are 
where a man is made by law an insurer of other against the result of his activities.
 (ii) Liability for Inevitable Mistake – Such cases are where a person interferes with the property or 
reputation of another.
 (iii) Vicarious Liability for Wrongs committed by others – Responsibility in such cases is imputed by 
law on the grounds of social policy or expediency. These case involve liability of master for the 
acts of his servant.
The rule in Rylands v. Flethcer (1868) L.R. 3 H.L. 330 is that a man acts at his peril and is the insurer of the 
safety of his neighbour against accidental harm. Such duty is absolute because it is independent of 
negligence on the part of the defendant or his servants. It was held in that case that: “If a person brings 
or accumulates on his land anything which, if it should escape may cause damage to his neighbours, 
he does so at his own peril. If it does not escape and cause damage he is responsible, however careful 
he may have been, and whatever precautions he may have taken to prevent damage.”
The facts of this case were as follows: B, a mill owner employed independent contractors, who were 
apparently competent to construct a reservoir on his land to provide water for his mill. There were old 
disused mining shafts under the site of the reservoir which the contractors failed to observe because 
they were filled with earth. The contractors therefore, did not block them. When the water was filled 
in the reservoir, it bursts through the shafts and flooded the plaintiff ’s coal mines on the adjoining 
land. It was found as a fact that B did not know of the shafts and had not been negligent, though the 
independent contractors, had been, B was held liable. Blackburn, J., observed; “We think that the true 
rule of law is that the person, who for his own purposes brings on his lands and collects and keeps there 
anything likely to do mischief if it escapes, must keep it at his peril and if, he does not do so is, prima 
facie answerable for all the damage which is the natural consequence of its escape.”
Lesson 2 – Elements of General Laws
Page 5


242
CSEET Reference Reading Material - I
Legal Aptitude  
and Logical Reasoning
LAW OF TORTS
INTRODUCTION
The word ‘tort’ is a French equivalent of English word ‘wrong’. The word tort is derived from Latin 
word Tortum. Thus, simply stated ‘tort’ means wrong. But every wrong or wrongful act is not a tort. 
Tort is really a kind of civil wrong as opposed to criminal wrong. Wrongs, in law, are either public or  
private.
Broadly speaking, public wrongs are the violations of ‘public law and hence amount to be offences 
against the State, while private wrongs are the breaches of private law, i.e., wrongs against individuals. 
Public wrongs or crimes are those wrongs which are made punishable under the penal law belonging 
to the public law group.
“Tort” means a civil wrong which is not exclusively the breach of a contract or the breach of trust. 
The distinction between civil and criminal wrongs depends on the nature of the appropriate remedy 
provided by law.
Section 2(m) of the Limitation Act, 1963, states: “Tort means a civil wrong which is not exclusively a 
breach of contract or breach of trust.”
Salmond defines it as ”a civil wrong for which the remedy is a common law action for unliquidated 
damages and which is not exclusively the breach of a contract or the breach of a trust or other merely 
equitable obligation.”
Fraser describes it as “an infringement of a right in rem of a private individual giving a right of 
compensation at the suit of the injured party.”
Winfield says: “Tortious liability arises from the breach of duty, primarily fixed by law; this duty is towards 
persons generally and its breach is redressable by an action for unliquidated damages”.
Two important elements can be derived from l these definitions, namely: (i) that a tort is a species 
of civil injury of wrong as opposed to a criminal wrong, and (ii) that every civil wrong is not a tort. 
Accordingly, it is possible to distinguish tort from a crime and from a contract, a trust and a quasi-
contract. The distinction between civil and criminal wrongs depends on the nature of the appropriate 
remedy provided by law.
General Conditions of Liability for a Tort
As stated earlier, there is no fixed catalogue of circumstances, which along and for all-time mark the 
limit of what are torts. Certain situations have been held to be torts and will continue to be so in the 
absence of statutory repeal, and others have been held not to be torts. However, certain general 
conditions for tortuous liability can be laid down.
In general, a tort consists of some act or omission by the defendant (tortfeasor) whereby he has without 
just cause or excuse caused some harm to plaintiff. To constitute a tort, there must be:
243
Legal Aptitude  
and Logical Reasoning
A wrongful act or omission of the defendant;
The wrongful act must result in causing legal damage to another; and
The wrongful act must be of such a nature as to give rise to legal remedy.
 (i) Wrongful act : The act complained of, should under the circumstances, be legally wrongful as 
regards the party complaining. In other words, it should prejudicially affect any of the above 
mentioned interests, and protected by law. Thus, every person whose legal rights, e.g., right of 
reputation, right of bodily safety and freedom, and right to property are violated without legal 
excuse, has a right of action against the person who violated them, whether loss results from 
such violation or not.
 (ii) Legal damages : It is not every damage that is a damage in the eye of law. It must be a damage 
which the law recognizes as such. In other words, there should be legal injury or invasion of the 
legal right. In the absence of an infringement of a legal right, an action does not lie. Also, 
where there is infringement of a legal right, an action lies even though no damage may have 
been caused. As was stated in Ashby v. White, (1703) 2 Ld. Raym. 938 legal damage is neither 
identical with actual damage nor is it necessarily pecuniary. Two maxims, namely: (i) Damnum 
sine injuria, and (ii) injuria sine damnum, explain this proposition.
Damnum Sine Injuria
Damnum means harm, loss or damage in respect of money, comfort, health, etc. Injuria means 
infringement of a right conferred by law on the plaintiff. The maxim means that in a given case, a man 
may have suffered damage and yet have no action in tort, because the damage is not to an interest 
protected by the law of torts. Therefore, causing damage, however substantial to another person is not 
actionable in law unless there is also a violation of a legal right of the plaintiff. Common examples are, 
where the damage results from an act done in the exercise of legal rights. Thus, if I own a shop and you 
open a shop in the neighbourhood, as a result of which I lose some customers and my profits fall off, I 
cannot sue you for the loss in profits, because you are exercising your legal right. [ Gloucester Grammer 
School case, (1410) Y.B. Hill. 11 Hen, IV to 27, pp. 21, 36]
Example: A has stored 100 Ltr of Spirit in a barrel and kept it at a place in which he is legally entitled 
to store. B kept his goods on the barrel and left it overnight. All the goods were spoilt.
In this case, there is damage to B but there is no legal injury. Therefore, this is not actionable under 
Law of Torts.
Injuria Sine Damnum
It means injury without damage, i.e., where there is no damage resulted yet it is an injury or wrong 
Lesson 2 – Elements of General Laws
244
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Legal Aptitude  
and Logical Reasoning
in tort, i.e. where there is infringement of a legal right not resulting in harm but plaintiff can still sue in  
tort.
Some rights or interests are so important that their violation is an actionable tort without proof of 
damage. Thus when there is an invasion of an “absolute” private right of an individual, there is an injuria 
and the plaintiff’s action will succeed even if there is no Domnum or damages. An absolute right is one, 
the violation of which is actionable per se, i.e., without the proof of any damage.
  Injuria sine domno covers such cases and action lies when the right is violated even though 
no damage has occurred. Thus, the act of trespassing upon another’s land is actionable even 
though it has not caused the plaintiff even the slightest harm.
Example: A casted his vote in the election. The returning officer cancelled his vote illegally. 
The action did not effect the election as the candidate voted by A has won by big majority. 
Can A sue the returning officer under Law of Torts.
Yes, there is Legal Injury in this case. Therefore, A can take action under Law of Torts.
 (iii) Legal remedy : The third condition of liability for a tort is legal remedy. This means that to constitute 
a tort, the wrongful act must come under the law. The main remedy for a tort is an action for 
unliquidated damages, although some other remedies, e.g., injunction, may be obtained in 
addition to damages or specific restitution may be claimed in an action for the detention of a 
chattel. Self- help is a remedy of which the injured party can avail himself without going to a law 
court. It does not apply to all torts and perhaps the best example of these to which it does apply 
is trespass to land. For example, if “A” finds a drunken stranger in his room who has no business 
to be there, and is thus a trespass, he (A) is entitled to get rid of him, if possible without force but 
if that be not possible with such force as the circumstances of the case may warrant.
Mens Rea
How far a guilty mind of persons is required for liability for tort?
The General principle lies in the maxim “actus non facit reum nisi mens sit rea” i.e. the act itself creates 
no guilt in the absence of a guilty mind. It does not mean that for the law or Torts, the act must be done 
with an evil motive, but simply means that mind must concur in the Act, the act must be done either 
with wrongful intention or negligence. However, the cases of absolute or strict liability are exceptions 
to this principle.
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Kinds of Tortious Liability
Strict or Absolute Liability Vicarious Liability Vicarious Liability of the State
Strict or Absolute Liability
In some torts, the defendant is liable even though the harm to the plaintiff occurred without intention or 
negligence on the part of defendant. In other words, the defendant is held liable without fault. These 
cases fall under the following categories:
 (i) Liability for Inevitable Accident – Such liability arises in cases where damage is done by the 
escape of dangerous substances brought or kept by anyone upon his land. Such cases are 
where a man is made by law an insurer of other against the result of his activities.
 (ii) Liability for Inevitable Mistake – Such cases are where a person interferes with the property or 
reputation of another.
 (iii) Vicarious Liability for Wrongs committed by others – Responsibility in such cases is imputed by 
law on the grounds of social policy or expediency. These case involve liability of master for the 
acts of his servant.
The rule in Rylands v. Flethcer (1868) L.R. 3 H.L. 330 is that a man acts at his peril and is the insurer of the 
safety of his neighbour against accidental harm. Such duty is absolute because it is independent of 
negligence on the part of the defendant or his servants. It was held in that case that: “If a person brings 
or accumulates on his land anything which, if it should escape may cause damage to his neighbours, 
he does so at his own peril. If it does not escape and cause damage he is responsible, however careful 
he may have been, and whatever precautions he may have taken to prevent damage.”
The facts of this case were as follows: B, a mill owner employed independent contractors, who were 
apparently competent to construct a reservoir on his land to provide water for his mill. There were old 
disused mining shafts under the site of the reservoir which the contractors failed to observe because 
they were filled with earth. The contractors therefore, did not block them. When the water was filled 
in the reservoir, it bursts through the shafts and flooded the plaintiff ’s coal mines on the adjoining 
land. It was found as a fact that B did not know of the shafts and had not been negligent, though the 
independent contractors, had been, B was held liable. Blackburn, J., observed; “We think that the true 
rule of law is that the person, who for his own purposes brings on his lands and collects and keeps there 
anything likely to do mischief if it escapes, must keep it at his peril and if, he does not do so is, prima 
facie answerable for all the damage which is the natural consequence of its escape.”
Lesson 2 – Elements of General Laws
246
CSEET Reference Reading Material - I
Legal Aptitude  
and Logical Reasoning
Later in the case of Read v. Lyons [(1946) 2 All. E.R. 471 (H.L.)], it has been explained that two conditions 
are necessary in order to apply the rule in Ryland v. Fletcher, these are:
 – Escape from a place of which the defendant has occupation or over which he has a control to 
a place which is outside his occupation or control or something likely to do mischief if it escapes; 
and
 – Non-natural use of Land : The defendant is liable if he makes a non-natural use of land. If either 
of these conditions is absent, the rule of strict liability will not apply.
Exceptions to the Rule of Strict Liability
The following exceptions to the rule of strict liability have been introduced in course of time, some of 
them being inherent in the judgment itself in Ryland v. Fletcher:
 (i) Damage due to Natural Use of the Land
  In Ryland v. Fletcher water collected in the reservoir in such large quantity, was held to be non- 
natural use of land. Keeping water for ordinary domestic purpose is ‘natural use’. Things not 
essentially dangerous which is not unusual for a person to have on his own land, such as water 
pipe installations in buildings, the working of mines and minerals on land, the lighting of fire in a 
fire-place of a house, and necessary wiring for supplying electric light, fall under the category 
of “natural use” of land.
 (ii) Consent of the plaintiff
  Where the plaintiff has consented to the accumulation of dangerous thing on the defendant’s 
land, the liability under the rule in Ryland v. Flethcher does not arise. Such a consent is implied 
where the source of danger is for the ‘common benefit’ of both the plaintiff and the defendant.
 (iii) Act of Third Party
  If the harm has been caused due to the act of a stranger, who is neither defendant’s servant 
nor agent nor the defendant has any control over him, the defendant will not be liable. Thus, 
in Box v. Jubh (1879) 4 Ex. D. 76, the overflow from the defendant’s reservoir was caused by 
blocking of a drain by stranger, the defendant was held not liable. But if the act of the stranger, 
is or can be foreseen by the defendant and the damage can be prevented, the defendant 
must, by due care prevent the damage. Failure on his part to avoid such damage will make him 
liable.
 (iv) Statutory Authority
  Sometimes, public bodies storing water, gas, electricity and the like are by statute, exempted 
from liability so long as they have taken reasonable care.
  Thus, in Green v. Chelzea Water Works Co. (1894) 70 L.T. 547 the defendant company had a 
statutory duty to maintain continuous supply of water. A main belonging to the company burst 
without any fault on its part as a consequence of which plaintiff ’s premises were flooded with 
water. It was held that the company was not liable as the company was engaged in performing 
a statutory duty.
 (v) Act of God
  If an escape is caused, through natural causes and without human intervention circumstances