Law of Torts

The Supreme Court has discussed the applicability of the rule of Rylands v. Fletcher [UKHL 1, (18b8) LR 3HL 330] in the case of M.C. Mehta v. Union of India and Others

(1987) 1. Comp. L.J. p. 99 S.C. while determining the principles on which the liability of an enterprise engaged in a hazardous or inherently dangerous industry depended if an accident occurred in such industry.

“We have to evolve new principle and lay down new norms which would adequately deal with the new problems which arise in a highly industrialized 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 other foreign country”.

On the question of the nature of liability for a hazardous enterprise the court while noting that the above rule as developed in England recognizes certain limitations and responsibilities recorded it’s final view as follows:

“We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas, owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken. The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged, must be conducted with the highest standards of safety; and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm; and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without negligence on its part.”

Thus, while imposing absolute liability for manufacture of hazardous substances, the Supreme Court intended that the requirement of non-natural use or the aspect of escape of a dangerous substance, commonly regarded as essential for liability under Rylands v. Fletcher, need not be proved in India.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2022, Q. 5(a) (Syllabus 2017).

Assault is any act of one person which directly causes the other person immediately to apprehend a contact with his person. Thus, when one person by his act creates an apprehension in the mind of the other person that he is going to commit battery against him, the tort of assault is committed.

The law of assault is substantially the same as that of battery except that apprehension of contact, not the contact itself has to be established. Usually when there is a battery, there will also be assault.

To point a loaded gun at the plaintiff, or to shake first under his nose, or to curse him in a threatening manner, or to aim a blow at him which is intercepted, or to surround him with a display of force is to assault him clearly. If the defendant by his act intends to commit a battery and the plaintiff apprehends it, is an assault.

Thus, in the first situation, Victor is pointing his loaded gun at R and the apprehension by R that Victor intends to commit a battery is an assault. Hence it can be said that Victor has committed assault in the first case.

The second situation attract the tort/offence of battery. Battery means any direct application of force to the person of another individual without his consent or lawful justification is a wrong of battery. To constitute tort/ offence of battery, therefore, two things are necessary:

(i)use of force, however, trivial it may be without the plaintiff’s consent, and

(ii)without any lawful justification.

Even though the force used is very trivial and does not cause any harm, the wrong is committed.

Thus, even to touch a person in anger or without any lawful justification is battery.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2024, Q. 2(c) (Syllabus 2017).

Battery Any direct application of force to the person of another individual without his consent or lawful justification is a wrong of battery. To constitute a tort of battery, therefore, two things are necessary: (i) use of force, however, trivial it may be without the plaintiff’s consent, and (ii) without any lawful justification. Even though the force used is very trivial and does not cause any harm, the wrong is committed. Thus, even to touch a person in anger or without any lawful justification is battery.

Assault Assault is any act of the defendant which directly causes the plaintiff immediately to apprehend a contact. Thus, when the defendant by his act creates an apprehension in the mind of the plaintiff that he is going to commit battery against him, the tort of assault is committed. The law of assault is substantially the same as that of battery except that apprehension of contact, not the contact itself has to be established. Usually when there is a battery, there will also be assault, but not for instance, when a person is hit from behind. To point a loaded gun at the plaintiff, or to shake first under his nose, or to curse him in a threatening manner, or to aim a blow at him which is intercepted, or to surround him with a display of force is to assault him clearly if the defendant by his act intends to commit a battery and the plaintiff apprehends it, is an assault.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2020, Q. 2(a) (Syllabus 2017).

The given situation comes in the bracket of 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.

In Gloucester Grammar School Case, defendant after leaving Plaintiff’s School where he worked as a teacher, started his own school. Being a teacher of standing, many students of Plaintiff’s school left and enrolled themselves into the defendant’s school. The plaintiff filed a suit for monetary damages incurred by his own. The court held that the defendant is not liable because competition is no ground of action even though monetary loss is caused.

In case of Chasemore v. Richards, 1859, water supply to Plaintiff’s mill was disrupted due to defendant’s digging of his well. This resulted in cutting of water supply to plaintiff’s mill due to which it was shut down. Court held defendant not liable because although monetary losses were incurred there was no violation of legal right.

In view of the above mentioned principle and case laws, it can be said that B is not liable to pay because although monetary might have been incurred but there was no violation of legal right.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2024, Q. 2(a) (Syllabus 2022).

It is not that every damage is a damage in the eyes of law. It must be a damage which the law recognizes as such. In other words, there should be a legal injury or invasion of the legal right. In the absence of an infringement of a legal right, an action does not lie.

The situation asked in the question is related to 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 lose in profits, because you are exercising your legal right. [Gloucester Grammer School case, (1410)] In view of the above, in the given situation Vijay was running a grocery store but due to some argument Sanjay also opened a grocery store right in front of his shop due to which Vijay lost some of his customers and suffered losses. Vijay cannot sue Sanjay for his losses as there is no legal damage done by Sanjay and he was exercising his legal right. Therefore, Vijay cannot recover any damages from Sanjay.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2023, Q. 3(a) (Syllabus 2017).

It is not every damage that is a damage in the eye of law. It must be a damage which the law recognizes 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 causes. Therefore, legal damage is neither identical with actual damage not is it necessarily pecuniary.

Two maxims explain this proposition.

A.Damnum Sine Injuria - This maxim means, 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.

Eg. 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 lose in profits, because you are exercising your legal right.

B.Injuria Sine Damnum - According to this maxim, where there is no damage resulted yet it is an injury or wrong in tort, i.e. where there is infringement of a legal right not resulting in harm but plaintiff can still sue in tort.

Eg. The act of the act of trespassing upon another's land is actionable even though it has not caused the plaintiff even the slightest harm.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2022, Q. 6(c) (Syllabus 2017).

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.

Injuria Sine Damnum It means injury without damage, i.e., where there is no damage resulted yet it is an injury or wrong 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 damages.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2021, Q. 2A(i) (Syllabus 2017).

A tort consists of some act or omission done by the defendant whereby he has without just cause or excuse caused some harm to plaintiff. To constitute a tort, there must be:

(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 eyes of the 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 neighborhood, as a result of which I lose some customers and my profits decline, 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].

Injuria sine damnum It means injury without damage, i.e., where there is no resultant damage yet it is an injury or wrong 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 Damnum 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 damnum 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.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2021, Q. 2(b) (Syllabus 2017).

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.

Injuria Sine Damnum means injury without damage, i.e., where there is no damage resulted yet it is an injury or wrong 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 Damnum 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 damnum covers such cases and action lies when the right is violated even though no damage has occurred.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2018, Q. 2(c) (Syllabus 2017).

Meera conducts amounts to the civil wrong of defamation under the Law of Torts. Her actions may also be considered injurious falsehood because the false statements were directed specifically at Ravi’s business.

Defamation is an attack on the reputation of a person. It means that something is said or done by a person which affects the reputation of another. It is defined as follows:

“Defamation is the publication of a statement which tends to lower a person in the estimation of right thinking members of society generally; or which tends to make them shun or avoid that person.”

Remedies Available to Ravi Ravi can seek the following remedies from the court:

(i)Damages Ravi may file a civil suit for damages against Meera to recover compensation for:

•Financial losses due to reduced sales

•Harm to his business reputation

•Loss of goodwill in the village

(ii)Injunction Ravi can request the court to issue an injunction ordering Meera to:

•Stop spreading false statements about his bakery

•Refrain from making similar defamatory statements in the future.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2026, Q. 6(b) (Syllabus 2022).

There are two types of remedies available to a person under the Law relating to Torts. These are judicial and extra judicial remedies. The extra judicial remedies are explained as under:

Extra judicial remedies

(a)Self defence: It is lawful for any person to use reasonable forces to protect himself, or any other person against any unlawful use of force.

(b)Prevention of trespass: An occupier of land or any person with his authority may use reasonable force to prevent trespassers entering or to eject them but the force should be reasonable for the purpose.

(c)Re-entry on land: A person wrongfully disposed of land may retake possession of land if he can do so in a peaceful and reasonable manner.

(d)Re-caption of goods: It is neither a crime nor a tort for a person entitled to possession of a chattel to take it either peacefully or by the use of a reasonable force from one who has wrongly taken it or wrongfully detained it.

(e)Abatement of nuisance: The occupier of land may lawfully abate (i.e. terminate by his own act), any nuisance injuriously affecting it. Thus, he may cut overhanging branches as spreading roots from his neighbour’s trees, but:

(i)upon giving notice;

(ii)by choosing the least mischievous method;

(iii)avoiding unnecessary damage.

(f)Distress damage feasant: An occupier may lawfully seize any cattle or any chattel which are unlawfully on his land doing damage there and detain them until compensation is paid for the damage. The right is known as that of distress damage feasant - to distrain things which are doing damage.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2024, Q. 2(a) (Syllabus 2017).

Extra Judicial remedies under Law of torts are available in certain cases. It is lawful to redress one’s injuries by means of self-help without recourse to the court; these are as under:

(a)Self Defence - It is lawful for any person to use reasonable forces to protect himself, or any other person against any unlawful use of force.

(b)Prevention of Trespass - An occupier of land or any person with his authority may use reasonable force to prevent trespassers entering or to eject them but the force should be reasonable for the purpose.

(c)Re-entry on Land - A person wrongfully disposed of land may retake possession of land if he can do so in a peaceful and reasonable manner.

(d)Re-caption of Goods - It is neither a crime nor a tort for a person entitled to possession of a chattel to take it either peacefully or by the use of a reasonable force from one who has wrongly taken it or wrongfully detained it.

(e)Abatement of Nuisance - The occupier of land may lawfully abate (i.e. terminate by his own act), any nuisance injuriously affecting it. Thus, he may cut overhanging branches as spreading roots from his neighbour’s trees, but (i)

upon giving notice; (ii) by choosing the least mischievous method; (iii) avoiding unnecessary damage.

(f)Distress Damage Feasant - An occupier may lawfully seize any cattle or any chattel which are unlawfully on his land doing damage there and detain them until compensation is paid for the damage. The right is known as that of distress damage feasant-to distrain things which are doing damage.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2020, Q. 2A(iv) (Syllabus 2017).

False imprisonment consists in the imposition of a total restraint for some period, however short, upon the liberty of another, without sufficient lawful justification. It means unauthorized restraint on a person's body. What happens in false imprisonment is that a person is confined within certain limits so that he cannot move about and so his personal liberty is infringed. It is a serious violation of a person's right and liberty whether being confined within the four walls or by being prevented from leaving place where he is. If a man is restrained, by a threat of force from leaving his own house or an open field there is false imprisonment.

In Sunil Batra v. Delhi Administration AIR 1980 SC 1579, the Supreme Court while interpreting section 56 of the Prisons Act, 1894, observed that there is an implied duty on the jail superintendent to give reasons for putting bar fetters on a prisoner to avoid invalidity of that provision under Article 21 of the Constitution. Thus the Supreme Court laid the foundation of a sound administrative process requiring the adjudicatory authorities to substantiate their order with reasons.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2021, Q. 2A(iii) (Syllabus 2017).

It is not that every damage is a damage in the eye of the law. It must be a damage which the law recognises as such. In other words, there should be a 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 explain this proposition:

(a)Damnum sine injuria (Damage without injury), and

(b)Injuria sine damnum (injury without damage), The given situation can be governed by the rule of Injuria Sine Damnum.

It means injury without damage, i.e., where there is no damage resulted, yet it is an injury or wrong in tort, i.e., where there is an infringement of a legal right not resulting in harm but plaintiff can still sue in tort. Injuria sine Damnum covers such cases and for which action lies where the right is violated even though no damage has occurred. 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 damnum or damages. An absolute right is one, the violation of which is actionable per se, i.e., without the proof of any damage.

In the given situation, Ramesh’s legal right to vote, being a registered voter, was denied by the presiding officer. Even though he suffered no monetary loss and the election result remained unchanged, the violation of this absolute right constitutes a complete tort. In the case of Ashby v. White, the court held that wrongful prevention from voting, even without monetary loss, is actionable. Therefore, Ramesh is entitled to claim damages under the Law of Torts as his absolute legal right to vote was infringed.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2025, Q. 6(d) (Syllabus 2022).

Under the Law of Torts remedies can be in the form of Judicial Remedies and Extra Judicial Remedies.

Judicial Remedies Three types of judicial remedies are available to the plaintiff in an action for tort namely: (i) Damages, (ii) Injunction, and (iii) Specific Restitution of Property.

Extra Judicial Remedies In certain cases it is lawful to redress one’s injuries by means of self-help without recourse to the court. These remedies are:

(a)Self Defence

(b)Prevention of Trespass

(c)Re-entry on Land

(d)Re-caption of Goods

(e)Abatement of Nuisance

(f)Distress Damage Feasant

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2018, Q. 6(d) (Syllabus 2017).

Malicious prosecution consists in instigating judicial proceedings (usually criminal) against another, maliciously and without reasonable and probable cause, which terminate in favour of that other and which results in damage to his reputation, personal freedom or property.

The following are the essential elements of this tort:

(i)There must have been a prosecution of the plaintiff by the defendant.

(ii)There must have been want of reasonable and probable cause for that prosecution.

(iii)The defendant must have acted maliciously (i.e. with an improper motive and not to further the end of justice).

(iv)The plaintiff must have suffered damages as a result of the prosecution.

(v)The prosecution must have terminated in favour of the plaintiff.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2019, Q. 4(a) (Syllabus 2017).

Malicious prosecution consists in instigating judicial proceedings (usually criminal)

against another, maliciously and without reasonable and probable cause, which terminates in favour of that other and which results in damage to his reputation, personal freedom or property.

The following are the essential elements of this tort:

i.There must have been a prosecution of the plaintiff by the defendant.

ii.There must have been want of reasonable and probable cause for that prosecution.

iii.The defendant must have acted maliciously (i.e., with an improper motive and not to further the end of justice).

iv.The plaintiff must have suffered damages as a result of the prosecution.

v.The prosecution must have terminated in favour of the plaintiff.

To be actionable, the proceedings must have been instigated actually by the defendant. If he merely states the fact as he believes them to a policeman or a magistrate, he is not responsible for any proceedings which might ensue as a result of action by such policeman or magistrate on his own initiative.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2023, Q. 2(c) (Syllabus 2017).

The main remedy for a tort is an action for unliquidated damages, although some other remedies,like Injunction, Specific Restitution and Self Help are also available.

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 in it, 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.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2022, Q. 2A(i) (Syllabus 2017).

Under the Rule of Strict Liability the defendant is liable even though the harm to the plaintiff occurred without intention or negligence on the defendant’s part. 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.

(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 grounds of social policy or expediency. These case involve liability of master for the acts of his servant.

The Rule of Strict Liability was laid down in the case of Ryland v. Fletcher (1868)

L.R. 3 H.L. 330. It has been explained that two conditions are necessary in order to apply the rule i.e.

(i)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

(ii)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.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2018, Q. 2A(ii) (Syllabus 2017).

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 defendant’s part.

The Rule in Rylands v. Fletcher (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.

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 contractorstherefore, 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.

It was held in this case 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.

The case of Rylands v. Fletcher establishes a rule of strict liability for those who keep dangerous things on their property that escape and cause damage. However, there are several exceptions to this rule, one of which is the “act of a third party”.

Accordingly, “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.”

In Box v. Jubh (1879) 4 Ex. D. 76, the overflow from the defendant’s reservoir was caused by the 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. This means that if the escape and resulting damage are caused by the unforeseeable and deliberate actions of a third party, the property owner may not be held liable.

In the given situation, Vedant intentionally climbed over the fence and opened the kennel gate, allowing the dog to run free. This action was not something that Reyansh could have reasonably anticipated or prevented. Therefore, Reyansh may not be held liable for the damages to Kartik because the escape and subsequent injury were caused by Vedant i.e., the third party.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2024, Q. 2(a) (Syllabus 2022).

In some torts, the defendant is liable even though the harm to the plaintiff occurred without intention or negligence on the defendant’s part.

The leading case on this matter is Rylands v. Fletcher (1868) L.R. 3 H.L. 330. In this case 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 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.

The rule stated in Rylands v. Fletcher was 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 escapes and cause damage, he is responsible, however careful he may have been and whatever precautions he may have taken to prevent damage. He 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.

The facts of the given situation may be adjudicated on the basis of the principle laid down in the case of Rylands v. Fletcher. In these types of situations, such liability arises in cases where damage is done by the escape of dangerous substances brought or kept by anyone upon his land. In such cases, a man is made by law an insurer of others against the result of his activities.

Thus, Sunshine Solar Systems Private Limited can be held as responsible to Surya for the damages under the rule of strict or absolute liability.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2025, Q. 2(c) (Syllabus 2022).

The exceptions to the rule of strict liability under Law of Torts are as under:

(i)Damage due to Natural Use of the Land 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 the dangerous thing on the defendant’s land, the liability under the rule of Strict Liability in Ryland v.

Flethcher does not arise. Such a consent is implied where the source of danger is for the ‘common benefit’ of both.

(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.

(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.

(v)Act of God If an escape is caused, through natural causes and without human intervention circumstances which no human foresight can provide against and of which human prudence is not bound to recognize the possibility, there is then said to exist the defence of Act of God.

(vi)Escape due to plaintiff’s own Default Damage by escape due to the plaintiff’s own default was considered to be good

defence of rule of strict liability in Rylands v. Fletcher itself. Also, if the plaintiff suffers damage by his own intrusion into the defendant’s property, he cannot complain for the damage so caused.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2022, Q. 2(a) (Syllabus 2017).

Malicious prosecution consists in instigating judicial proceedings (usually criminal) against another, maliciously and without reasonable and probable cause, which terminate in favour of that other and which results in damage to his reputation, personal freedom or property.

The following are the essential elements of this tort:

(i)There must have been a prosecution of the plaintiff by the defendant.

(ii)There must have been want of reasonable and probable cause for that prosecution.

(iii)The defendant must have acted maliciously (i.e. with an improper motive and not to further the end of justice).

(iv)The plaintiff must have suffered damages as a result of the prosecution.

(v)The prosecution must have terminated in favour of the plaintiff.

To be actionable, the proceedings must have been instigated actually by the defendant. If he merely states the fact as he believes them to a policeman or a magistrate, he is not responsible for any proceedings which might ensue as a result of action by such policeman or magistrate on his own initiative.

In the given situation, Ravi falsely accused Govind out of spite and that the court found the allegations baseless and acquitted Govind. Therefore, Govind can seek a remedy against Ravi under the law of tort by filing a suit for malicious prosecution under the law of tort.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2024, Q. 4A(i) (Syllabus 2022).

(i)Normally the tortfeasor is liable for his tort. But in some cases a person may be held liable for the tort committed by another. One such exception is when there exist a relationship of Principal and Agent [Specific authority], According to the Law of Torts the principle applicable in the cases of specific authority between principal and agent is qui facit per alium facit per se which means he who acts through another is acting himself, so that the act of the agent is the act of the principal.

When an agent commits a tort in the ordinary course of his duties as an agent, the principal is liable for the same. A master is vicariously liable for the tort of his servant, principal for the tort of his agent and partners for the tort of a partner. This is known as vicarious liability in tort.

In the case of Lloyd v. Grace, Smith & Co. (1912) A.C. 716, the managing clerk of a firm of solicitors, while acting in the ordinary course of business committed fraud, against a lady client by fraudulently inducing her to sign documents transferring her property to him. He had done so without the knowledge of his principal who was liable because the fraud was committed in the course of employment.

In the given situation, where R was working as an accountant in a firm of solicitors, committed fraud against B by fraudulently inducing her to sign documents transferring her property to him. He did so while acting in the ordinary course of business without the knowledge of the principal Q. Therefore, the principal Q would be held liable as the fraud was committed in the course of employment.

(ii)The situation in the given situation is relating to Liability for the acts of Servants. Here, an employer is liable whenever his servant commits a tort in the course of his employment. An act is deemed to be done in the course of employment if it is either:

(a)a wrongful act authorized by the employer, or

(b)a wrongful and unauthorized mode of doing some act authorized by the employer.

As per the case of Century Insurance Co Vs Northern Ireland Road Transport Board, if a servant acts negligently in the performance of his duties or displays reckless behaviour, thereby causing loss to the plaintiff, the master would be liable for the same.

In the given situation, M while transferring petrol from lorry to an underground tank at a garage, struck a match stick in order to light a cigarette and then threw it still alight on the floor causing an explosion and a fire. Therefore, in this case employers are liable for the damage caused as M did the act in the course of carrying out his task of delivering petrol.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2024, Q. 3(b) (Syllabus 2017).

General principles of vicarious liability is based on two maxims as follows:

i.'Qui facit per alium facit per se', which means, "One who does an act through another is deemed in law to do it himself".

ii.'Respondeat superior' which means, "Let the principal be liable" / "let the superior be responsible" for their subordinate.

Vicarious liability is a form of strict, secondary liability. Such liability arises in relationships such as of master and servant, where master shall be liable for the act of the servant done in course of employment. An act is said to be in course of employment if:

i.The master has directly authorized the act to the servant; ii. The act done is authorized act done wrongly.

The wrong doing of an authorized act will make the master liable.

The facts in the instant case are, however, very clear that the incident in question took place when the cash box was being brought into the bank premises and the deceased was also entering the bank premises. If the security guard committed an error in perceiving the act of the deceased as a threat to the cash box as an impediment of protection of the property of the bank from a possible danger from any third party, the act of the security guard causing death of deceased was in the course of the employment of the security guard and, therefore, it is not possible to accept the defence pleaded by the bank that it is not vicariously liable.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2023, Q. 3(c) (Syllabus 2022).

An employer is vicariously liable for the torts of his servants committed in the course of their employment, but he is not liable for the torts of those who are his independent contractors.

An independent contractor is one who works for another but who is not controlled by that other in his conduct in the performance of that work. These definitions show that a person is a servant where the employer “retains the control of the actual performance” of the work.

When Employer is Liable for the acts of Independent Contractor The employer is not liable merely because an independent contractor commits a tort in the course of his employment; the employer is liable only if he himself is deemed to have committed a tort. This may happen in one of the following three ways:

(i)When employer authorizes him to commit a tort.

(ii)In torts of strict liability.

(iii)Negligence of independent contractor.

When Employer is not Liable for the acts of an Independent Contractor An employer is not liable for the tort of an independent contractor if he has taken care in the appointment of the contractor. In Philips v. Britania Hygienic Laundry Co. (1923), the owner of lorry was held not liable when a third-party’s vehicle was damaged, in consequence of the negligent repair of his lorry by a garage proprietor.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2023, Q. 1(c) (Syllabus 2017).

A master is liable for the tort committed by his servant while acting in the course of his employment. The servant, of course, is also liable; their liability is joint and several.

In such cases -

(1)liability of a person is independent of his own wrongful intention or negligence

(2)liability is joint as well as several

(3)In case of vicarious liability, the liability arises because of the relationship between the principal and the wrongdoer but in case of absolute or strict liability, the liability arises out of the wrong itself.

A master is liable not only for the acts which have been committed by the servant, but also for acts done by him which are not specifically authorized, in the course of his employment. The basis of the rule has been variously stated: on the maxim Respondeat Superior (Let the principal be liable) or on the maxim Qui facit per alium facit per se (he who does an act through another is deemed to do it himself). The master is liable even though the servant acted against the express instructions, for the benefit of his master, so long as the servant acted in the course of employment.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2021, Q. 1(d) (Syllabus 2017).

Principal and Agent (Specific authority)

Qui facit per alium facit per se - he who acts through another is acting himself, so that the act of the agent is the act of the principal. When an agent commits a tort in the ordinary course of his duties as an agent, the principal is liable for the same. In Lloyd v.

Grace, Smith & Co. (1912) A.C. 716, the managing clerk of a firm of solicitors, while acting in the ordinary course of business committed fraud, against a lady client by fraudulently inducing her to sign documents transferring her property to him. He had done so without the knowledge of his principal who was liable because the fraud was committed in the course of employment.

The House of Lords in this case held that, by allowing the managing clerk to deal with clients, the firm had given him ostensible authority to conduct certain types of business. Therefore the firm was liable for the fraud.

Normally, the tortfeasor is liable for his tort. But in some cases a person may be held liable for the tort committed by another. A master is vicariously liable for the tort of his servant, principal for the tort of his agent and partners for the tort of a partner. This is known as vicarious liability in tort.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2021, Q. 6(b) (Syllabus 2017).

A master/employer is liable for the tort committed by his servant while acting in the course of his employment. The servant, of course, is also liable; their liability is joint and several. This is known as vicarious liability. The relationship of an individual with that of his/ her independent contractor is not that of master-servant.

The employer is not liable merely because an independent contractor commits a tort in the course of his employment. The employer is liable only if he himself is deemed to have committed a tort. This may happen in one of the following three ways:

(i)When employer authorizes him to commit a tort.

(ii)In torts of strict liability

(iii)Negligence of independent contractor.

In the present case, Swaraj would be liable for the fault of Rakesh in the above mentioned circumstances.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2018, Q. 1(d) (Syllabus 2017).

Tort committed by a partner in the ordinary course of the business of the firm, all the other partners are liable therefore to the same extent as the guilty partner. The liability of the partners is joint and several.

In the case of Hamlyn vs.Houston & Co. (1903) 1 K.B. 81, one of the two partners bribed the plaintiff's clerk and induced him to divulge secrets relating to his employer's business. It was held that both the partners were liable for the tort committed by only one of them.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2019, Q. 6A(i) (Syllabus 2017).

For the tort committed by a partner in the ordinary course of the business of the firm, all the other partners are liable therefore to the same extent as the guilty partner. The liability of the partners is joint and several. This case involves vicarious liability arising out of the special relationship between partners. Partners are agent of a partnership firm. The principles of agency govern the relationship between partners as well as between partners and partnership firm. So far as the liability for the torts or negligence committed by the partners is concerned a firm is liable for the same, provided such negligence or tort is committed in the ordinary course of the business of the firm.

It is noteworthy that each partner is an agent at one hand and at the same time is a principal of all other partners. His deeds in the ordinary course of firm’s business bind other partners and simultaneously make the firm liable for his deed.

In this case Ramesh was acting within the scope of his authority and in the ordinary course of firm’s business, where he bribed the clerk of the plaintiff’s company and induced him to commit a breach of contract with the plaintiff and divulge some of the secret important information of the plaintiff’s company. Thus, both the partners may be held liable for the said wrongful act of Ramesh.

In view of the above, it can be said that plaintiff may succeed.

(5 marks)

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2025, Q. 6(d) (Syllabus 2022).

When a case of Government liability in tort comes before the courts, the question is whether the particular Government activity, which gave rise to the tort, was the sovereign function or non-sovereign function. If it is a sovereign function it could claim immunity from the tortuous liability, otherwise not. Generally, the activities of commercial nature or those which can be carried out by the private individual are termed as non-sovereign functions.

The first important case involving the tortious liability of the State was raised in the pre-independence era P. and O. Steam Navigation v. Secretary of State for India (5 Bom HCR App 1). The question referred to the Supreme Court was whether the Secretary of State for India is liable for the damages caused by the negligence of the servants in the service of the Government. The Supreme Court answered the question in the affirmative. The Court pointed out the principle of law that the Secretary of State for India in Council is liable for the damages occasioned by the negligence of Government servants, if the negligence is such as would render an ordinary employer liable. According to the principle laid down in this case the Secretary of State can be liable only for acts of non-sovereign nature, liability will not accrue for sovereign acts. The Court admitted the distinction between the sovereign and non-sovereign functions of the government and said that here was a great and clear distinction between acts done in exercise of what are termed sovereign powers, and acts done in the conduct of undertakings which might be carried on by private individuals without having such powers delegated to them.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2019, Q. 4(b) (Syllabus 2017).