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Ratanlal & Dhirajlal : The Law of Torts (26th Edition)/Ratanlal and Dhirajlal Law of Torts 26 Edition/CHAPTER I
General Principles/1. THE LAW OF TORTS IN INDIA

CHAPTER I

General Principles

1. THE LAW OF TORTS IN INDIA

Under the Hindu Law and Muslim Law tort had a much narrower conception than the tort of the English law. 1The
punishment of crimes in these systems occupied a more prominent place than compensation for wrongs. 2The law of
torts as administered in India in modern times is the English law as found suitable to Indian conditions and as modified
by the Acts of the Indian Legislature. 3Its origin is linked with the establishment of British Courts in India.

4 The first British Courts established in India were the Mayors Courts in the three presidency towns of Calcutta, Madras
and Bombay. These courts were established in the eighteenth century, and the charters which established them required
them "to give judgment and sentence according to justice and right". 5The Englishmen administering these courts
normally drew upon the common law and statute law of England as found suitable to Indian conditions while deciding
cases "according to justice and right". This led to introduction in these courts jurisdiction of the English common and
statute law in force at the time so far as it was applicable to Indian circumstances. 6The Supreme Courts which were
established sometime later in those three towns and which replaced the Mayors Courts were modelled on the English
pattern and had such jurisdiction and authority as the court of Kings Bench had in England by the common law of
England. The Supreme Courts were superseded by High Courts in those three towns, but the jurisdiction to administer
the English common law was continued. The law of torts is part of the common law, and it was thus that the English
law of torts came to be applied in the cities of Calcutta, Madras and Bombay. But the common law so applied by the
High Courts of Calcutta, Madras and Bombay is applied only by those courts in the exercise of their ordinary original
civil jurisdiction as distinguished from appellate jurisdiction, that is, the jurisdiction to hear appeals from decrees of
mofussil courts. As regards other courts in India, there is no express provision for the administration of the English
common law. These courts have been established by Acts almost all local, and the Acts establishing them contain each a
section which requires them, in the absence of any specific law or usage, to act according to "justice, equity and good
conscience". 7The expression "justice, equity and good conscience" was interpreted by the Privy Council to mean "the
rules of English law if found applicable to Indian society and circumstances". 8The law as stated above is also the law to
be administered by each of the High Courts in India in the exercise of its appellate jurisdiction. 9
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. 10

The law of torts or civil wrongs in India is thus almost wholly the English law which is administered as rules of justice,
equity and good conscience. The Indian courts, however, before applying any rule of English law can see whether it is
suited to the Indian society and circumstances. 11The application of the English law in India as rules of justice, equity
and good conscience has, therefore, been a selective application. 12 Further, in applying the English law on a particular
point, the Indian courts are not restricted to the common law. The English law consists both of common law and statute
law and the Indian courts can see as to how far a rule of common law has been modified or abrogated by statute law of
England. If the new rules of English statute law replacing or modifying the common law are more in consonance with
justice, equity and good conscience, it is open to the courts in India to reject the outmoded rules of common law and to
apply the new rules. It is on this reasoning that the principles of the English statute, the Law Reform (Contributory
Negligence) Act, 1945, have been applied in India although there is still no corresponding Act enacted by Parliament in
India. 13This reasoning was also applied in following the principles of rules 9 to 18 of Order 29 of the Supreme Court
Rules (English) made under section 20 of the Administration of Justice Act, 1920, to enable the court to order interim
payment in a tort action, although there are no statutory rules corresponding to the aforesaid rules in India. 14 And on
similar reasoning, the Nagpur High Court refused to apply the doctrine of common employment in so far as it was
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abrogated in England by the Employers Liability Act of 1880 even before the enactment of the corresponding
Employers Liability Act by the Indian Legislature in 1938. 15 On the other hand the Allahabad High Court has held that
the rule enacted in the English statute, the Law Reform (Married Woman and Tort-feasors) Act, 1935, that although it is
possible to bring separate actions against joint tort-feasors, the sums recoverable under these judgments by way of
damages are not in the aggregate to exceed the amount of the damages awarded by the judgment first given is not in
consonance with any principle of justice, equity and good conscience and is not applicable in India. 16In this context it
is also wise to remember that the English common law itself is imbued with flexibility and capacity to adapt itself to
new situations and the courts in our country need not carry the notion that in applying the common law they have no
authority to take a progressive view. As stated by Lord Scarman: "The common law, which in a constitutional context
means judicially developed equity, covers everything which is not covered by statute. It knows no gaps: there can be no
casus omissus. 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. But
whatever the court decides to do, it starts from a base-line of existing principle and seeks a solution consistent with or
analogous to a principle or principles recognised. The real risk to the common law is not its movement to cover new
situations and new knowledge but lest it should stand still halted by a conservative judicial approach. If that should
happen, there would be a danger of the law becoming irrelevant to the consideration, and inept in its treatment of
modern social problems. Justice would be defeated. The common law has, however, avoided this catastrophe by the
flexibility given it by generations of judges". 17

The decision of the Supreme Court, 18which laid down that an enterprise engaged in a hazardous or inherently
dangerous industry owes an absolute and non-delegable duty to the community shows that if an occasion arises the
court can be more progressive than the English Courts 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 cannot 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." 19More recently 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 primitive
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." 20

1 PRIYANATH SEN, Hindu Jurisprudence, p. 336; KASHI PRASAD SAXENA, Hindu Law and Jurisprudence, pp. 170, 171; ABDUL
RAHIM, Muhamadan Jurisprudence, p. 360; RAMASWAMY IYER'S Law of Torts, 7th edition, (1975), Appendix, pp. 591, 592.

2 PRIYANATH SEN, Hindu Jurisprudence, p. 336.

3 SETALVAD, The Common Law in India, p. 110. SIR FREDERICK POLLOCK prepared a draft code of torts for India but it was never
enacted into law; see 5 LQR 362. Vidya Devi v. M.P. State Road Transport Corporation, AIR 1975 MP 89 [LNIND 1974 MP 54]: 1974
ACJ 374 (378). The Indian Law of Torts based on English law is continued by Article 372 of the Constitution which has been interpreted to
continue also the Common Law Principles applied in India; SETALVAD, The Common Law in India, pp. 225, 226; Building Supply
Corporation v. Union of India, AIR 1965 SC 1061 [LNIND 1964 SC 337](1068): (1965) 2 SCWR 124 [LNIND 1964 SC 337] : (1965) 2
SCA 68 [LNIND 1964 SC 337] : (1967) 2 SCR 289.

4 The whole of this para with only a little variation has been adopted by SETH, J., in Union Carbide Corporation v. Union of India, 1988
MPLJ 540.

5 Letters Patent of September 24, 1726, the 13th year of the Reign of George I.

6 SETALVAD, The Common Law in India, pp. 12, 13; Advocate General of Bengal v. Ranee Surnomoye Dossee, (1863) 9 MIA 387 (426,
427).

7 For example, section 6 of the Central Provinces Laws Act, 1875.

8 Waghela Rajsanji v. Shekh Masludin, (1887) 14 IA 89, 96; (1887) 11 ILR 551 (561)Bom ; Baboo Thakur Dhobi v. Mst. Subanshi, (1942)
Nag LJ 199 : ILR (1942) Nag 650 : AIR 1942 Nag 99 ; Vidya Devi v. M.P. State Road Transport Corporation, AIR 1975 MP 89 [LNIND
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1974 MP 54]: 1974 ACJ 374 (378). The Supreme Court in Rattan Lal v. Vardesh Chander, AIR 1976 SC 588 [LNIND 1975 SC 495](597):
(1976) 2 SCC 103 [LNIND 1975 SC 495] : (1976) 2 SCR 906 [LNIND 1975 SC 495] has held that in free India principles of justice, equity
and good conscience should not be equated to English Law. The ruling in Rattanlal's case was given in the context of necessity of notice for
forfeiture of a lease and not in the context of application of the English Law of torts. Rattanlal's case cannot be taken to have forbidden the
application of the English Law of torts as is found suitable to Indian conditions which came to be introduced in India during the British
period as principles of justice, equity and good conscience.

9 As to Calcutta, Madras and Bombay, see, Letters Patent, Clause 21; as to Allahabad, Patna, Lahore and Nagpur, see, Letters Patent,
Clause 14.

10 Union Carbide Corporation v. Union of India, 1988 MPLJ 540.

11 See, the observations of KRISHNA AIYAR, J., in the context of the tort of conspiracy in Rohtas Industries Ltd. v. Rohtas Industries
Staff Union, (1976) 2 SCC 82 [LNIND 1975 SC 523] (93): AIR 1976 SC 425 [LNIND 1975 SC 523]"We cannot incorporate English torts
without any adaptation into Indian Law."

12 Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai, (1987) 3 SCC 238 : AIR 1987 SC 1690 [LNIND 1987 SC 472].

13 Vidya Devi v. M.P. State Road Transport Corporation, AIR 1975 MP 89 [LNIND 1974 MP 54]: 1974 ACJ 374 (378, 379). (G.P.
SINGH, J.).

14 Union Carbide Corporation v. Union of India, 1988 MPLJ 540.

15 Secretary o of State v. Rukhminibai, AIR 1937 Nagpur 354 : ILR (1938) Nag 54: 174 IC 401.

16 Nawal Kishore v. Rameshwar, AIR 1955 All 594 [LNIND 1955 ALL 31](596). The law in England was also later altered by the Civil
Liability Contribution Act, 1978, see, p. 237 post.

17 Mcloughlin v. O'Brian, (1982) 2 Aller 298 (310): (1983) 1 AC 410: (1982) 2 WLR 982(HL). Recently the House of Lords judicially
modified the common law rule that money paid under mistake of law cannot be recovered back by holding that levies and taxes paid to a
local authority under ultra vires regulations can be recovered back as of right. In holding so LORD GOFF who delivered the leading speech
for the majority was aware of the existence of a boundary separating legitimate development of the law by the judges from legislation. But
he said that that boundary was not firmly or clearly drawn and varied from case to case otherwise a number of leading cases would never
have been decided the way they were. LORD GOFF was also conscious that however compelling the principle of justice "it would never be
sufficient to persuade a government to promote its legislative recognition by parliament; caution, otherwise known as the Treasury, would
never allow this to happen." The case illustrates the extent to which the English judges can go to reform the common law: Woolwich
Building Society v. Inland Revenue Commissioners (No. 2), (1992) 3 Aller 737: (1993) AC 70: (1992) 3 WLR 366, pp. 760, 761, 763.(HL)
The Indian law had long back taken that view. See, footnote 61, p. 10.

18 M.C. Mehta v. Union of India, AIR 1987 SC 1086 [LNIND 1986 SC 539]: (1987) 1 SCC 395 [LNIND 1986 SC 539], p. 420: (1987) 1
ACC 157.

19 M.C. Mehta v. Union of India, AIR 1987 SC 1086 [LNIND 1986 SC 539]: (1987) 1 SCC 395 [LNIND 1986 SC 539], p. 420: (1987) 1
ACC 157. The development of the common law in our country need not be always on the same lines as in England for the conditions in the
two countries are not the same. As recently observed by the Privy Council: "The ability of the Common law to adopt itself to the differing
circumstances of the countries where it has taken root is not a weakness but one of its strengths" : Invercargill City Council v. Hamlin,
(1996) 1 Aller 756, p. 764: (1996) AC 624: (1996) 2 WLR 367.

20 Jay Laxmi Salt Works (P) Ltd. v. State of Gujarat, (1994) 4 SCC 1 : 1994 (3) JT 492, p. 501SC.
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Ratanlal & Dhirajlal : The Law of Torts (26th Edition)/Ratanlal and Dhirajlal Law of Torts 26 Edition/CHAPTER I
General Principles/2. NATURE OF TORT/2(A) Definition of Tort

2. NATURE OF TORT

2(A) Definition of Tort

The term tort is the French equivalent of the English word wrong and of the Roman Law term delict. It was introduced
into the English law by Norman jurists. The word tort is derived from the Latin term tortum to twist, and implies
conduct which is twisted or tortious. 21It now means a breach of some duty independent of contract giving rise to a civil
cause of act ion and for which compensation is recoverable. In spite of various attempts an entirely satisfactory
definition of tort still awaits its master. To provide a 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. 22 A civil
injury for which an act ion for damages will not lie is not a tort, e.g., public nuisance, for which no action for damages
will lie by a member of the public. 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. 23Grant
of exemplary damages 24 in certain cases will show that deterrence of wrong-doers is also another aim of the law of
torts.

21 The first reported use of the word tort is in Boulton v. Hardy, (1597) [Link]. 547, 548 : SALMOND and HEUSTON, Law of Torts,
20th edition, (1992), footnote 54. Also see, Union of India v. Sat Pal Dharam Vir, AIR 1969 J & K 128 (129) : 1969 Kash LJ 1; Common
Cause, a Registered Society v. Union of India, (1999) 5 JT 237, p. 273: AIR 1999 SC 2979 [LNIND 1999 SC 637], p. 3004: (1999) 6 SCC
667 [LNIND 1999 SC 637].

22 Some other definitions are given below: "Tortious liability arises from the breach of a duty primarily fixed by law; this duty is towards
persons generally and its breach is redressible by an act ion for unliquidated damages." WINFIELD and JOLOWICZ, on Tort, (12th edition,
1984), p. 3. A tort is "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." SALMOND & HEUSTON, Law of Torts (1992), 20th
edition, pp. 14, 15. In his Law of Torts (15th edition, pp. 14, 15) SIR FREDERICK POLLOCK thus sums up the normal idea of tort: "Every
tort is an act or omission (not being merely the breach of a duty arising out of a personal relation, or undertaken by contract) which is related
in one of the following ways to harm (including interference with an absolute right, whether there be measurable actual damage or not),
suffered by a determinate person: (a)

23 G. WILLIAMS, The Aims of the Law of Torts, (1951) 4 Current Legal Problems, 137.

24 Chapter IX, title 1(D)(ii), p. 202.

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Ratanlal & Dhirajlal : The Law of Torts (26th Edition)/Ratanlal and Dhirajlal Law of Torts 26 Edition/CHAPTER I
General Principles/2. NATURE OF TORT/2(B) Tort and Contract

2. NATURE OF TORT

2(B) Tort and Contract

There is a well-marked 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
must also be distinguished from a pure breach of contract. First, 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
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 a contract, the duty is fixed by the will and consent of the parties, and it is owed to a
definite person or persons. 25Thus, if A assaults B, or damages Bs property without lawful cause or excuse, it is a tort.
Here the duty violated is a duty imposed by the law, and that is the duty not to do unlawful harm to the person or
property of another. But if A agrees to sell goods to B for a price, and either party fails to perform the contract, the case
is one of a breach of contract. Here there is no duty owed by A except to B, and none owed by B except to A. The duty
that is violated is a specific duty owed by either party to the other alone, as distinguished from a general duty owed to
the community at large. 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 as a measure of 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
plaintiffs injury, he may be awarded aggravated damages. 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. 26A clause in a contract limiting liability
cannot be relied upon by a person who is not a party to that contract and incurs liability in tort. 27Another distinction
that may be mentioned is that the law of torts is aimed at allocation or prevention of losses whereas the law of contract
aims to see that the promises made under a contract are performed.

The same act may amount to a tort and a breach of contract. Persons, such as carriers, solicitors, or surgeons, who
undertake to discharge certain duties and voluntarily enter into contracts for the due performance thereof, will be liable
for neglect or unskillfulness either in an action for a breach of contract or in tort 28 to a party to the contract or in tort
only to a person not a party to the contract who suffers injury. The breach of such contracts amounts also to a tort
because such persons would be equally liable even if there was no contract as they undertake a duty independently of
any contract. A father employs a surgeon to attend on his son. The son is injured by unskilful treatment. Here there is a
contract between the father and the surgeon, but none between the son and the surgeon. The father, therefore, may sue
the surgeon in contract, but the son can sue him only in tort. 29In the celebrated case of Donoghue v. Stevenson, 30a
manufacturer who sold substandard article to a retailer who sold it to a customer was held liable to a friend of the
customer who after consuming it became ill. The manufacturer was under a contractual duty to the retailer and was in
breach of that duty but he also owed a duty in tort to take reasonable care not to harm the consumer.

The aforesaid distinctions between a tort and a contract though fundamentally sound are getting blurred in certain areas.
Although normally a duty in tort is independent of any consent or agreement and is fixed by the law there are cases
where some sort of prior consent or agreement on the part of the defendant is necessary. The more onerous duty of care
owed by an occupier to visitors 31 as distinguished from the duty owed to trespassers is based on the permission granted
to the visitor to enter upon the occupiers premises. Similarly, the duty of care owed to a person advised by a gratuitous
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advisor, who is placed in such a position that others may reasonably rely upon his judgment or skill, has been described
as "equivalent to contract" and is dependant upon the advisors agreeing to give advice in circumstances in which but for
the absence of consideration there would be a contract. 32An occupiers duty to visitors noticed above also furnishes an
example of a tort duty which can be curtailed by agreement whether or not the agreement amounts to contract. In
Ashdown v. Samuel Williams & Sons Ltd., 33it was held that an occupier of land can restrict or exclude any liability that
he may otherwise incur to any licensee of his including his liability for negligence by conditions framed and made
known to the licensee. Again although it is theoretically correct to say that in contract the duties are primarily fixed by
the parties but in practice the use of standard form agreements and statutory regulation of contractual terms have
curtailed to a large extent the freedom of the parties to settle the duties under a contract. 34In the same context it may be
observed that the fundamental duty in a contract to perform the promise like a tort duty comes into being by mere force
of the law. 35Another similarity that may be noticed is that although at the initial stage a duty in tort is towards persons
generally but after there is a breach of that duty, the duty to pay compensation in tort is like a duty in contract owed to a
determinate person or persons.

In the days preceding the rise of contract a person pursuing a "common calling", i.e., a farrier, a smith, an inn-keeper, a
surgeon and a common carrier was liable in damages for failure to exercise that skill which was normally expected from
persons pursuing that calling and though later it became possible for one who entered into a contract with these persons
to sue them in contract, a separate action in tort for breach of the duty imposed on them by law survived giving rise to
concurrent remedies in tort and contract. 36Another distinction that was drawn was between damage to property or
person and economic loss; the former was thought to be more concerned with tort and the latter with contract. 37The list
of professions comprised in "common calling" was not extended to cover comparatively new professions such as
stock-brokers, solicitors and architects, 38who were held liable to their clients only in contract and not in tort. 39 Recent
decisions have removed these anomalies and the rule emerging is that if the plaintiff would have had a cause of act ion
in tort had the work been performed without any contract, e.g., gratuitously, the existence of the contract does not
deprive him of that remedy. 40It is now accepted that there may be concurrent contractual and tortious duties owed to
the same plaintiff who has a choice of proceeding either in tort or contract 41 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. 42Thus, it has now been held that a
solicitor is liable both in tort and contract to his client for negligent advice. 43Presumably other professional men like
stock-brokers and architects will now be in the same position as solicitors. 44In Caparo Industries Plc. v. Dickman,
45Lord 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." 46After referring to
these observations the Court of Appeal in a case relating to an insurance broker said: "This principle applies as much to
insurance brokers or to those who exercise any other professional calling and to other professional activities which they
carry on besides giving advice." 47The judgment of Oliver J., in Midland Bank Trust Co. Ltd. v. Hett Stubbs & Kemp (a
firm), 48met the appreciation and approval of the House of Lords in Henderson v. Merrett Syndicates Ltd., 49where Lord
Goff observed: "As a matter of principle it is difficult to see why concurrent remedies in tort and contract, if available
against the medical profession should not also be available against members of other professions whatever form the
relevant damage may take." 50

In cases "arising out of contract equity steps in and tort takes over and imposes liability upon the defendant for
unquantified damages for the breach of the duty owed by the defendant to the plaintiff" said the Supreme Court in
Manju Bhatia (Mrs.) v. New Delhi Municipal Council. 51In this case, a builder sold flats in a building, top four floors of
which were demolished by the Municipal Council as they were constructed in violation of the Building Regulations.
The purchasers of the flats which were demolished were not informed of the illegality by the builder. The Supreme
Court held that each purchaser was entitled to return of the amount paid by him plus the escalation charges and having
regard to all the circumstances each flat owner was allowed to receive Rs. Sixty lakhs from the builder. This case can be
taken to be an authority that damages in tort can be allowed against a builder.
 Page 7

An exemption clause in a contract will also be available to the defendant in a tort act ion provided it is widely worded
and specifically excludes or limits the liability for damages due to negligence. 52A concurrent or alternative liability in
tort will not be admitted if its effect would be to permit the plaintiff to circumvent or escape a contractual exclusion or
limitation of liability for act or omission that would constitute the tort. 53

Recent advance in the law of negligence allows a plaintiff although his person or property has not been injured to
recover economic loss suffered by him by the negligent act of the defendant in committing a breach of contract entered
into between him and a third party provided there is a close degree of proximity and the loss suffered is a direct and
foreseeable result of the defendants negligence. 54All this led to the observation that we are moving towards the
principle that every breach of contract which might with reasonable care have been avoided is also a tort to a person
foreseeably affected thereby including even the parties to the contract. 55But the development of this principle, in so far
as it covers parties to the contract, got a set back from the Privy Council decision in Tai Hing Cotton Mill Ltd. v. Liu
Chang Hing Bank Ltd., 56where in the context of a relationship of banker and customer, their Lordships observed that
they did not believe that there was anything to the advantage of the laws development in searching for a liability in tort
where the parties were in contractual relationship particularly so in a commercial relationship. The Privy Council case
was followed by the Court of Appeal in a case of master and servant where the terms of employment were regulated by
contract. It was held that where a particular duty of care on the part of the master not to cause economic loss to the
servant did not arise out of any express or implied term of the contract, it could not be inferred under the law of torts.
57Recently the Privy Council, in the context of a contract of guarantee, observed that the tort of negligence has not
subsumed all torts or does not supplant the principles of equity or contradict contractual promises or complement the
remedy of judicial review or supplement statutory rights. 58More recently the Privy Council observed: "The House of
Lords has also warned against the danger of extending the ambit of negligence so as to supplant or supplement other
torts, contractual obligations, statutory duties or equitable rules in relation to every kind of damage including economic
loss." 59

25 See, Jay Laxmi Salt Works (P) Ltd. v. State of Gujarat, (1994) 4 SCC 1 : (1994) 3 JT 492, p. 500: 1999 ACJ 902.

26 Rookes v. Barnard, (1964) AC 1129 (1221): (1964) 2 WLR 269: (1964) 1 Aller 367(HL) ; Cassell and Co. Ltd. v. Broome, (1972) AC
1027: (1972) 1 Aller 601(HL).

27 Midland Silicones Ltd. v. Scruttons Ltd., (1960) 2 Aller 737: (1961) 1 QB 106: (1960) 3 WLR 372: 104 SJ 603, confirmed in (1962) 1
Aller 1.

28 See, text and notes 41 to 50, pp. 7-8.

29 Gladwell v. Steggall, (1839) 5 Bing 733NC : 8 LJCP 361. But, see, Klaus Mittelbachert v. The East India Hotels Ltd., AIR 1997 Del 201
[LNIND 1997 DEL 27], p. 230 (It was held that beneficiary to the contract can also sue in contract).

30 Donoghue v. Stevenson, (1932) AC 562: 48 TLR 494(HL). This case finally exploded the "privity of contract fallacy" that if A undertook
a contractual obligation towards B, and his non-performance or mis-performance of that obligation resulted in damage to C, then C could not
sue A unless he could show that A had undertaken towards him the same obligation as he had assumed towards B. See, SALMOND &
HEUSTON, Law of Torts, 18th edition, (1981), p. 9.

31 'Visitors' under the Occupiers' Liability Act, 1957 are those persons who would at common law be treated as invitees or licensees.

32 Hedley Byrne & Co. v. Heller and Partners Ltd. , (1964) AC 465 (530): (1963) 3 WLR 101: (1963) 2 Aller 575.

33 Ashdown v. Samuel Williams & Sons Ltd., (1957) 1 QB 409: (1957) 1 Aller 35.

34 "Due to change in political outlook and as a result of economic compulsions, the freedom to contract is now being confined gradually to
narrower and narrower limits" I.S. & W. Products v. State of Madras, AIR 1968 SC 478 [LNIND 1967 SC 263](484, 485): (1968) SCWR
808 : (1968) 1 SCR 479 [LNIND 1967 SC 263]. See further, similar observations in Omay v. City of London Real Property, (1982) 1 Aller
660 (660)(HL) (LORD HAILSHAM L.C.).

35 "A contract is an obligation attached by the mere force of the law to certain acts of the parties." HAND, J., in Hotchkiss v. National City
Bank, (1911) 200 Fed. 287; HOHFELD, Fundamental Legal Conceptions, (edited by W. W. COOK), p. 31. "It is a misconception to say that
obligations arising under a contract are created by the parties and not by the law. Parties merely settle the terms of a contract, but the
obligation to carry out the terms arises from section 37 of the Indian Contract Act, 1872 which enacts that parties to a contract must either
 Page 8

perform or offer to perform their respective promises, unless such performance is dispensed with or excused under the provisions of this Act
or of any other law" :M/s Shri Ganesh Trading Co., Saugar v. State of Madhya Pradesh, 1972 MPLJ 864, p. 883(FB) (G.P. SINGH, J.)

36 STREET, Torts, 6th edition, pp. 210, 211. For example, see, Heren II (1967) 3 Aller 686 (common carrier); Constantine v. Imperial
Hotels, (1944) 2 Aller 171(Inn Keeper): 1994 KB 693; Fish v. Kapur, (1948) 2 Aller 176(Doctor).

37 FLEMING, Law of Torts, 6th edition, p. 168. Everyone owes a duty not to damage another's person or property hence a cleaner who
was employed by the plaintiff to clean his chandelier and who negligently allowed it to drop from the ceiling was held liable in tort although
cleaning was not a common calling; Jackson v. May Fair Window Cleaning Co. Ltd., (1952) 1 Aller 215. For economic loss, see, the case of
solicitor; Groom v. Crocker, (1938) 2 Aller 394: (1939) 1 KB 194.

38 STREET, Torts, 6th edition, p. 211.

39 Groom v. Crocker, (1938) 2 Aller 384(Solicitor): (1939) 1 KB 194: 54 TLR 861; Bagot v. Stevens Scanlar & Co., (1964) 3 Aller
577(Architect): (1964) 3 WLR 1162.

40 FLEMING, Law of Torts, 6th edition, pp. 168 (169).

41 Coupland v. Arabian Gulf Petroleum Co., (1983) 3 Aller 226, p. 228 (CA): (1983) 1 WLR 1136. The election may be made at any time
before judgment; Mahesan v. Malaysia Government Officers Co-operative Housing Society Ltd., (1978) 2 Aller 405 (411)(PC) (1979) AC
374: (1978) 2 WLR 444 (Case of money had and received and fraud).

42 Jarvis v. Moy, (1936) K.B. 399 (Stockbroker flouting specific instructions).

43 Midland Bank Trust Co. Ltd. v. Hett., Stubbs & Kemp, (1978) 3 Aller 571: (1978) 3 WLR 167.

44 Bagot v. Stevens Scanlon & Col., (1964) 3 Aller 577 holding the contrary for Architect is no longer good law. See, WINFIELD &
JOLOWICZ, Torts, 12th edition, (1984), p. 4; SALMOND & HEUSTON, Torts, 20th edition, (1992), p. 13.

45 (1990) 1 Aller 568: (1990) AC 605(HL).

46 (1990) 1 All ER 568, p. 575.

47 Punjab National Bank v. de Boinville, (1992) 3 Aller 104, p. 117(CA): (1992) 1 WLR 1138.

48 See footnote 43, supra.

49 (1994) 3 Aller 506: (1995) 2 AC 145: (1994) 3 WLR 761(HL).

50 (1994) 3 Aller 506, p. 530.

51 AIR 1998 SC 223 [LNIND 1997 SC 808], p. 227: (1997) 6 SCC 370 [LNIND 1997 SC 1696].

52 White v. Warrick, (1953) 2 Aller 1021: (1953) 1 WLR 1285(CA) ; Hall v. Brooklands Club, (1933) 1 KB 205 (213).

53 Henderson v. Merrett Syndicates Ltd., supra, p. 530.

54 Ross v. Counters, (1979) 3 Aller 580: (1980) Ch 297: (1979) 3 WLR 605; Junior Books Ltd. v. Veitchi Co. Ltd., (1982) 3 Aller 201(HL).
See, p. 467, post.

55 WINFIELD & JOLOWICZ, Tort, 12th edition, p. 7.

56 (1985) 2 Aller 947 (957): (1986) AC 519: (1986) 1 WLR 392(PC).

57 Reid v. Rush & Tompkins Group Plc, (1989) 3 Aller 228: (1990) 1 WLR 212: (1989) 2 Lloyd'sRep 167(CA).

58 China and South Sea Bank Ltd. v. Tan, (1989) 3 Aller 839, p. 841(PC).

59 Downsview Nominess v. First City Corp. Ltd., (1993) 3 Aller 626, p. 638(PC) (A receiver or manager of a company appointed by
debenture holders has only to act in good faith). Here the Privy Council made reference to CBS Songs Ltd. v. Amstrad Consumer Electronics
plc, (1988) 2 Aller 484, p. 497(HL) ; Caparo Industries (P) Ltd. v. Dickman, (1990) 1 Aller 568(HL) and Murphy v. Brentwood District
Council, (1990) 2 Aller 908: (1991) 1 AC 398(HL).
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Ratanlal & Dhirajlal : The Law of Torts (26th Edition)/Ratanlal and Dhirajlal Law of Torts 26 Edition/CHAPTER I
General Principles/2. NATURE OF TORT/2(C) Tort and Quasi-Contract

2. NATURE OF TORT

2(C) Tort and Quasi-Contract

Quasi -contracts cover those situations where a person is held liable to another without any agreement for money or
benefit received by him to which the other person is better entitled. According to the orthodox view the judicial basis of
the obligation under a quasi -contract is a hypothetical contract which is implied by law and this is the reason why the
subject is treated along with contract. But according to the radical view which is to be preferred, the obligation is sui
generis and its basis is prevention of unjust enrichment. 60In other words, the obligation under a quasi -contract is
imposed by the law for the reason that the defendant has been unjustly enriched at the expense of the plaintiff. Quasi
-contract differs from tort in that there is no duty owed to persons generally for the duty to repay money or benefit
received is owed to a definite person or persons; and the damages recoverable are liquidated damages and not
unliquidated damages as in tort. On both these aspects quasi -contract has similarity with contract. Quasi -contract
resembles tort and differs from contract on one aspect that the obligation in it as in tort is imposed by the law and not
under an agreement as in contract. There is one aspect in which quasi -contract differs from both tort and contract. This
can be explained by taking a familiar example of quasi -contract that when A pays money under a mistake to B, B is
under an obligation to refund it to A, even though the payment is voluntary and is not induced by any fraud or
misrepresentation emanating from B. 61In this illustration it cannot be said that there was any primary duty on B not to
accept the money paid to him under a mistake and the only duty on him is the remedial or secondary duty to refund the
money to A; but in tort as also in contract there is always a primary duty the breach of which gives rise to the remedial
duty to pay compensation. 62

60 ANSON, English Law of Contract, 22nd edition, p. 603. United Australia Ltd. v. Barclays Bank Ltd., (1947) AC 1 (LORDATKIN) (27);
Fibrosa Spolka Akcyjna v. Fairbairn Lawson Cambe Barbour Ltd., (1943) AC 32, (61) (LORDWRIGHT); Westdeutsche Landesbank
Girozentrale v. Islington London BC, (1996) 2 Aller 961: 1996 AC 669 (HL), p. 996; Thomas Abraham v. National Tyre & Rubber Co., AIR
1974 SC 602 (606): (1973) 3 SCC 458 : (1972) 1 SCWR 372. The subject of guasi-contracts is dealt with in Chapter V of the Indian
Contract Act. For a recent case on unjust enrichment, see,Lipkin Gorman (a firm) v. Karpnale Ltd., (1992) 4 Aller 521: (1991) 2 AC
548(HL) (A thief gambled with stolen money and lost. It was held that the owner could recover the money from the person who won in
gambling from the thief).

61 Under the English law till recently the mistake had to be one of fact and not of law. Under the Indian law, the mistake may be even one
of law (Section 70, Contract Act ) : Sales Tax Officer, Banaras v. Kanhaiyalal Mukund Lal Saraf, AIR 1959 SC 135 [LNIND 1958 SC
107]: 1959 SCR 1350 [LNIND 1958 SC 107]: 1959 SCJ 53 [LNIND 1958 SC 107]. The English law also started moving in the same
direction. In Woolwich Building Society v. Inland Revenue Commissioners (no. 2), (1992) 3 Aller 737: (1992) 3 WLR 366: (1993) AC
70(HL), it was held that money paid as tax under ultravires regulations can be recovered back). More recently it has been held that there is a
general right to recover money paid under a mistake, whether of fact or law, subject to the defences available in the law of restitution :
Kleinwort Benson Ltd. v. Lincoln City Council, (1998) 4 Aller 513(HL). Kanhaiyalal's case was decided by a bench of 5 judges and was
approved by a 7-judge bench in the State of Kerala v. Aluminium Industries Ltd., (1965) 16 STC 689 [LNIND 1965 KER 88]: 1965 Kerlt
517(SC). In Mafatlal Industries Ltd. v. Union of India, (1996) 9 SCALE 457 [LNIND 1996 SC 2970] : (1996) 11 JT 283 [LNIND 1996 SC
2970]: (1997) 5 SCC 536 [LNIND 1996 SC 2186], it has been held that refund can be allowed only if the burden has not been passed on to
another person.

62 WINFIELD and JOLOWICZ, Tort, 12th edition, (1984), p. 8.

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Ratanlal & Dhirajlal : The Law of Torts (26th Edition)/Ratanlal and Dhirajlal Law of Torts 26 Edition/CHAPTER I
General Principles/2. NATURE OF TORT/2(D) Tort and Crime

2. NATURE OF TORT

2(D) Tort and Crime

A tort is also widely different from a crime. First, a tort is an infringement or privation of the private or civil rights
belonging to individuals considered as individuals; whereas a crime is a breach of public rights and duties which affect
the whole community considered as a community. Secondly, in tort, the wrongdoer has to compensate the injured party:
whereas, in crime, he is punished by the State in the interests of society. Thirdly, in tort, the act ion is brought by the
injured party: in crime, the proceedings are conducted in the name of the State and the guilty person is punished by the
State. Criminal Courts are authorised within certain limits and in certain circumstances to order payment of a sum as
compensation to the person injured out of the fine imposed on the offender. 63The compensation so awarded resembles
the award of unliquidated damages in a tort action but there is a marked difference. The award of compensation in a
criminal prosecution is ancillary to the primary purpose of punishing the offender but in a tort act ion generally it is the
main purpose. Only exemplary damages allowed in a tort action are punitive in nature and one of the reasons for
severely restricting the categories of cases in which they can be awarded is that they import a criminal element in civil
law without proper safeguards. 64

The Bombay High Court has viewed the difference from the perspective of the nature of punishment and sanctions
imposed. The court observed that "it is fundamental principal (sic) that what constitutes crime is essentially a matter of
statute law. Word "crime is not defined precisely in the penal Code. A crime has to be distinguished from a tort or a
civil wrong. The distinction consists in the nature of the sanction that is attached to each form of liability. In the case of
a crime, the sanction is in the form of punishment while in the case of a tort or a civil wrong the sanction is in the form
of damages or compensation to the person injured. Primarily, the purpose of punishment is deterrence. The purpose of
compensation, however, is recompense". 65There is, however, a similarity between tort and crime at the primary level.
In criminal law also the primary duty not to commit an offence for example murder like any primary duty in tort is in
rem and is imposed by the law.

The same set of circumstances will, in fact, from one point of view, constitute a tort, while, from another point of view,
amount to a crime. In the case, for instance, of an assault, the right violated is that which every man has, that his bodily
safety shall be respected, and for the wrong done to this right the sufferer is entitled to get damages. But this is not all.
The act of violence is a menace to the safety of society generally, and will therefore be punished by the State. Where the
same wrong is both a crime and a tort (e.g., assault, libel, theft, mischief to property) its two aspects are not identical; its
definition as a crime and as a tort may differ; what is a defence to the tort (as in libel the truth) may not be so in the
crime and the object and result of a prosecution and of an action in tort are different. The wrongdoer may be ordered in
a civil act ion to make compensation to the injured party, and be also punished criminally by imprisonment or fine.
There was a common law rule that when a tort was also a felony the offender could not be sued in tort until he had been
prosecuted for the felony or a reasonable excuse had been shown for his non-prosecution. 66This rule has not been
followed in India 67 and has been abolished also in England. 68

Cases may easily be put showing that a transaction may involve a criminal, also a tortious element, and lastly, an
element of quasi -contract so that the offender may be prosecuted for a criminal offence and sued for damages in an
action on tort or sued for money had and received by him. Suppose that a person fraudulently obtains goods under
circumstances which would render him liable to be indicted, and that he afterwards sells the goods and receives the
proceeds of their sale, here the individual who wrongfully possessed himself of the goods would be liable to an
 Page 11

indictment for fraud, to an act ion at suit of the rightful owner for recovery of the goods or their value or, lastly, to an
action for the money had and received by the defendant.

63 Section 357 of the Code of Criminal Procedure

64 Rookes v. Barnard, (1964) AC 1129: (1964) 1 Aller 367; Cassell & Co. Ltd. v. Broome, (1972) AC 1027: (1972) 1 Aller 801.

65 State of Maharashtra v. Govind Mhatarba Shinde (2010) 4 AIRBOMR 167: (2010) 112 Bom 2241LR.

66 Smith v. Salwyn, (1914) 3 KB 98 : 111 LT 195. The rule did not bar an action but was a ground for staying it. It was based on the public
policy that claims of public justice must take precedence over those of private reparation. The rule, however, became an anomaly after the
police was entrusted with the duty to prosecute the offenders.

67 Keshab v. Maniruddin, (1908) 13 CWN 501; Abdul Kawder v. Muhammad Mera, (1881) 4 ILR 410 Mad.

68 Section 1, Criminal Law Act, 1967.

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Ratanlal & Dhirajlal : The Law of Torts (26th Edition)/Ratanlal and Dhirajlal Law of Torts 26 Edition/CHAPTER I
General Principles/3. CONSTITUENTS OF TORT/3(A) General

3. CONSTITUENTS OF TORT

3(A) General
The law of torts is fashioned as "an instrument for making people adhere to standardsof reasonable behaviour and
respect the rights and interests of one another". 69This it does by protecting interests and by providing for situations
when a person whose protected interest is violated can recover compensation for the loss suffered by him from the
person who has violated the same. 70By "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 seeks to satisfy, and of which, therefore, the ordering
of human relations in civilised society must take account". 71It is, however, obvious that every want or desire of a
person cannot be protected nor can a person claim that whenever he suffers loss he should be compensated by the
person who is the author of the loss. 72The law, therefore, determines what interests need protection and it also holds the
balance when there is a conflict of protected interests. 73A 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 legal damage. There are other legal rights where there is no such presumption and act ual damage is
necessary to complete the injury which is redressed by the law. An act which infringes a legal right is a wrongful act.
But every wrongful act is not a tort. 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 act ual 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 act ion for damages.

69 SETALVAD, Common Law in India, p. 109.

70 Popatlal Gokaldas Shah v. Ahmedabad Municipal Corporation, AIR 2003 Guj 44 [LNIND 2002 GUJ 392], p. 55.

71 POUND, Selected Essays, p. 86; STREET, Torts, 6th edition, p. 3.

72 "But acts or omissions which any moral Code would censure cannot in a practical world be treated so as to give a right to every person
injured by them to demand relief. In this way rules of law arise which limit the range of complaints and the extent of their remedy" :
Donoghue v. Stevenson, (1932) AC 562: 48 T.L.R. 494(HL) per LORD ATKIN.

73 For example, privileged occasions, where the interest of the person defamed in his reputation is subordinated to the interest of the person
defaming in the exercise of freedom of speech on these occasions.
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Ratanlal & Dhirajlal : The Law of Torts (26th Edition)/Ratanlal and Dhirajlal Law of Torts 26 Edition/CHAPTER I
General Principles/3. CONSTITUENTS OF TORT/3(B) Wrongful Act

3. CONSTITUENTS OF TORT

3(B) Wrongful Act

"The act complained of should, under the circumstances, be legally wrongful as regards the party complaining; that is, it
must prejudicially affect him in some legal right; merely that it will, however directly, do him harm in his interest is not
enough." 74

An act which, prima facie, appears to be innocent may become tortious, if it invades the legal right of another person. A
familiar instance is the erection on ones own land of anything which obstructs the light to a neighbours house. It is, no
doubt, lawful to erect what one pleases on ones own land; but if by twenty years enjoyment, the neighbour has acquired
the legal right to the unobstructed transmission of the light across that land, the erection of any building which
substantially obstructs it is an invasion of the right, and so not only does damage, but is unlawful and injurious. The
crucial test of legally wrongful act or omission is its prejudicial effect on the legal right of another.

Now, what is a legal right? It has been defined, by Austin, 75as 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 answers 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 very numerous. They
are 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; or, in other words, rights
relative to the mind, body, and estate; and, if the general word estate is substituted for property, these three rights will
be found to embrace all the personal rights that are known to the law". 76Under the third head of rights of property will
fall (a) those rights and interests, corporeal and in-corporeal, which are capable of transfer from one to another, and (b)
those collateral rights of a personal nature which enable a person to acquire, enjoy and preserve his private property.
Thus private property is either property in possession, property in action, or property that an individual has a special
right to acquire. 77

Public rights include those rights, which belong in common to the members of the State generally. Every infringement
of a private right denotes that an injury or wrong has been committed, which is imputable to a person by whose act,
omission, or forbearance, it has resulted. But when a public right has been invaded by an act or omission not authorized
by law, then no act ion will lie unless in addition to the injury to the public, a special, peculiar and substantial damage is
occasioned to the plaintiff. 78The remedy of the public is by indictment, for, if every member of the public were allowed
to bring action in respect of such invasion, there would be no limit to the number of act ions which might be brought. 79

To every right there corresponds an obligation or duty. If the right is legal, so is the obligation; if the right is contingent,
imaginary, or moral, 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.
Servitude of passage over a field appears as a right of walking or driving over it by the owner of the dominant tenement.
The duty of the servient owner is to refrain from putting obstacles. An easement of light appears as a right on the part of
the dominant owner to interdict the erection of buildings on the servient tenement, or to remove them when erected. The
duty is to abstain from erecting them. The duty with which the law of torts 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.
 Page 14

Liability for a tort arises, therefore, 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.

74 Rogers v. Rajendro Dutt, (1860) 8 MIA 103 (136): 13 Moore 209PC. An empty threat to prosecute is not actionable: Banwari Lal v.
Municipal Board, Lucknow, (1941) OWN 864 : AIR 1941 Oudh 572 : 1941 OLR 542.

75 Vol. II, p. 786.

76 Per CAVE, J., in Allen v. Flood, (1898) AC 1, 29: 77 LT 717.

77 Per BAYLEY, J., in Hannam v. Mockett, (1824) 2 B&C 934(1824) 2 B & C 934 (937).

78 Lyon v. Fishmongers' Company, (1876) 1 [Link]. 662.

79 Winterbottam v. Lord Derby, (1867) 2 LREX 316 (321); Iveson v. Moore, (1699) 1 [Link]. 486; Ricket v. Metropolitan Ry. Co.,
(1864) 5 B & S 149 (156) : LR 2 HL 175.
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Ratanlal & Dhirajlal : The Law of Torts (26th Edition)/Ratanlal and Dhirajlal Law of Torts 26 Edition/CHAPTER I
General Principles/3. CONSTITUENTS OF TORT/3(C) Damage

3. CONSTITUENTS OF TORT

3(C) Damage
"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 court to compensate "damage" 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. Violation of absolute right is, therefore,
actionable per se, i.e., without proof of any damage. In case of qualified rights, there is no presumption of legal damage
and the violation of such rights is actionable only on proof of act ual or special damage. In other words, in case of an
absolute right, the injury or wrong, i.e., the tortious action, is complete the moment the right is violated irrespective of
whether it is accompanied by any act ual damage, whereas in case of a qualified right, the injury or wrong is not
complete unless the violation of the right results in actual or special damage.

In the leading case of Ashby v. White, 80 which is illustrative of violation of an absolute right, Lord Holt, C.J., said:
"Every injury imports a damage; though it does not cost the party one farthing, and it is impossible to prove the
contrary; for a damage is not merely pecuniary, but an injury imports a damage, when a man is thereby hindered of his
right. As in an act ion for slanderous words, 81though a man does not lose a penny by reason of the speaking them, yet
he shall have an action. So if a man gives another a cuff on the ear, though it costs him nothing, not so much as a little
diachylon (plaster), yet he shall have his act ion, for it is personal injury. So a man shall have an action against another
for riding over his ground, though it does him no damage; for it is an invasion of his property and the other has no right
to come there".

The real significance of legal damage is illustrated by two maxims, namely, injuria sine damno and damnum sine (or
absque) injuria.

By damnum is meant damage in the substantial sense of money, loss of comfort, service, health, or the like. By injuria
is meant a tortious act ; it need not be wilful and malicious; for though it be accidental, if it be tortious, an action will
lie. 82Any unauthorized interference, however trivial, with some absolute right conferred by law on a person, is an
injury, e.g., the right of excluding others from ones house or garden.

In cases of injuria sine damno, i.e., the infringement of an absolute private right without any act ual 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 act ionable per se. There are two kinds of
torts those which are actionable per se, that is, without proof of act ual damage, and those which are actionable only on
proof of act ual damage resulting from them. In the former kind the law presumes damage because certain acts are so
likely to result in harm owing to their mischievous tendency that the law prohibits them absolutely; whereas in the latter
there is no such presumption and act ual damage must be proved. 83Whenever a person has sustained what the law calls
an injury in the former class of cases he may bring an action without being under the necessity of proving special
damage, because the injury itself is taken to imply damage. Act ual, perceptible, or appreciable loss, or detriment is not
indispensable as the foundation of an action. Trespass to person, that is assault, battery and false imprisonment, and
trespass to property, whether it be land or goods and libel are instances of torts that are actionable per se, and the court
 Page 16

is bound to award to the plaintiff at least nominal damages if no act ual damage is proved.

In India the same principles have been followed. The Privy Council has observed that "there may be, where a right is
interfered with, injuria sine damno sufficient to found an action: but no act ion can be maintained where there is neither
damnum nor injuria". 84A violation of a legal right committed knowingly gives rise to a cause of action, e.g.,
interference with an exclusive right to weigh goods and produce sold at a bazaar, 85or to break a curd-pot in a temple on
a certain day, 86or to carry a procession through certain public streets of a village on specific occasions, 87or to the
supply of water from a channel 88 or to receive offerings by setting up a new temple in the name of the same deity in the
same vicinity. 89

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 provisions of the Specific Relief Act for declaration and injunction.

Refusal to register vote. In the leading case of Ashby v. White, 90the defendant, a returning officer, wrongfully refused to
register a duly tendered vote of the plaintiff, a legally qualified voter, at a parliamentary election and the candidate for
whom the vote was tendered was elected, and no loss was suffered by the rejection of the vote, nevertheless it was held
that an act ion lay. In this case the returning officer had acted maliciously. Where, therefore, a returning officer, without
any malice or any improper motive, in exercising his judgment, honestly refused to receive the vote of a person entitled
to vote at an election, it was held that no act ion lay. 91If a person entitled to be upon the electoral roll is wrongfully
omitted from such roll so as to be deprived of his right to vote he suffers a legal wrong for which an action lies. 92An act
ion for damages will also lie if a citizen is deprived of his right to vote by a law which is unconstitutional law by reason
of offending right to equality. 93

Banker refusing customers cheque. An action will lie against a banker, having sufficient funds in his hands belonging to
a customer, for refusing to honour his cheque, although the customer did not thereby sustain any act ual loss or damage.
94

In cases of damnum sine injuria, i.e., actual and substantial loss without infringement of any legal right, no act ion lies.
Mere loss in money or moneys worth does not of itself constitute a tort. The most terrible harm may be inflicted by one
man on another without legal redress being obtainable. There are many acts which, though harmful, are not wrongful
and give no right of act ion. "Damnum" may be absque injuria. Thus, if I have a mill, and my neighbour sets up another
mill, and thereby the profits of my mill fall off, I cannot bring an action against him; and yet I have suffered damage.
But if a miller hinders the water from running to my mill, or causes any other like nuisance, I shall have such act ion as
the law gives. 95

Acts done by way of self-defence against a common enemy, such as the erection of banks to prevent the inroads of the
sea, 96removal of support to land where no such right of support has been acquired, and damage caused by acts
authorised by statute are instances of damnum absque injuria, and damage resulting therefrom is not act ionable. The
loss in such cases is not caused by any wrong, but by anothers exercise of his undoubted right; and, in every
complicated society, the exercise, however legitimate, by each member of his particular rights, or the discharge,
however legitimate, by each member of his particular duties, can hardly fail occasionally to cause conflict of interests
which will be detrimental to some. Where 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. Hence the meaning of the maxim is that
loss or detriment is not a ground of act ion unless it is the result of a species of wrong of which the law takes
cognizance. In a suit for damages based on a tort the plaintiff cannot succeed merely on the ground of damage unless he
can show that the damage was caused by violation of a legal right of his. 97

When a statute confers upon a corporation a power to be exercised for the public good, the exercise of power is not
generally discretionary but imperative. No action lies against a District Board for the planting of trees by the side of a
road even if a tree through unknown causes falls and damages the house of the plaintiff, unless it is proved that the
 Page 17

District Board did not use due care and diligence. 98

Interception of percolating water. A landowner and millowner who had for about six years enjoyed the use of a stream,
which was chiefly supplied by percolating underground water, lost the use of the stream after an adjoining owner dug
on his own ground in extensive well for the purpose of supplying water to the inhabitants of the district. In an act ion
brought by the landowner it was held that he had no right of action. 99In Acton v. Blundell, 100 a landowner in carrying
on mining operations on his land in the usual manner drained away the water from the land of another owner through
which water flowed in a subterraneous course to his well, and it was held that the latter had no right to maintain an act
ion.

Where the defendant intended to divert underground water from a spring that supplied the plaintiff corporations works,
not for the benefit of his own land, but in order to drive the corporation to buy him off, it was held that the defendants
conduct was unneighbourly but not wrongful and therefore no action lay. 101The rule as to the right of a landowner to
appropriate percolating underground water applies equally to brine. 102

It has again been recently reiterated 103 that a landowner is entitled to exercise his right to obstruct subterranean water
flowing in undefined channels under his land regardless of consequences, whether physical or pecuniary, to his
neighbours and regardless of his motive or intention or whether he anticipated damage. On this view, it was held that a
landowner was not liable to his neighbour, whose land subsided damaging her house, for extraction of underground
water despite warning that it was likely to result in collapse of neighbouring land. But this case also brings forward the
necessity of change in law by judicial decision or legislation as modern methods of extraction of underground water
without any restriction may bring down the water level in the neighbouring area to such an extent as to dry up all the
wells and seriously affect life and vegetation in the neighbourhood.

Damage caused by lawful working of mine .Where a landowner by working his mines caused a subsidence of his
surface, in consequence of which the rainfall was collected and passed by gravitation and percolation into an adjacent
lower coal-mine, it was held that the owner of the latter could sustain no act ion because the right to work a mine was a
right of property, which, when duly exercised, begot no responsibility. 104

Setting up rival school. Where the defendant, a schoolmaster, set up a rival school next door to the plaintiffs and boys
from the plaintiff school flocked to defendants, it was held that no action could be maintained. 105 Competition is no
ground of act ion whatever damage it may cause, provided nobodys legal rights are infringed. 106

Driving rival trader out of market .A, B, C and D, shipowners, who shipped tea from one port to another, combined
together, to keep the entire trade in their hands and consequently to drive F, a rival shipowner, out of trade by offering
special terms to customers who deal with them to the exclusion of F, F sued A, B, C and D for the loss caused to him by
their act. It was held that F had no right of act ion, for no legal right of F had been infringed. Damage done by
competition in trade was not actionable. 107

Use of title by spouse after dissolution of marriage. Where the marriage of a commoner with a peer had been dissolved
by decree at the instance of the wife, and she afterwards, on marrying a commoner, continued to use the title she had
acquired by her first marriage, it was held that she did not thereby, though having no legal right to the user, commit
such legal wrong against her former husband, as to entitle him, in the absence of malice, to an injunction to restrain her
the use of the title. 108

Using of name of another mans house. The plaintiffs house was called "Ashford Lodge" for sixty years, and the
adjoining house belonging to the defendant was called "Ashford Villa" for forty years. The defendant altered the name
of his house to that of the plaintiffs house. The plaintiffs alleged that this act of the defendant had caused them great
inconvenience and annoyance, and had materially diminished the value of their property. It was held that defendant had
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not violated any legal right of the plaintiffs. 109

Obstruction to view of shop. The plaintiff carried on his business in a shop which had a board to indicate the materials
in which he dealt. The defendant by virtue of statutory powers erected a gasometer which obstructed the view of his
premises. In an action by the plaintiff to restrain by injunction the erection of the gasometer as it injured him by
obstructing the view of his place of business, it was held that no injunction could be granted for the injury complained
of. 110

Misdelivery of telegram. A sent a telegram to B for the shipment of certain goods. The telegraph company, mistaking
the registered address of C for that of B, delivered the telegram to C. C, act ing on the telegram, sent the goods to A. A
refused to accept the goods stating that he had ordered the goods not from C, but from B. C sued the telegraph company
for damages for the loss suffered by him. It was held that C had no cause of action against the company, for the
company did not owe any duty of care to C, and no legal right of C could therefore be said to have been infringed. 111

Water supply cut-off. Due to the negligence of the defendants a fire hydrant near the defendants factory on an industrial
estate was damaged by their lorry. As a result of this, supply of water through the main was cut off and this caused loss
of a days work in the plaintiffs factory. Neither the main nor the hydrant was the property of the plaintiffs. In an act ion
by the plaintiffs to recover their loss it was held that the action did not lie because there was no injuria, as the duty not
to damage the hydrant was owed to the owners of the hydrant that was damaged and not to the plaintiffs. 112

Indian casesrefusal of employment. The plaintiffs owned a tug which was employed for towing ships in charge of
Government pilots in the Hooghly. A troopship arrived in the Hooghly. The plaintiffs asked an exorbitant price for
towing-up the ship, whereupon the Superintendent of Marine issued a general order to officers of the Government pilot
service not to employ the tug in future. The plaintiffs brought an act ion against the Superintendent for damages. It was
held that they had no legal right to have their tug employed by Government, and the action was dismissed. 113

Ceasing to offer food to idol. Where the servants of a Hindu temple had a right to get the food offered to the idol, but
the person who was under an obligation to the idol to offer food did not do so, and the servants brought a suit against
him for damages, it was held that the defendant was under no legal obligation to supply food to the temples servants,
and though his omission to supply food to the idol might involve a loss to the plaintiffs, it was damnum absque injuria,
and could not entitle the plaintiffs to maintain a suit. 114

Damage to wall by water .The defendant built two pacca walls on his land on two sides of his house as a result of which
water flowing through a lane belonging to the defendant and situated between the defendants and plaintiffs houses
damaged the walls of the plaintiff. The plaintiff had not acquired any right of easement. It was held that the defendant
by building the wall on his land had not in any way violated the plaintiffs right, that this was a case of damnum sine
injuria and that, therefore, no right of act ion accrued to the plaintiff. 115

Loss of one academic year. A student was wrongly detained for shortage of attendance by the Principal on a
misconstruction of the relevant regulations and thereby the student suffered the loss of one year. In a suit for damages it
was held that the suit was not maintainable as the misconstruction of the regulations did not amount to a tort. 116

The result of the two maxims 117 is that there are moral wrongs for which the law gives no legal remedy though they
cause great loss or detriment; and, on the other hand, there are legal wrongs for which the law does give a legal remedy,
though there be only violation of a private right, without actual loss or detriment in the particular case. As already seen,
there are torts which are not act ionable per se. In these cases what is violated is a qualified right as distinguished from
an absolute right in the sense that actual damage is an ingredient of the tort and the injury or wrong is complete only
when it is accompanied by act ual damage. Such damage is called variously, "expres loss", "particular damage",
"damage in fact", "special or particular loss". 118But "actual damage" is the better expression to be used in the present
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context. Actual damage is the gist of act ion in the following cases: (1) right to support of land as between adjacent
landowners; (2) menace; (3) seduction; (4) slander (except in four cases); (5) deceit; (6) conspiracy or confederation; (7)
waste; (8) distress damage feasant; (9) negligence; (10) nuisance consisting of damages to property; and (11) actions to
procure persons to break their contracts with others.

80 (1703) 2 Ld. Raym. 938 (955).

81 An act ion for slander may be maintained without proof of actual damage in exceptional cases e.g., imputation of a criminal offence.
Under English law normally actual damage is required for an act ion for slander though not for libel. The Indian Law does not recognise this
distinction. Libel and slander are both in India actionable per se. See, Chapter XII, title 4(i) and (ii).

82 Winsmore v. Greenbank, (1745) Willes 577 (581).

83 "An act may be mischievous in two wayseither in its actual result or in its tendencies. Hence, it is that legal wrongs are of two kinds. The
first consists of those in which the act is wrongful only by reason of accomplished harm which in fact ensues from it. The second consists of
those in which the act is wrongful by reason of its mischievous tendencies as recognised by the law, irrespective of the act ual issue."
SALMOND, Jurisprudence, 12th edition, (1966), p. 355.

84 Kali Kissen Tagore v. Jodoo Lal Mullick, (1879) 5 CLR 97 (101): (1878) 6 IA 190 (195). It is not necessary to show that there has been
any subsequent injury consequent on such infringement: see, Ramachand Chuckerbutty v. Nuddiar Chand Ghose, (1875) 23 WR 230;
Ramphul Sahoo v. Misree Lall, (1875) 24 WR 97; contra, Naba Krishna v. Collector of Hooghly, (1869) 2 Benglr 276(ACJ) ; Shama Churn
v. Boidonath, (1869) 11 Suth 2WR ; Seeta Ram v. Shaikh Kummeer Ali, (1871) 15 Suth 250WR ; Kaliappa v. Vayapuri, (1865) 2 MHC 442;
Nga Myat Hmwe v. Nga Yi, (1906) UBR (1904-1906), Tort, p. 9; Maung" Thit Sa v. Maung Nat, (1922) 1 BLJ 146. Where attachment
proceedings are taken bona fide in the belief that the judgment-debtor has an interest in the property, the plaintiff is not entitled to any
damage: Sain Dass v. Ujagar Singh, (1939) 21 ILR 191 Lah : 186 IC 646: AIR 1940 Lah 21 .

85 Bhikhi Ojha v. Harakh Kandu, (1889) 9 AWN 89.

86 Narayan v. Balkrishna, (1872) 9 BHC 413(ACJ). A person may possess the right to worship an idol at particular place when it is carried
in procession or otherwise: Nagiah Bathudu v. Muthacharry, (1900) 11 MLJ 215; Subbaraya Gurukul v. Chellappa Mudali, (1881) 4 ILR
315 Mad ; Krishnaswami Aiyangar v. Rangaswami Aiyangar, (1909) 19 MLJ 743. The right of worship including any special right of
worship is a civil right: Subba Reddi v. Narayana Reddi, (1911) 21 MLJ 1027 [LNIND 1911 MAD 244].

87 Andi Moopan v. Muthuveera Reddy, (1915) 29 MLJ 91 : AIR 1916 Mad 593 : 29 IC 248.

88 Rama Odayan v. Subramania Aiyar, ILR (1907) 31 Mad, following Quinn v. Leathem, (1901) AC 495: 65 JP 708: 85 LT 289.

89 Purshottamdas Parbhudas v. Bai Dahi, (1940) 42 Bom 358LR: AIR 1940 Bom 205 : ILR (1940) Bom 339.

90 Ashby v. White, (1703) 2 Ld. Raym.938.

91 Tozer v. Child, (1857) 7 El&B1 377. See also, Chunilal v. Kripashankar, (1906) 8 Bomlr 838 [LNIND 1906 BOM 105]: ILR 31 Bom
37. Express malice is not necessary. If the refusal is not in good faith, which implies due care and diligence, the person refusing to register
the vote will be liable : Draviam Pillai v. Cruz Fernandez, (1915) 29 MLJ 704 : AIR 1916 Mad 569 : 31 IC 322.

92 The Municipal Board of Agra v. Asharfi Lal, (1922) 44 All 202 : AIR 1922 All 1 : 20 Alllj 1.

93 Nixon v. Herndon, 273 U.S. 536.

94 Marzetti v. Williams, (1830) 1 B&Ad 415.

95 Per HANKFORD, J., in Cloucester Grammar School, (1410) YB 11 Hen IV, fo. 47, pl. 21, 22.

96 See, Gerrard v. Crowe, (1921) 1 AC 395. It is lawful for a person to erect an embankment on his land to protect his land from the influx
of water from adjoining land : Shanker v. Laxman, AIR 1938 Nag 289 : ILR (1938) Nag 239: 176 IC 663.

97 See, Dhanusao v. Sitabai, AIR [1948] Nag 698 .

98 District Board, Manbhum v. S. Sarkar, AIR 1955 Pat 432 : 1955 BLJR 492: ILR 34 Pat 661.

99 Chasemore v. Richards, (1859) 7 HLC 349; but see, Babaji v. Appa, (1923) 25 Bom 789LR: AIR 1924 Bom 154 : 77 IC 131.

100 (1843) 12 M&W 324.

101 Mayor & Co. of Bradford v. Pickles, (1895) AC 587.

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102 Salt Union Ltd. v. Brunner, Mand & Co., (1906) 2 KB 822.

103 Stephens v. Anglian Water Authority, (1987) 3 Aller 379(CA).

104 Wilson v. Waddell, (1876) 2 Appcas 95; Fletcher v. Smith, (1877) 2 Appcas 781; Smith v. Kenrick, (1849) 7 CB 515; Westhoughton
Coal and Cannel Co. v. Wigan Coal Corporation, (1939) Ch 800.

105 Gloucester Grammar School case, (1410) YB 11 Hen IV, fo. 47, pl. 21, 23.

106 Quinn v. Leathem, (1901) AC 495, 539: 70 LJPS 6.

107 Mogul Steamship Co. v. Mc Gregor, Gow & Co., (1892) AC 25: 61 LJQB 295. See, Chapter XIV, title 4(B), text and notes 63, 64, p.
362.

108 Earl Cowley v. Countess Cowley, (1901) AC 450.

109 Day v. Brownring, (1878) 10 Chd 294 : 39 LT 553.

110 Butt v. Imperial Gas Co., (1866) 2 LR Ch App 158.

111 Dickson v. Reuter's Telegraph Company, (1877) 3 CPD 1: 47 LJCP 1.

112 Electrochrome Ltd. v. Welsh Plastics Ltd., (1968) 2 Aller 205.

113 Rogers v. Rajendro Dutt, (1860) 8 MIA 103: 13 Moore 209PC.

114 Dhadphale v. Gurav, (1881) 6 Bom 122. See, Bindachari v. Dracup, (1871) 8 BHC 202(ACJ) (refusal of a pleader to appear in a case
under section 180,Criminal Procedure Code, is no injury); see,Dhondu Hari v. Curtis, (1907) 9 Bomlr 302; W. H. Rattigan v. The Municipal
Committee, Lahore, (1888) PRNO. 106 of 1888 (erection of a slaughter-house near a person's house is no injury if no nuisance);
Shidramappa v. Mahomed, (1920) 22 Bomlr 1107 [LNIND 1920 BOM 45]: 59 IC 391: AIR 1920 Bom 207 (erection of dam to pen back
rainwater is an injury).

115 Anand Singh v. Ramachandra, AIR 1963 MP 28 [LNIND 1961 MP 96]: ILR (1960) MP 854: 1961 Jab 1352LJ.

116 Vishnu Dutt Sharma v. Board of High School and Intermediate Examination, AIR 1981 All 46 .

117 'Damnum Sine Injuria' and 'Injuria Sine Damnum'.

118 See, the three meanings assigned to this expression in the judgment of BROWN. L.J., in Ratcliffe v. Evans, (1892) 2 QB 524 (528): 66
LT 794. See, General and Special Damages, Chapter IX, titles 1(D)(iii), p. 213.
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Ratanlal & Dhirajlal : The Law of Torts (26th Edition)/Ratanlal and Dhirajlal Law of Torts 26 Edition/CHAPTER I
General Principles/3. CONSTITUENTS OF TORT/3(D) Remedy

3. CONSTITUENTS OF TORT

3(D) Remedy
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 a tort is an act ion for damages, but there are
other remedies also, e.g., injunction may be obtained in addition to damages in certain cases of wrongs. Specific
restitution of a chattel may be claimed in an action for detention of a chattel. Where there is dispossession of land, the
plaintiff in addition to damages also claims to recover the land itself. But it is principally the right to damages that
brings such wrongful acts within the category of torts. There also exist a large number of unauthorised acts for which
only a criminal prosecution can be instituted. Further, damages claimable in a tort act ion are unliquidated damages. For
example, as earlier seen an action for money had and received in the context of quasi -contract, where liquidated
damages are claimed is not a tort action.

The law of torts is said to be a development of the maxim ubi jus ibi remedium (there is no wrong without a remedy).
Jus signifies here the legal authority to do or to demand something; and remedium may be defined to be the right of act
ion, or the means given by law, for the recovery or assertion of a right. If a man has a right, "he must of necessity have a
means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a
vain thing to imagine a right without a remedy; want of right and want of remedy are reciprocal. 119The maxim does not
mean, as it is sometimes supposed, that there is a legal remedy for every moral or political wrong. If this were its
meaning, it would be manifestly untrue. There is no legal remedy for the breach of a solemn promise not under seal and
made without consideration, 120nor for many kinds of verbal slander, though each may involve utter ruin; nor for the
worst damage to person and property inflicted by the most unjust and cruel war. The maxim means only that legal
wrong and legal remedy are correlative terms; and it would be more intelligibly and correctly stated, if it were reversed,
so as to stand, "where there is no legal remedy, there is no legal wrong." 121Again, speaking generally, there is in law no
right without a remedy; and, if all remedies for enforcing a right are gone, the right has from practical point of view
ceased to exist. 122The correct principle is that wherever a man has a right the law should provide a remedy 123 and the
absence of a remedy is evidence but is not conclusive that no right exists. 124

119 Per HOLT, C.J., in Ashby v. White, (1703) 2 Ldraym 938 (953).

120 Under Indian Law there is no legal remedy for the breach of a solemn promise made without consideration whether under seal or not.

121 Per STEPHEN, J., in Bradlaugh v. Gossett, (1884) 12 QBD 271 (285).

122 Per CAVE, J., in In re, Hepburn, Ex parte Smith, (1884) 14 QBD 394 (399).

123 Letand v. Cooper, (1965) 1 QB 232: (1964) 3 WLR 573: (1964) 2 Aller 929.

124 Abbot v. Sullivan, (1952) 1 KB 189 (200): (1952) 1 Aller 226. For example, there is a right to receive a time-barred debt but there is no
remedy to recover it.
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Ratanlal & Dhirajlal : The Law of Torts (26th Edition)/Ratanlal and Dhirajlal Law of Torts 26 Edition/CHAPTER I
General Principles/4. GENERAL PRINCIPLE OF LIABILITY

CHAPTER I

General Principles

4. GENERAL PRINCIPLE OF LIABILITY

There are two views prevailing on the subject of existence of some broad unifying principle of all tortious liability. The
two views are set out in the question that Salmond asked: "Does the law of torts consist of a fundamental general
principle that it is wrongful to cause harm to other persons in the absence of some specific ground of justification or
excuse, or does it consist of a number of specific rules prohibiting certain kinds of harmful activity and leaving all the
residue outside the sphere of legal responsibility". 125Salmond preferred the second alternative and his book for this
reason is still entitled as Law of Torts and not Law of Tort. 126Winfield on the other hand accepted the second
alternative, i.e., the narrow view only from the practical point of view as a day to day matter but he contended that
"from a broader outlook there was validity in the theory of a fundamental general principle of liability, for if we take the
view, as we must, that the law of tort has grown for centuries, and is still growing, then some such principle seems to be
at the back of it". 127The entire history of the development of the tort law shows a continuous tendency, which is
naturally not uniform in all common law countries, to recognise as worthy of legal protection, interests which were
previously not protected at all or were infrequently protected and it is unlikely that this tendency has ceased or is going
to cease in future. 128There are dicta both ancient and modern that categories of tort are not closed and that novelty of a
claim is no defence. 129But generally, the judicial process leading to recognition of new tort situations is slow and
concealed for 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 130 or public policy 131 only after they have
gained their recognition in the society for example in extra-judicial writings and even then the decision accepting the
new principle is supported mainly by expansion or restriction of existing principles which "gradually receive a new
content and at last a new form". 132A modern example of final recognition of a new tort of intimidation is furnished by
Rookes v. Barnard. 133Recent advances in the field of negligence have recognised new duty situations. 134It has been
held 135that there are not a number of separate torts involving negligence each with its own rules as was thought at the
beginning of this century and that the general principle 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" 136and a
new duty situation may be recognised on this principle provided it is just and reasonable to do so. 137May be that
similarly in future some common principle may be found by the English law behind all torts but it has not so far
recognised a general principle of liability, 138or what is known as the prima facie tort theory under the American law
that prima facie "the intentional infliction of temporal damage is a cause of action, which, as a matter of substantive
law, whatever may be the form of the pleading requires justification if the defendant is to escape". 139The High Court of
Australia in a controversial decision 140Beaudesert Shire Council v. Smith 141 appeared to recognise the existence of an
innominate tort of the nature of an "action for damages upon the case" available to "a person who suffers harm or loss
as the inevitable consequence of unlawful, intentional and positive acts of another". But the decision has not been
followed subsequently in Australia or other common law jurisdictions and the House of Lords in Lonrho Ltd. v. Shell
Petroleum Co. Ltd 142 emphatically ruled that it forms no part of the English Law. The present state of the English law
has been pithily summed up by Prof. G. Williams as follows: "There are some general rules creating liabilityand some
equally general rules exempting from liabilitybetween the two is a stretch of disputed territory, with the courts as an
unbiased boundary commission. If, in an unprovided case, the decision passes for the plaintiff, it will be not because of
a general theory of liability but because the court feels that here is a case in which existing principles of liability may
properly be extended." 143
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When invited to develop a new principle of liability the English Courts generally consider as to how far the existing
torts within their recognised boundaries are sufficient to redress the injustice for which a new principle is sought to be
developed and whether such a principle has been recognised in other commonwealth jurisdictions. Proceeding on these
lines, the House of Lords declined to extend the tort of Malicious Prosecution to cover disciplinary proceedings or even
civil proceedings in general though such an extension is recognised in the United States. 144The English courts also
"appear to be determined to arrest the drift towards an American style cry-baby culture in which the first reaction to
misfortune is an expectant phone call to the nearest firm of solicitors." 145This culture was elegantly described by
Rougier, J., in John Munroe (Acrylics) Ltd. v. London Fire and Civil Defence Authority 146 as follows: "It is truism to
say that we live in the age of compensation. There seems to be a growing belief that every misfortune must, in
pecuniary terms at any rate, be laid at someone elses door, and after every mishap, the cupped palms are outstretched for
the solace of monetary compensation." 147As more recently observed by Lord Hobhouse: "The pursuit of an
unrestricted culture of blame and compensation has many evil consequences and one is certainly the interference with
the liberty of citizen." 148This unrestricted culture of blame assumes that "for every mischance in this accident-prone
world some one solvent must be liable in damages." 149Though in India the risk is not of a drift towards the American
style cry-baby culture, with the widening of the right to life guaranteed by Article 21 of the Constitution to embrace
almost everything which goes to make a mans life meaningful, complete and worth living with dignity, the risk is that
the blame for every misfortune may be laid at the doorstep of the State. 150

125 SALMOND, Torts, 2nd edition, (1910), pp. 8, 9.

126 SALMOND and HEUSTON, Law of Torts, 20th edition, p. 18. At p. 21, the book in defence of SALMOND now says: "To some
extent the critics seem to have misunderstood SALMOND. He never committed himself to the proposition, certainly untenable now, and
probably always so, that the law of torts is a closed and inexpansible system ... SALMOND merely contended that these changes were not
exclusively referable to any single principle. In this he was probably right."

127 WINFIELD and JOLOWICZ on Tort, 12th edition, (1984), p. 14. See further, FRIEDMANN, Legal Theory, 5th edition., p. 528.
SETALVAD, The Common Law in India, p. 109: "A body of rules has grown and is constantly growing in response to new concepts of right
and duty and new needs and conditions of advancing civilisation."

128 American Restatement of Torts, Article 1; D.L. LLOYD, Jurisprudence, 2nd edition, p. 245. Dr. Mohammed v. Dr. Mehfooz Ali, 1991
MPLJ 559.

129 Ashby v. White (1703) 2 Ldraym 938; Chapman v. Pickersgill, (1762) 2 Wils 145 (146): "Torts are infinitely various, not limited or
confined" (PRATT C.J.); Donoghue v. Stevenson, (1932) AC 562 (619)(HL) : "The conception of legal responsibility may develop in
adaptation to altering social conditions and standards. The criterion of judgment must adjust and adapt itself to the changing circumstances
of life" (LORD MACMILLAN); Rookes v. Barnard, (1964) AC 1129 (1169): (1964) 2 WLR 269(HL) : Home Officer v. Dorset Yacht Co.
Ltd., (1970) 2 Aller 294: 1970 AC 1004(HL). The novelty of a claim may raise a presumption against its validity; see, Wheeler v. Sanerfield,
(1966) 2 QB 94 (104) (LORD DENNING M.R.): "I would not exclude the possibility of such an action; but none as yet has appeared in the
books. And this will not be the first."

130 CARDOZO, The Nature of the Judicial Process, p. 113; Dr. Mohammed v. Dr. Mehfooz Ali, supra.

131 HOLMES, The Common Law, p. 32; Dr. Mohammed v. Dr. Mehfooz Ali, supra.

132 HOLMES, The Common Law, p. 32. See further Popatlal Gokaldas Shah v. Ahmedabad Municipal Corporation, AIR 2003 Guj 44
[LNIND 2002 GUJ 392], pp. 45, 46.

133 Rookes v. Barnard, (1964) AC 1129: (1964) 2 WLR 269(HL).

134 Donoghue v. Stevenson, (1932) AC 562(HL) ; Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd., (1964) AC 465: (1963) 2 Aller 575;
Home Officer v. Dorset Yacht Co. Ltd., (1970) 2 Aller 294: 1970 AC 1004(HL) ; Junior Books Ltd. v. Veitchi Co. Ltd., (1982) 3 Aller
201(HL) ; MPSRTC v. Basantibai, (1971) MPLJ 706(DB): 1971 Jab 610LJ: 1971 ACJ 328.

135 Home Officer v. Dorset Yacht Co. Ltd. , (1970) 2 Aller 294: 1970 AC 1004(HL) (LORD REID).

136 Donoghue v. Stevenson, (1932) AC 562 (580): 147 LT 281(HL) (LORD ATKIN).

137 Governors of the Peabody Donation Fund v. Sir Lindsay Parkinson & Co. Ltd., (1984) 3 Aller 529 (534): 1985 AC 218(HL). See, p.
462, post.
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138 PATON, Jurisprudence, 3rd edition, p. 425. nd

139 Aikens v. Wisconsin, 195 US 194, p. 204 (HOLMES, J); Restatement, Torts (2nd) s. 870; CHRISTIE, Cases and Materials on the Law
of Torts, p. 19; WINFIELD & JOLOWICZ, Tort, 12th edition, (1984) p. 14.

140 FLEMING, Law of Torts, 6th edition, p. 661 (662).

141 (1966) 120 CLR 145. But, see, Victoria Park Racing and Recreation Grounds Co. Ltd. v. Taylor, (1937) 58 CLR 479 (493) per
LATHAM, C.J.: "It has been contended that if damage is caused to any person by the act of any other person an act ion will lie unless the
second person is able to justify his action. Many cases show that there is no such principle in the law".

142 (1982) AC 173: (1981) 3 WLR 33: (1981) 2 Aller 456(HL).

143 The Foundation of Tortious Liability, (1939) 7 CLJ 131; WINFIELD & JOLOWICZ, Tort, 12th edition, (1984), p. 15; Dr. Mohammed
v. Dr. Mehfooz Ali, 1991 MPLJ 559.

144 Gregory v. Portsmouth City Council, (2000) 1 Aller 560: 2000 AC 419: (2000) 2 WLR 306(HL).

145 Annual Review (All ER) 1996, p. 471.

146 (1996) 4 Aller 318.

147 (1996) 4 Aller 318, p. 332

148 Tomlinson v. Congbton Borough Council, (2003) 3 Aller 1122, p. 1663(HL).

149 CBS Songs Ltd. v. Amstrad Consumer Electronics plc, (1988) 2 Aller 484, p. 497(HL) (LORD TEMPLEMAN).

150 See, pp. 56-58 post.