FOUNDATION OF TORTIOUS LIABILITY Mr. Amaresh Patel TORTIOUS LIABILITY Mon, Dec 13, 2021, at ,12:35 PM FOUNDATION OF TORTIOUS LIABILITYLaw of tort being exclusively a civil wrong, there arises no question of punishing the wrong doer, instead he is held liable. to pay damages to the person against whom he has committed the wrongful act. It is thus evident that institution of a civil suit against the defendant, i.e. the wrong doer is the only remedy available under the law of tort. The principle that underlies the determination of liability in tort is expressed by the maxim. "where there is a right, there is remedy". This in other words means where there is no wrong i.e. violation of legal right, there is no legal remedy. The legal remedy available under the law of tort is in the form of damages. Non-liability of the defendant is indicative of the fact that the alleged violation of right against the defendant has no legal existence:As rightly observed by Dr. Winfield, the category of tort is never closed, the reason being that the concept of legal liability keeps on changing with changes in the social circumstances. It has generally been accepted that a person is held liable for his wrongful act unless he has a valid justification for committing that act.Foundation of Tortious Liability:The English law of tort contains a large and detailed body of rules defining with precision rights and duties and their limits for the purpose of public good. There are general rule which create liability and also the rules which provide immunity from lability which are generally called the exceptions or justifications for tort. In between the two, the area of disputed cases is so vast that the Courts have to play the role of an impartial umpire and decide the case either way i.e, hold the defendant liable and order payment of damages. to the plaintiff or exempt him from liability there being a valid justification for his wrongful act.Dr. Winfield rightly stated that foundation of tortious liability has always remained a debated issue ever since the evolution of law of tort. There are two conflicting views in this regard which have been discussed in the preceding chapter. According to Winfield, every infringement Right (i.e. injuria) will be a tort unless there is a legal justification for that injury. In other words, all unjustifiable violations of right will be regarded as tort. This is why the Courts have the discretion to innovate new torts taking into consideration the circumstances of the case before them. He opined that the categories of tort are never closed. This view has also been supported by Federick Pollock. Illustrating. the point further Dr. Winfield observed, that the doctrine of absolute liability was incorporated as an important principle of law in tort through. the House of Lord's decision in Rylands v. Pletcher) handed down in 1868. Similarly, prior to the decision in Donoghue v. Stevenso, the manufacturer of chattels was not held liable for the damages caused to the consumers for want of privity of contract between the two. But this myth was exploded by that decision of 1932. Nervous shock was recognised as a tort consequent to decision in Wilkinson v. Downto, in 1897.The other view regarding tortious liability as expounded by Salmond and Stallybrass, the editor of Salmond's book on torts suggests that liability cannot extend beyond those torts which have already been recognised as tort. If the' defendant's wrongful act does not fall under any named or labelled tort, he cannot be. held liable, meaning thereby that Courts have no power vested in them to innovate new torts to bring defendant within the fold of liability. But this view has not been supported by modern writers on the ground that like new crimes, evolution of new torts is inevitable with the development and progress of human society. In the present millennium, the multi-faceted development of information technology has given. rise to new crimes which were hitherto unknown to mankind. Therefore, the likelihood of new torts being included in the existing law of tort through judicial intervention cannot be ruled out. In this' context, the High Court of Madras in Lala Pannalal v. Kasturi Chand Ramji, has observed that it would be undesirable to work out an exhaustive classification of torts and expect that Courts should not cross the limit of such classification, nor would such venture meet the interest of justice. With the ever increasing violation of human rights, the evolution of new torts seems to be inevitable.This view has been endorsed by the American Restatement of Tort wherein it is stated that "the entire history of the development of tort law shows a continuous tendency to recognise as worthy of legal protection interests which previously were not protected at all.Mental Element in Tortious Liability:It is well known that mens rea is an essential element of a crime. A person cannot be convicted for an offence unless his mens rea, i.e. guilty intention is proved. This in other words means that act alone cannot constitute a crime unless it is accompanied by mens rea. This has been expressed by the latin maxim "actus non facit reum, nisi mens sit rea" which literally means that an act is not a crime unless it is committed with a particular criminal intention. What constitutes mens rea is laid down in the case of offences defined in the Indian Penal Codes But unlike this, motive is generally not relevant in tort cases because the ultimate object of law of torts is redressal of wrong caused to the plaintiff by damages to be paid by the defendant. It is only in certain specific torts that defendant's motive of doing the wrongful act may be taken into consideration for determining his liability, the reason being that the very nature of these torts is such that they cannot be committed, without the presence of bad motive or evil intention.: This is one of the reasons why these specified torts are also. crime because mens rea or guilty intention is an essential element of a crime. In these cases, the aggrieved person has à choice either to sue the defendant for an action in tort or institute criminal proceedings against him. In the former case, he may claim award of damages while in the latter, he can get the wrongdoer punished under the penal law.In tort cases it is generally immaterial whether the defendant did the wrongful act intentionally, unintentionally or maliciously because the main consideration before the Court in deciding these cases is to see whether the act complained of by the plaintiff constitutes violation of any of his legal right, if so, the plaintiff will succeed and recover damages from the defendant. But if the act does not constitute an infringement of legal right of the plaintiff, his case will be dismissed. however maliciously it might have been done by the defendant.! This, in other words means that it is not necessary that good motive of the defendant would absolve him from liability nor does it mean that his malicious intention would necessarily render him liable in torts. The substantial question for the Court to decide in tort cases is whether the act of the defendant has resulted into plaintiff's violation of legal right, if yes, it would render him liable, otherwise not.Distinction between Motive and Intention:Though motive and intention appear to be synonymous terms, there is a sharp distinction between the two. The immediate purpose of doing an act. is called intention whereas the ultimate object of that act is its motive. Motive is related to some benefit or satisfaction which a person seeks to achieve by his act; but it is not so in case of intention: For example, if a man administers poison to a person his intention is obviously to kill that person but his motive may be to obtain the property of that person after his death on the basis of Will executed by that person. Likewise, If a person In order to save his children from starvation, enters into another. person's kitchen and steals away a few loaves of bread, his intention is evil, that is committing theft but his motive is undoubtedly good as he wants to save the life of his children who were starving to death. This illustration shows that though the intention behind doing an act may be bad but it might have been done with good motive.Intention, Negligence and RecklessnessIntention is an internal element emanating from the human mind. Therefore, a man's intention can be known after he does an overt act; A person cannot be said to have done an act intentionally unless. he knows the likely consequences of that act and expects those consequences to follow. If a person knows or foresees the consequences of his wrongful act and yet does it without bothering about those consequences, his carelessness will he termed as negligence: In other words, negligence lies in not foreseeing the likely conse1uences of an act. Recklessness is an aggravated form of negligence which may also be called as "gross negligence". The distinction between intention, negligence and recklessness can better be understood by an illustration. If a person deliberately hits a man going on the road so that man may be killed, it is an intentional act. But where a person knowing it well that driving car with excessive speed in a crowdy market is dangerous and risky still does not reduce the speed, it will be an act of negligence because he does not care about the consequences of his act. Still further, if he is sure that an accident is bound to take place if he continues driving rashly in the busy market, it will be an act of his recklessness. Thus, it would appear that aggravated form of negligence becomes recklessness.Fault as a basis of liability:In certain circumstances the mental element or Intention of the defendant is immaterial for deciding his liability and he is held liable although he may have had no intention of in doing that act. Thus, mental element is not at all relevant in such. cases and liability of the defendant will arise even without any wrongful intention or negligence on his part. For example, purchaser of stolen goods will be liable even though he bona fide believes that the seller of that goods is its real owner. Similarly, in case of defamation the defendant will be held liable despite the fact that he has no intention to defame the plaintiff and makes the statement innocently. For instance, in Tolley v. J. S. Fry and Sons. Lid. The plaintiff was a famous amateur golf player. The defendant in his advertisement of chocolates published a caricature of Tolley with a carton .of chocolates: sticking prominently out of Tolley's pocket in order to show that even a golf champion like Tolley was fond of defendant's chocolates. The plaintiff (Tolley) was not consulted or informed about this advertisement. He, therefore sued the defendant alleging that the said advertisement had brought him disrepute because it carried a message among his colleagues and friends that he had "prostituted his status for advertising" which was a conduct unworthy of his reputation as a golf champion. The defendant contended that choosing of the plaintiff's photograph for the advertisement was itself indicative of the fact that the defendant held the plaintiff in high esteem as an eminent golf player: But the Court of Appeal rejected the defendant's plea and held him liable for innuendo (defamation) as the advertisement was defamatory for a person of plaintiffs repute.In case of vicarious liability such as master's liability for the wrongful act of his servant committed in course of employment or parent's lability for tortious acts of their children or principal's liability for the acts of his agent, the defendant i.e. the master, parent or. The principal, as the case may be, is held liable though he is not at fault or there is no negligence on his part, Yet another area where the principle of lability without Tault (negligence) extends is cases falling under strict liability rule which is also known as the rule in Rylands v. Fletcher. According to this rule, if a person takes non-natural user of his land by collecting there something which is likely to do mischief if it escapes, he will be liable for. the damage caused due to escape of that thing Irrespective of the fact whether he was negligent or not negligent for such escape: This in other words means that in case's covered under the Rylands v. Fletcher rule, the principle of strict lability applies and it is not necessary for the plaintiff to prove the fault, negligence or malice of the defendant.The principle extends to damages caused due to escape of dangerous chattels, explosives, dangerous animals, electricity, water etc. As rightly pointed by: Justice Holmes, the application of the principle of strict liability in law of tort indicates that in cases involving damages caused due to dangerous or hazardous activities, the emphasis is generally on consequences rather than the fault or negligence: of the defendant. In such cases the law imposes absolute duty on the defendant and he is held liable whether the wrongful act was done intentionally without just cause or excuse or it was done with utmost care and caution.As regards liability in law of tort the writers have expressed two contrary views. According to one view which was propounded by Holmes, in the beginning 'fault' was the basis of liability, i.e. a person would be held liable only if he was at fault and did the act negligently. But in course of time with the evolution of the welfare states, the fault theory gave way to the principle of strict liability and now under certain circumstances à person may be held liable even though he was not negligent. But Wigmore and Holdsworth have expressed a contrary view and asserted that in the evolutionary stages of the development of law of torts the guiding principle for determining liability in torts was that a person would be liable for all the consequences of his act whether he did it intentionally or unintentionally: or negligently or carefully. That is to say, the principle of strict liability suggesting that a person should act at his own peril and bear all the consequences of the act was holding the field. But in modern time the liability for tort is being determined on the basis of foreseeability test. Salmond, however, observed that none of the aforesaid two views regarding basis of liability in torts are wholly correct. According to him, the basis of liability shifts like a pendulum of a clock moving from strict liability to "fault' as a basis of liability and again turning towards the strict liability. In the present time the liability in law of torts is determined applying the principle of remoteness of damages. According to recent Judicial trend, the criterion of liability in tort is not so much on 'culpability' but on whom should the risk fall, that is distribution of losses through social insurance is one of the methods to ensure damages to the victim of wrongful act even though the defendant may not have his own means to pay the damages. Remoteness of Damages:At times the consequences of a person's wrongful act may be endless and remote which may create problem in determination of his lability. For instance, where a cyclist negligently dashes against a pedestrian who was carrying an explosive bomb and in result the bomb explodes killing the pedestrian and four others who were passing through the road and a nearby shop is set on fire and virtually destroyed. Now the question is: can the cyclist be held liable for all those consequences? Under these circumstances a person may be held liable only for the consequences which not too remote. In other words, a person cannot be held liable for the ad infinitum consequences of his wrongful act: Instead, he will be liable only for the consequences which an ordinary person under those circumstances can foresee. Commenting on this, Lord Wright in Liesbosch Dredger v. S.S. Edison observed that lay cannot take account of all the consequences that follow a wrongful act, because it would be endless (infinite) for the law to take: Into consideration consequences of consequences. It; therefore, follows that a fine line of. demarcation has got lo be drawn between the consequences of an act which are remote and those which are not too remote and the liability should extend only to the defendant's acts which are not too remote.In Scot v. Shepherred, the defendant Shephered, mischievously threw a lighted squib (burning end of a cigarette) into a market place. It fell on the shed where Yates had his ginger bread shop. A person named Willis, in order to prevent injury to himself and Yate's shop, picked up the squib and threw it across the road and it fell on the shed of Royal who took it and threw across when it struck the plaintiff Scot's eye and caused him serious injury. It was held that the injury to the plaintiff was direct and immediate cause of defendant's act of throwing the lighted squib into the market place and Willis and Royal were the intermediate agents who acted involuntarily and for self protection, andtherefore, defendant Shepherd was liable to pay damages to Scot for the injury caused to him In Haynes.V, Harwred, child who was injured by meddling with a cart and horse which was left unattended on a public road by the defendant's servant was held entitled to recover. But had an adult plaintiff under similar circumstances been injured, he would not have been held entitled to recover according to foreseeability test. Consequences which an ordinary person under those circumstances cannot foresee are held to be loo remote and the defendant's liability does not extend to such remote damages. In Lampert v. Eastern National Omnibus Co. the plaintiff, a married woman, was injured due to the negligence of the defendant and resulting into her severe disfigurement. Sometimes later, she was deserted by her husband. She. sued the defendant for injuries, disfigurement and desertion. It was held that the real cause of desertion of the plaintiff by the husband was not her disfigurement but estranged relations between them, which existed even before the accident and therefore, the defendant was not liable for plaintiff's desertion by her husband.In Haynes v. Harwred, the defendant's coachman negligently left the horse-van without any attendant in the crowded street. The children playing near the van mischievously threw stones at the horses with the result they moved ahead. A policeman who was. standing there saw the horse-van started moving unmanned and apprehending that the women and, children on the road may not be hit by the horses and get injured, he came in front of the van to stop-the horses and got seriously injured in an attempt to rescue others. When sued by the plaintiff (policeman), the defendant pleaded that firstly it was a voluntary act of the plaintiff to put himself in danger, and secondly the injury was due to the intervention of third party.! i.e., the children who pelted stone at the horses and caused them to move, therefore, defendant was not liable due to remoteness of damages. But rejecting the plea of the defendant the Court. held him liable to plaintiff because the injuries caused to the plaintiff were natural and probable consequences of the defendant's wrongful act and therefore, they were not remote, In order to decide whether the injures (i.e. damages) caused due to the wrongful act of the defendant are remote or not, there are two tests, namely,1) the Directness Test and2) Foreseeability Test or the test of reasonable foresight.1. Directness Test:The directness test was for the first applied by the English Court of Appeal- in the case of Re Polemis, in which the defendant was held liable for all the consequences of his wrongful act whether he could have foreseen them or not, because consequences which directly follow a wrongful act are not too remote. In this case, the defendants chartered a ship. The cargo to be carried by them included some tins containing benzine and petrol. Some of the tins were leaking and the liquid got collected in the hold of the ship. While handling the planks, a plank fell into the hold due to the negligence of the defendant's servants and as a result of this, the ship was totally destroyed due to fire. The plaintiff claimed damages for the (i) loss of ship, (ii) loss of business for the period intervening purchasing a new ship, and (iii) extra expenditure on purchase of a new ship: The Court awarded the owner of the ship £ 2,00,000 being direct consequences of the negligent act of defendant's servants. Thomas Edward Scrutton, L.J., observed, "once the act is negligent; the fact that its exact consequences were not foreseen is immaterial".In a later case i.e. Liesboscli Dredger v. Edision,3 the dredger Liesbosch was sunk due to the negligence of the defendant (Edison). The owners of this dredger required. it for the performance of a contract with a third party, but since they were too poor to purchase a new dredger, they had hired this one at an exorbitant rate. They sued the defendant for (i) the price of the dredger, and (li) hire charges which they had to pay from the date of sinking of Liesbosch to the date they could actually purchase a new one. The House of Lords allowed damages for the first head equivalent to the market price of the dredger, but disallowed the damages claimed under the second head, i.e, loss suffered in carrying one contract with third party from the date of sinking of dredger to the date when another dredger could reasonably have been put to work because the Court considered this loss due to extraneous cause i.e. poverty of the plaintiff and therefore, it was too remote. In Smith v. London and South Western Rly Co., the railway company negligently allowed a heap of trimmings of hedges and grass near railway line during hot weather. The spark coming out of the railway engine set fire to the hay and grass which spread and reached the plaintiff’s cottage which was completely burnt. The railway company was held liable even though it could not have foreseen the loss to the cottage which was far away from the railway track.2. The test of Reasonable foresight (Foreseeability Test)It was latter on noticed that the problems involved in tort cases are so varied and. Infinite that no single test could uniformly be applied to all the cases. The cause and effect test could be applicable to only a limited number of cases wherein direct consequences of a wrongful act could be ascertained. However, considering the inadequacies of directness test, the Judicial Committee of the Privy Council considered it proper to decide the appeal before it in Overseas Tankship (UK) Ltd v. Morts Dock and Engineering Co. Lid., applying the foreseeability test which is also termed as the test of reasonable foresight.The facts of the case in short were as follows:The Wagon Mound, an oil burning vessel, was chartered by the appellants, Overseas Tankship Ltd., and was docked at Sydney port for taking fuel oil. The respondents, Morts Dock Co. owned a wharf about 600 feet away from this vessel where the repairs of a ship and some welding operations were being done. Due to the negligence. of the appellant's servants a large quantity of oil spread over the water near respondent's wharf. The melted metal from the respondent's wharf fell on floating water which ignited the fuel oil on the water and the fire caused severe damage to the wharf and to other equipment. The trial Court held the Overseas Tanksbip Ltd. liable as the damage caused to the wharf was direct consequence of defendant's act. In appeal, the decision was conferred by the Supreme Court of New South Wales on the basis of directness test. On appeal, the Privy Council observed that Re Polemis was no longer a good law and reversed the decision of the Supreme Court applying the 'reasonable foresight. test. It was held that a reasonable man under the circumstances of the case, could not foresee such damages and, therefore, the appellants were held not liable for negligence of their servant even though their negligence was the direct cause of damage caused to the wharf Consequent to the decision in Wagon Mound,3 the directness test for determining liability in torts was substituted by foreseeability test. The principle underlying the foreseeability test was that the damage complained of should be of such a kind as reasonable person under the circumstances of the case could have foreseen. For example, in Chadwick v. British Transport Commission, a rescuer helping voluntarily at the scene of railway accident near his home, suffered shock without any physical injury. When sued for damages, the railway was held liable. The Court held that the: mental shock on seeing the sight of accident and casualties to passengers was reasonably foreseeable and the risk taken by the rescuer was not exactly the same as that of a passenger who was travelling in the accidented train. He: was, therefore, entitled for damages.In king v. Phillips, a laxicab driver negligently backed his laxi which hit a small boy who Wasion y niovcle: The injury to the boy and his tricycle was slight. but his mother looking out of an upstair window about 60 metres away. heard scream of the boy and the tricycle under the taxicab bul could not see the boy. Consequently, she suffered nervous shock thinking that her child might have been seriously injured, though in fact, the boy eventually came home. The Court of Appeal dismissed her claim for damages against the negligent taxicab driver and held that the driver could have reasonably foreseen an injury to the child but could not be expected to have foreseen an injury or nervous shock to the boy's mother who was far away and was out of his sight. In other words, there was no duty on the part of the driver lo anticipate emotional shock to the mother who was away from the road, hence the damages were too remote.In Hambrook v Stokes Bros., the defendant's servant negligently left a motor lorry. unattended in a narrow steep. road with the result it ran down the road and a woman who was walking there became. frightened for the safety of her children whom she had just then left farther down the road. She suffered a severe nervous shock and illness and finally died. Her husband filed a suit for damages for loss, of consortium. The defendants admitted their negligence but pleaded that damages were too remote; The Court of Appeal, however, held the defendants liable and ruled that damages were foreseeable by the defendant's servant. In yet another case, namely, Bourhill v: Young, plaintiff, a pregnant fisher woman, had alighted from a tram and was unloading her fish basket from the offside of driver's cabin. Just at the same moment a motor cyclist passed the tram on the other side and ran into a motor car; and sustained injuries resulting in his death. The fisher woman heard the noise of the collision and seeing the blood spread at the place of accident, she sustained a shock with the result she had a miscarriage and gave birth to a still-born child. She also, suffered from other physical disorders. Since the collision was caused due to cyclist's negligence in driving at an excessive speed, she sued his executor for damages. The House of Lord dismissed her claim on the ground that there was no breach of duty on the part of deceased motor-cyclist towards her, as he could not be expected to anticipate that any person on the other side of the road may sustain an emotional or physical injury by his careless driving. The damages claimed by the plaintiff were, therefore, too remote. The Court of Appeal, applying the reasonable foresight test in S.C.M. (UK) Ltd. V. W.]. Wilittall and Son, held the defendant liable for the damage caused to the plaintiff. In that typewriter factory. The plaintiff contended that the power failure had caused damage to materials and machines of the factory resulting in loss of production, which could. Have been foreseen by the defendants. Accepting the plaintiff's plea, the Court allowed damages for which defendant's were held liable.