Notes on Torts

The law of Torts is part of the common law,

" 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 " ! Union Carbide Corporation v Union of
India, "9## $P%& '()
*s stated by %ord +carman, " The common law, which in a constitutional conte-t
means judicially developed equity, covers everything which is not covered by statutes ! ! !
the function of the court is to decide the case before it, even though the decision may
require the e-tension or adaptation of a principle or in some cases the creation of a
new law to meet the justice of the case, ! ! " ! Macloughlin v. O'Brian, ."9#/0 *ll 12
/9# .3")0 .4%0 This is a good basis for the application of the law of torts
5ur +upreme Court in respect of law of torts has said ! ! ! if an occasion arises the Court
can be more progressive than the 1nglish Courts in respect of law of torts and can evolve new
principle of tort liability not yet accepted by the 1nglish law In the words of 64*78*TI C& " 8e
have to evolve new principles and lay down new norms which will adequately deal with new
problems which arise in a highly industrialised economy 8e can not allow our judicial thin9ing to
be constricted by reference to the law as it prevails in 1ngland or for the matter of that in
any foreign country 8e are certainly prepared to receive light from whatever source it
comes but we have to build our own jurisprudence whatever source it comes but we
have to build our own jurisprudence " 4ence we are fully justified in applying law of torts in
ban9ing and industrial finance
$ore recently concerning law of torts, the +upreme Court &udge, +*4*I & observed, " Truly
spea9ing 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 premitive to class
strictly or close finally the ever!e-panding and growing hori:on of tortuous liability 1ven for
social development, orderly growth of the society and cultural refineness the liberal approach
to tortuous liability by courts is more conductive"
//- - -- The word ; tort ' is derived from the %atin term tortem to twist and implies
conduct which is twisted or tortious It now means a breach of some duty independent
of contract giving rise to a civil cause of action and for which compensation is
recoverable ! ! ! wor9able 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
* tort is a species of civil injury or wrong ! ! ! no civil injury is to be classed as a tort unless
the appropriate remedy for it is an action for damages It is usual to say that a person is liable
in tort irrespective of whether or not a judgment for damages has been given against him 4e
is liable from the moment he commits the tort
The %aw of Torts governs actions for damages for injuries to certain 9inds of rights, li9e the rights
to personal security, property and reputation < tort < derived from a =rench word meaning in its
etymological sense, a > twisting out > and in a popular sense, a croo9ed act, a transgression from
straight or right conduct, a wrong In this generic sense it .ie torts0 was introduced into the
terminology of 1nglish law by the =rench!spea9ing lawyers and judges of the courts of the
?orman and *ngevin @ings of 1ngland $ost of the technical terms of 1nglish %aw are =rench in
origin, ! ! ! usual to spea9 A < *ctions in Contract < and < *ctions in Tort < Br 8infield has made a
critical e-amination of many possible or current definitions of law of torts and the one suggested
by him is as followsC > Tortious liability arises from the breach of a duty primarily fi-ed by the lawC
such duty is towards persons generally and its breach is redressible by an action for unliquidated
damages The early common law was primarily concerned with remedies and not with rights and
duties The damages which a plaintiff has a right to recover in an action for a tort belong to the
category 9nown as < unliquidated damages < This phrase is in law of torts applies to cases where
a plaintiff claims not a predetermined and inelastic sum but such an amount as the court in its
discretion is at liberty to award, though in his pleading, he may specify a particular amount The
phrase < liquidated damages < refers to a sum which has been predetermined by contract or
statute! !! Bamages are usually intended to be a pecuniary compensation for the injuryC they are
then called substantial damages They may be awarded with a view to punish the defendant C
they are then called e-emplary, punitive or vindictive damages
Tort, as we have seen, aims principally at the prevention or compensation of harm whereas
the > core > of contract is the idea of forcing certain promises ! ! ! mere failure to act will not
be actionable in tort ! ! ! legally binding ! ! ! damages can not be claimed in tort for a > loss of
e-pectation > as opposed to > out of poc9et > losses, or, as it is sometimes e-pressed,
damages in contract put the plaintiff in the position he would have been in had the contract
been performed, whereas damages in tort put him in the position he would have been in had
the tort not been committed ! ! ! plaintiff having the benefit of whichever is more favourable
to him on the particular facts ! ! primary duty A for breach of which tortious liability is
imposed The breach of such a duty gives rise to a remedial duty, ie a duty to ma9e redress,
and this is always owed to a specific person or persons whatever the source of the liability
The measure of damages must also include the following aspects:
2. 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 7rant of e-emplary damages in certain cases will show
that deterrent of wrong!doers is also another aim of the law of torts DD distinction between a
Contract and a Tort !!! * contract is founded upon consent , a tort is inflicted against
or without consent, * contract necessitates privity between the parties to it , in tort no
privity is needed * tort is a violation of a right in rem ie of a right vested in some
determinate person, either personally or as a member of the community, and available
against the world at largeC whereas a breach of contract is an infringement of a right in
personam, ie 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 ie law of
torts and law of contracts 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
contract, the duty is fi-ed by the will and consent of the parties, and it is owed to a definite
person or persons! ! ! +econdly, in a breach of contract, the motive for the breach is
immaterialC in a tort, it is often ta9en into consideration Thirdly, in a breach of contract,
damages are only a compensation In an action for tort to the property, they are generally
the same 6ut 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 li9e
which aggravate the plaintiffEs injury 4e may be awarded aggravated damages in the law
of torts 1-emplary damages to punish the defendant and to deter him in future can also be
awarded in certain cases in tort but rarely in contract *nother distinction is that the law of
torts is aimed at allocation or prevention of losses whereas the law of contract aims to see
that promises made under a contract are performed +ame act may amount to a tort and a
breach of contract eg father employing a surgeon to treat his injury There may be
concurrent contractual and tortious duties owed to the same plaintiff who has a choice of
proceeding either in tort or contract e-cept 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 e-clusively on his
contractual claim %ord 6ridge in the conte-t of an auditor observed, In advising the client
who employs him the professional man owes a duty to e-ercise that standard of s9ill 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
The law of torts is fashioned as > an instrument for ma9ing people adhere to standards of
reasonable behaviour and respect the rights and interests of one another A violation of protected
interests of a person A remedy by giving him compensation A 6y > 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 see9 to satisfy, and of which therefore , the ordering of human relations in
civili:ed society must ta9e account > A * protected interest gives rise to a legal right which in turn
gives rise to a corresponding legal duty +ome legal rights are absolute in the sense that mere
violation of them leads to the presumption of damage A *n act which infringes a legal right is a
wrongful act A To constitute a tort or civil injury ."0 there must be a wrongful act committed by a
person ./0 the wrongful act must give rise to legal damage or actual damage and .30 the wrongful
act must be of such a nature as to give rise to a legal remedy in the form of an action for
damages A The crucial test of legally wrongful act or omission is its prejudicial effect on the legal
right of another! <legal right < defined by *F+TI? as 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 answer to a
duty lying on a party or parties0 other than the party or parties in whom it resides 2ights available
against the world at large are numerous A sub!divided into private rights and public rights
Private right include all rights which belong to a particular person to the e-clusion of the
world at large These rights are " ." 0 rights of reputationC ./0 rights of bodily safety and freedomC
.30 rights of property ! ! ! these three rights will be found to embrace all the personal rights
that are 9nown to the law " DD To every right there corresponds an obligation or duty If the right
is legal, so is the obligation ! ! ! * right in its main aspect consists in doing something,
or receiving and accepting something +o an obligation consists in performing some act or in
refraining from performing an act ! ! ! The duty with which the law of tort 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 DD %iability for a tort, therefore, arises 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 A < !amage < 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 the court is called >
damageG DD =rom the point of view of presumption of damage, rights are classified into ."0
absolute and ./0 qualified 8hen 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 In case of qualified right, the injury or wrong is not
complete unless the violation of the right results in actual or special damage A The real
significance of legal damage is illustrated by two ma-im namely in"uria ine damno and damnum
ine .or ab#ue0 in"uria. A damnum is meant damage in the substantial sense of money, loss of
comfort, service, health or the li9e A in"uria is meant a tortious actC ! *ny unauthorised
interference , however, trivial, with some absolute right conferred by law on Hualified person, is
an injury A in"uria ine damno, ie the infringement of an absolute private right without any actual
loss or damage, the person whose right is infringed has a cause of action 1very 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 actionable per e. In this case law presumes damage because certain acts are so
li9ely to result in harm owing to their mischievous tendency that the law prohibits them absolutely
A damage need not be proved 8henever a person has sustained what the law calls an <injuryE
and in this case he may bring an action without being under the necessity of proving special
damage because the injury itself has ta9en to imply damage * violation of a legal right committed
9nowingly gives rise to a cause of action !
The measure of damages must also include the following aspects,
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 povisions ot the +pecific
2elief *ct for declaration and injunction damnum ine in"uria ie actual and substantial loss
without infringement of any legal right, no action lies A 8hen an act is lawful or legally done,
without negligence, and in the e-ercise of a legal right, such damage as comes to another
thereby is damage without injury *ctual damage is the gist of action in ./0 menace .(0 slander
.e-cept in four cases0 .'0 deceipt .I0 conspiracy or confederation .#0 distress damage feaant .90
negligence .")0 nuisance consisting of damages to property DD * 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 tort is an action for damages DD
The law of torts is said to be a development of the ma-im ubi "u ibi remedium .there is no wrong
without a remedy0 A if all the remedies for enforcing a right are gone, the right from practical point
of view ceased to e-ist
&udges are cautious in ma9ing innovations and they seldom proclaim their creative role
?ormally a new principle is judicially accepted to accommodate new ideas of social welfare or
public policy only after they have gained their recognition in the society The general
principles behind the tort of negligence is that < you must ta9e reasonable care to avoid acts
or omissions which you can reasonably foresee would be li9ely to injure your neighbour
The measure of damages must also include the following aspects:
To constitute a tort there must be a wrongful act The word >actG in this conte-t is used in a
wide sense to include both positive and negatice acts ie acts and omissions! difference A
=ailure to do something in doing an act is not an omission but a bad way of performing the
act A *n omission is failure to do an act as a whole DD 7enerally spea9ing the law
does not impose liability for mere omissions *n omission incurs liability when there is a duty
to act A drowning child, stranger and parent A actionable omission
* voluntary act may be distinguished from the other by dividing into ."0 a willed muscular
contraction ./0 its circumstances and .30 its consequences *n act is wrongful because of the
circumstances in which it is performed and the consequences which it produces =or
instance, to croo9 the forefinger with a certain force is the same act whether the trigger of a
pistol is ne-t to it or not It is only the surrounding circumstances of a pistol loaded and
coc9ed, and of a human being in such relation to as to be manifestly li9ely to be hit that ma9e
the act a wrong A involuntary acts are those where the actor lac9s the power to control his
actions and involuntary omissions are those where the actorEs lac9 of power to control his
actions renders him unable to do the act required *n involuntary act does not give rise to
any liability A necessity is a plausible defence
The measure of damages must also include the following aspects:
1ven a voluntary act, e-cept in those cases where the liability is strict , is not enough to fasten
liability and it has to be accompanied with requisite mental element ie malice, intention,
negligence or motive to ma9e it an actionable tort assuming that other necessary ingredients of
the tort are present! Malice in the popular sense means spite or ill!will 6ut in law malice has two
distinct meanings , ."0 Intentional doing of a wrongful act and ./0 Improper motive A $alice in the
first sense was described by 6*J%1J & in the following words , > $alice in common acceptation
means ill!will against a person, but in its legal sense it means a wrongful act, done intentionally,
without just cause or e-cuse If I give a stranger a perfect blow li9ely to produce death, I do it out
of malice, because I do it intentionall$ and without just cause or e-cuse A * wrongful act, done
9nowingly and with a view to its injurious consequences, may be called maliciou. 6ut such
malice derives its essential character from the circumstances that the act is intentionally done and
constitutes a violation of the law A malice in the first sense is also 9nown as > malice in la% &
which means an act done wrongfully and without reasonable and probable cause and not as in
common parlance an act dictated by angry feeling or vindicative motive > Malice in la% & is >
implied malice & when from the circumstances of the case, the law will infer malice $alice in
second sense is sometimes 9nown as > e'pre malice &, & actual malice & or > malice in fact &
$alice in this sense ie improper motive is for e-ample relevant in the tort of malicious
prosecution Intention, Negligence and Recklessness A Intention is an internal fact, something
which passes in the mind and direct evidence of which is not available ! an act is intentional as to
its consequences A 2ec9lessness is sometimes called > 7ross negligence G MotiveA is the
ulterior object or purpose of doing an act A differs from intention in two ways =irst, intention
relates to the immediate objectives of an act, whereas motive refers to the ulterior objective
+econdly motive refers to some personal benefit or satisfaction which the actor desires whereas
intention need not be so related to te actor A motive is generally irrelevent in tort A The
e-ceptional cases where motive is relevant as an ingredient are torts of malicious prosecution,
malicious abuse of process and malacious falsehood $otive is also relevant in the torts of
defamation, nuisance and conspiracy In some cases there may be a plurality of purposes and it
may become necessary to decide as to what is the predominant purpose =or e-ample if persons
combine to protect their own interests and to damage another person they would be liable for the
tort of conspiracy if the predominant purpose is to cause damage and damage resultsC but if the
predominent purpose is protection of their legitimate interests they would not be liable even if
damage is caused to another person
The measure of damages must also include the following aspects,
The term > malfeaance > applies to the commission of an unlawful act It is generally applicable
to those unlawful acts, such as trespass, which are actionable per e and do not require proof of
intention or motive The term > mifeaance > is applicable to improper performance of some
lawful act for e-ample when there is negligence The term > non-feaance > applies to the
omission to perform some act when there is an obligation to perform it
right even if act done intentionally and there is damage A mental element such as intention,
negligence, malice or motive in association with an act or omission which is violative of a right
recognised by law plays an important role in creating a liability Tortious liability here has an
element of fault to support it A sphere of tortious liability 9nown as absolute or more properly
strict where the element of fault is conspicuously absent ie liability without fault A important
e-ample of strict liability is the rule in ($land v )letcher. $ore recent e-ample is M.C. Mehta v
Union of India
1nglish %aw - Crown was not liable in tort at common law for wrongs committed by its servants in
the course of employment not even for wrongs e-pressly authoised by it - Crown Proceedings
*ct "9(K A effect of the *ct in other respect, spea9ing generally, is to abolish the immunity of the
Crown in tort and to equate the Crown with a private citi:en in matters of tortious liability The
Crown is now vicariously liable for torts committed by its servants in the course of their
employment if committed in circumstances which would render a private employer liable
Indian %aw A Crown was not answerable for the torts committed by its servants have never been
applied in India! earlier 1ast India Co A now *rt 3))."0 of Constitution of India
+C in *tate of (a"athan v Mt +id$a%ati stated > A there is no justification, in principle or in
public interest, that the +tate should not be held liable vicariously for the tortious act of its servant
> It is well settled now that the +tate is reponsible for the tortious acts of its employee A *I2 "99)
+C '"3 p '"I, +C in ,ilbati Behra v *tate of Oria, L12$* & observed > A *ward of
compensation under *rt 3/ or //I A is a remedy available in public law based on strict liability
for contravention of fundamental rights to which the principle of sovereign immunity does not
appy , even it may be available as a defence in private law in an action based on torts >
The measure of damages must also include the following aspects,
The underlying philosophy behind the statutory immunity is that the lesser private right must yield
to the greater public interest The statutory authority e-tends not merely to the act authorised by
the statute but to all inevitable consequences of that act If no compensation is given, that affords
a reason, though not a conclusive one, for thin9ing that the intention of the legislatur was, not that
the thing should be done at all events, but only that it should be done, if it could be done, without
injury to others 6ut the powers conferred by the legislature should be e-ercised with judgment
and caution so that no unnecessary damage be done If the damage could have been prevented
by the reasonable e-ercise of the powers conferred, an action can be maintained It is negligence
to carry out the wo9 in a manner which results in damage unless it can be shown that that and
that only was the way in which the duty could be performed DD 8here the terms of a statute are
not imperative, but permissive, the fair inference is that the legislatue intended that the discretion,
as to the use of general powers thereby conferred, should be e-ercised in strict conformity with
private rights
DD 4arm suffered voluntarily does not constitute a legal injury and is not actionable This pronciple
is embodied in the ma-im volenti non fit in"uria .where the sufferer is willing no injury is done0 *
man cannot complain of harm to the chances of which he has e-posed himself with 9nowledge
and of his free will
The measure of damages must also include the following aspects,
This e-pression ie necessity if based on the ma-im alu populi uprema le' .the welfare of the
people is the supreme law0, a ma-im founded on the implied assent on the part of every member
of society, that his own individual wellfare shall, in case of necessity yield to that of the community
and that his property, liberty and life, shall under certain circumstances, be placed in jeopardy or
even sacrificed for the public good DDThere is authority for the view that even a private person as
distinguished from the +tate may have a defence of necessity A a balance is to be struc9
between competing sets of values
DD 1very person has a right to defend his own person, property, or possession against an unlawful
harm! DD 1very person is entitled to protect his property 6ut he cannot for this purpose do an act
which is injurious to his neighbour A The means adopted to protect oneEs property must be
reasonable ie proportionate to the injuries which they are li9ely to inflict
DD ?othing is wrong of which a person of ordinary sense and temper would not complain Courts of
justice generally do not ta9e trifling and immaterial matters into account, e-cept under peculiar
circumstances, such as the trial of a right, or where personal character is involved This principle
is based on the ma-im de minimi non carat le' . the law does nto ta9e account of trifles 0 and is
recognised in the Indian Penal Code .s 9'0 The ma-im does not apply where there is an injury
to a legal right
DD The common law ma-im is actio peronali moritur cum perona . a personal right of actions
dies with the person 0
The measure of damages must also include the following aspects,
DD It has been said that the damages assessed must answer > what contemporary society would
allow the wrongdoer to hold up his head among his neighbours and say with their approval that
he has done the fair thing >, and that > the amount awarded must not be niggardly since the law
values life and limb in a free society in generous scalesG These emotive statements only mean
that the sum awarded must be fair and reasonable by accepted legal standards
DD 8here a man has more than one remedy for a tort, he elects to pusue one of them, giving up
the other, the other remedies are waived 4e cannot pursue them if he fails in the one elected
8aiver is e-press or implied , e-press, when the person entitled to anything e-pressly and in
terms gives it up, in which case it nearly resembles releaseC implied, when the person entitled to
anything does or acquiesces in something else which is inconsistent with that to which he is so
entitlled The phrase > waive the tort > does not mean that the tort itself is waivedC it is only the
right to recover damages for the tort committed, that is waived !DD ! distinction berween election
of remedies and election of substantive rights In a case when the election is between two
remedies, it is not complete merely by filing a suit to invo9e one remedy until judgement is
obtained whereas in a case where there is an election berween two inconsistent substantive
rights, the election may be complete at an earlier stage
The measure of damages must also include the following aspects,
DD *n act done for another by a person not assuming to act for himself, but for such other person,
though without any precedent authority, whatever, becomes the act of the principal, if
subsequently ratified by him In that case the principal is bound by the act, whether it be to his
detriment or advantage, and whether it be founded on a tort or a contract to the same e-tent as
by and with all the consequences which follow from the same act done by his previous authorty
Omnio ratihabitio retrorahitur et mandato prorio oe#uiparatur .every ratification of an act relates
bac9 and thereupon becomes equivalent to a previous request0
Three considerations arise before a person can be held liable for a tort by
ratification,
."0 It must be shown that the person ratifying the act ratified it with full 9nowledge of
its being tortious, or it must be shown that, in ratifying and ta9ing the benefit of the act,
he meant to ta9e upon himself, without inquiry the ris9 of any irregularity which might
have been committed, and to adopt the transaction right or wrong DDThe act of
ratification must ta9e place at a time, and under circumstances, when the ratifyin party
might himself have lawfully done the act which he ratifies
./0 5nly such act bind a proncipal by subsequent ratification as were done at the time
on the proncipalEs behalf 8hat is done by a person on his own account cannot be
effectually adopted by another If an act be done by a person on behalf of another, it is
in general immaterial whether the authority be given prior or subsequent to the act
*n act which is illegal and void is incapable of ratification * ratification ."0 of tort by a principal
will not free the agent from his responsibility to third person
DD -iabilit$ of Mater . /'tent of -iabilit$ DD The law is settled that a master is vicariously
liable for the acts of his servants acting in the course of employment A 1 !DD -iabilit$ of
Mater . Implied 0uthorit$ // In general, a servant in an emergency has an implied authoty to
protect his masterEs property DD +icariou -iabilit$ of tate // The state is liable vicariously for
the torts committed by its servants in the course of employment
// %I*6I%ITJ 6J *61T$1?T // In actions of wrong, those who abet the tortious acts are
equally liable with those who commit the wrong *person who procures the act of another is
legally responsible for its consequences *ll persons who aid, or counsel, or direct or join in
the committal of wrongful act, are joint tort!feasors
1very man has a right to have his reputation preserved inviolate The right of reputation is
ac9nowledged as an inherent general right of every person It is a "u in rem, a right good
against all the world A man's reputation is his propert, more valua!le than other
propert.
7ood name is rather to be chosen than great riches A degree of suffering occasioned by
loss of character and compare it with that occasioned by loss of property, the amount of former
injury far e-ceeds that of the latter
The measure of damages must also include the following aspects,
%aw of defamation li9e many other branches of law of torts provides for balancing of
interests A competing interest, interest in reputation and freedom of speech! wrong of
defamation protects reputation and defence to the wrong ie truth and privilege protect the
freedom of speech $any people in 1ngland feel that the present law of defamation gives too
much protection to reputation and imposes too great a restriction on the freedom of speech
The wrong of defamation may be committed by way of either by way of writing or its
equivalent , or by way of speech A term ;libel; is used for former and ;+lander; for the latter
* learned judge of $P 4igh Court holds that there may be a hybrid type of defamation not falling
within the recognised categories of libel and slander In
that case it was held that the bridegroom and his father in refusing to ta9e the bride to
their home after marriage in full ga:e of the guests committed the tort of defamation and damage
could be awarded for loss of reputation
$alicious prosecution is malicious institution against another of unsuccessful criminal,
ban9ruptcy or liquidation proceedings without reasonable or probable cause This tort balances
two competing principles, namely the freedom that every person should have in bringing criminals
to justice and the need for restraining false accusation against innocent persons
The foundation of the action lies in abuse of the process of the Court by wrongfully
setting the law in motion and it is designed to discourage the perversion of the machinery of
justice for an improper purpose
In an action for malicious prosecution plaintiff must prove, ."0 That he was prosecuted by
the defendant, ./0 proceedings complained of terminated in favour of plaintiff if from their nature
they were capable of so terminating, .30 prosecution was instituted against him without any
reasonable or probable cause, .(0 prosecution was instituted with a malicious intention, that is,
not with the mere intention of carrying the law into effect, but with an intention which was wrongful
in point of fact, .'0 he has suffered damage to his reputation or to the safety of person, or to the
security of his property Meveral caeIN
*n action will not lie for maliciously and without reasonable and probable cause instituting
an ordinary suit A sec 3'* of CPC, compensatory costs
To put into force the process of law maliciously and without any reasonable and probable
cause is wrongfulC and, if thereby another is prejudiced in property or person, there is that
conjunction of injury and loss for which an action will lie
The tort of malicious legal process differs from malicious prosecution in that the legal
process ta9en against a plaintiff is short of prosecution, ie when a process is obtained for arrest
of the plaintiff or for attachment of his property
Ingredients to be proved are same as in malicious prosecution e-cept that damage to
person or property must be established
+ec 9' of CPC A summary remedy
The measure of damages must also include the following aspects,
Though the limits of the tort of misfeasance in public office have been considered only a
few 1nglish cases, there is no doubt that the tort is well established
If the public officer acts with malice, in the sense of an tntent to injure, and damage
results the liability arose and the officer can be sued for the tort of misfeasance in public office
The tort will also be committed, in the absence of malice, if the public officer 9new both
that what he was doing was invalid and that it will injure the plaintiff
Tort is capable of being committed by a corporate body eg a city council
Note :- The above is just a brief of the principles of the law of torts. We have an
expertise in this field with full legal references. For the first time in the country we have
applied this law in ban!ing and "#T matters. We have the total grasp of the relevant and
material facts about ban!ing industries and finance in light of this law . With such
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The law of Torts is part of the common law,
" 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 " ! Union Carbide Corporation v Union of
India, "9## $P%& '()
*s stated by %ord +carman, " The common law, which in a constitutional conte-t
means judicially developed equity, covers everything which is not covered by statutes ! ! !
the function of the court is to decide the case before it, even though the decision may
require the e-tension or adaptation of a principle or in some cases the creation of a
new law to meet the justice of the case, ! ! " ! Macloughlin v. O'Brian, ."9#/0 *ll 12
/9# .3")0 .4%0 This is a good basis for the application of the law of torts
5ur +upreme Court in respect of law of torts has said ! ! ! if an occasion arises the Court
can be more progressive than the 1nglish Courts in respect of law of torts and can evolve new
principle of tort liability not yet accepted by the 1nglish law In the words of 64*78*TI C& " 8e
have to evolve new principles and lay down new norms which will adequately deal with new
problems which arise in a highly industrialised economy 8e can not allow our judicial thin9ing to
be constricted by reference to the law as it prevails in 1ngland or for the matter of that in
any foreign country 8e are certainly prepared to receive light from whatever source it
comes but we have to build our own jurisprudence whatever source it comes but we
have to build our own jurisprudence " 4ence we are fully justified in applying law of torts in
ban9ing and industrial finance
$ore recently concerning law of torts, the +upreme Court &udge, +*4*I & observed, " Truly
spea9ing 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 premitive to class
strictly or close finally the ever!e-panding and growing hori:on of tortuous liability 1ven for
social development, orderly growth of the society and cultural refineness the liberal approach
to tortuous liability by courts is more conductive"
//- - -- The word ; tort ' is derived from the %atin term tortem to twist and implies
conduct which is twisted or tortious It now means a breach of some duty independent
of contract giving rise to a civil cause of action and for which compensation is
recoverable ! ! ! wor9able 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
* tort is a species of civil injury or wrong ! ! ! no civil injury is to be classed as a tort unless
the appropriate remedy for it is an action for damages It is usual to say that a person is liable
in tort irrespective of whether or not a judgment for damages has been given against him 4e
is liable from the moment he commits the tort
The %aw of Torts governs actions for damages for injuries to certain 9inds of rights, li9e the rights
to personal security, property and reputation < tort < derived from a =rench word meaning in its
etymological sense, a > twisting out > and in a popular sense, a croo9ed act, a transgression from
straight or right conduct, a wrong In this generic sense it .ie torts0 was introduced into the
terminology of 1nglish law by the =rench!spea9ing lawyers and judges of the courts of the
?orman and *ngevin @ings of 1ngland $ost of the technical terms of 1nglish %aw are =rench in
origin, ! ! ! usual to spea9 A < *ctions in Contract < and < *ctions in Tort < Br 8infield has made a
critical e-amination of many possible or current definitions of law of torts and the one suggested
by him is as followsC > Tortious liability arises from the breach of a duty primarily fi-ed by the lawC
such duty is towards persons generally and its breach is redressible by an action for unliquidated
damages The early common law was primarily concerned with remedies and not with rights and
duties The damages which a plaintiff has a right to recover in an action for a tort belong to the
category 9nown as < unliquidated damages < This phrase is in law of torts applies to cases where
a plaintiff claims not a predetermined and inelastic sum but such an amount as the court in its
discretion is at liberty to award, though in his pleading, he may specify a particular amount The
phrase < liquidated damages < refers to a sum which has been predetermined by contract or
statute! !! Bamages are usually intended to be a pecuniary compensation for the injuryC they are
then called substantial damages They may be awarded with a view to punish the defendant C
they are then called e-emplary, punitive or vindictive damages
Tort, as we have seen, aims principally at the prevention or compensation of harm whereas
the > core > of contract is the idea of forcing certain promises ! ! ! mere failure to act will not
be actionable in tort ! ! ! legally binding ! ! ! damages can not be claimed in tort for a > loss of
e-pectation > as opposed to > out of poc9et > losses, or, as it is sometimes e-pressed,
damages in contract put the plaintiff in the position he would have been in had the contract
been performed, whereas damages in tort put him in the position he would have been in had
the tort not been committed ! ! ! plaintiff having the benefit of whichever is more favourable
to him on the particular facts ! ! primary duty A for breach of which tortious liability is
imposed The breach of such a duty gives rise to a remedial duty, ie a duty to ma9e redress,
and this is always owed to a specific person or persons whatever the source of the liability
2. 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 7rant of e-emplary damages in certain cases will show
that deterrent of wrong!doers is also another aim of the law of torts DD distinction between a
Contract and a Tort !!! * contract is founded upon consent , a tort is inflicted against
or without consent, * contract necessitates privity between the parties to it , in tort no
privity is needed * tort is a violation of a right in rem ie of a right vested in some
determinate person, either personally or as a member of the community, and available
against the world at largeC whereas a breach of contract is an infringement of a right in
personam, ie 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 ie law of
torts and law of contracts 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
contract, the duty is fi-ed by the will and consent of the parties, and it is owed to a definite
person or persons! ! ! +econdly, in a breach of contract, the motive for the breach is
immaterialC in a tort, it is often ta9en into consideration Thirdly, in a breach of contract,
damages are only a compensation In an action for tort to the property, they are generally
the same 6ut 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 li9e
which aggravate the plaintiffEs injury 4e may be awarded aggravated damages in the law
of torts 1-emplary damages to punish the defendant and to deter him in future can also be
awarded in certain cases in tort but rarely in contract *nother distinction is that the law of
torts is aimed at allocation or prevention of losses whereas the law of contract aims to see
that promises made under a contract are performed +ame act may amount to a tort and a
breach of contract eg father employing a surgeon to treat his injury There may be
concurrent contractual and tortious duties owed to the same plaintiff who has a choice of
proceeding either in tort or contract e-cept 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 e-clusively on his
contractual claim %ord 6ridge in the conte-t of an auditor observed, In advising the client
who employs him the professional man owes a duty to e-ercise that standard of s9ill 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
The law of torts is fashioned as > an instrument for ma9ing people adhere to standards of
reasonable behaviour and respect the rights and interests of one another A violation of protected
interests of a person A remedy by giving him compensation A 6y > 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 see9 to satisfy, and of which therefore , the ordering of human relations in
civili:ed society must ta9e account > A * protected interest gives rise to a legal right which in turn
gives rise to a corresponding legal duty +ome legal rights are absolute in the sense that mere
violation of them leads to the presumption of damage A *n act which infringes a legal right is a
wrongful act A To constitute a tort or civil injury ."0 there must be a wrongful act committed by a
person ./0 the wrongful act must give rise to legal damage or actual damage and .30 the wrongful
act must be of such a nature as to give rise to a legal remedy in the form of an action for
damages A The crucial test of legally wrongful act or omission is its prejudicial effect on the legal
right of another! <legal right < defined by *F+TI? as 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 answer to a
duty lying on a party or parties0 other than the party or parties in whom it resides 2ights available
against the world at large are numerous A sub!divided into private rights and public rights
Private right include all rights which belong to a particular person to the e-clusion of the
world at large These rights are " ." 0 rights of reputationC ./0 rights of bodily safety and freedomC
.30 rights of property ! ! ! these three rights will be found to embrace all the personal rights
that are 9nown to the law " DD To every right there corresponds an obligation or duty If the right
is legal, so is the obligation ! ! ! * right in its main aspect consists in doing something,
or receiving and accepting something +o an obligation consists in performing some act or in
refraining from performing an act ! ! ! The duty with which the law of tort 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 DD %iability for a tort, therefore, arises 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 A < !amage < 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 the court is called >
damageG DD =rom the point of view of presumption of damage, rights are classified into ."0
absolute and ./0 qualified 8hen 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 In case of qualified right, the injury or wrong is not
complete unless the violation of the right results in actual or special damage A The real
significance of legal damage is illustrated by two ma-im namely in"uria ine damno and damnum
ine .or ab#ue0 in"uria. A damnum is meant damage in the substantial sense of money, loss of
comfort, service, health or the li9e A in"uria is meant a tortious actC ! *ny unauthorised
interference , however, trivial, with some absolute right conferred by law on Hualified person, is
an injury A in"uria ine damno, ie the infringement of an absolute private right without any actual
loss or damage, the person whose right is infringed has a cause of action 1very 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 actionable per e. In this case law presumes damage because certain acts are so
li9ely to result in harm owing to their mischievous tendency that the law prohibits them absolutely
A damage need not be proved 8henever a person has sustained what the law calls an <injuryE
and in this case he may bring an action without being under the necessity of proving special
damage because the injury itself has ta9en to imply damage * violation of a legal right committed
9nowingly gives rise to a cause of action !
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 povisions ot the +pecific
2elief *ct for declaration and injunction damnum ine in"uria ie actual and substantial loss
without infringement of any legal right, no action lies A 8hen an act is lawful or legally done,
without negligence, and in the e-ercise of a legal right, such damage as comes to another
thereby is damage without injury *ctual damage is the gist of action in ./0 menace .(0 slander
.e-cept in four cases0 .'0 deceipt .I0 conspiracy or confederation .#0 distress damage feaant .90
negligence .")0 nuisance consisting of damages to property DD * 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 tort is an action for damages DD
The law of torts is said to be a development of the ma-im ubi "u ibi remedium .there is no wrong
without a remedy0 A if all the remedies for enforcing a right are gone, the right from practical point
of view ceased to e-ist
&udges are cautious in ma9ing innovations and they seldom proclaim their creative role
?ormally a new principle is judicially accepted to accommodate new ideas of social welfare or
public policy only after they have gained their recognition in the society The general
principles behind the tort of negligence is that < you must ta9e reasonable care to avoid acts
or omissions which you can reasonably foresee would be li9ely to injure your neighbour
To constitute a tort there must be a wrongful act The word >actG in this conte-t is used in a
wide sense to include both positive and negatice acts ie acts and omissions! difference A
=ailure to do something in doing an act is not an omission but a bad way of performing the
act A *n omission is failure to do an act as a whole DD 7enerally spea9ing the law
does not impose liability for mere omissions *n omission incurs liability when there is a duty
to act A drowning child, stranger and parent A actionable omission
* voluntary act may be distinguished from the other by dividing into ."0 a willed muscular
contraction ./0 its circumstances and .30 its consequences *n act is wrongful because of the
circumstances in which it is performed and the consequences which it produces =or
instance, to croo9 the forefinger with a certain force is the same act whether the trigger of a
pistol is ne-t to it or not It is only the surrounding circumstances of a pistol loaded and
coc9ed, and of a human being in such relation to as to be manifestly li9ely to be hit that ma9e
the act a wrong A involuntary acts are those where the actor lac9s the power to control his
actions and involuntary omissions are those where the actorEs lac9 of power to control his
actions renders him unable to do the act required *n involuntary act does not give rise to
any liability A necessity is a plausible defence
1ven a voluntary act, e-cept in those cases where the liability is strict , is not enough to fasten
liability and it has to be accompanied with requisite mental element ie malice, intention,
negligence or motive to ma9e it an actionable tort assuming that other necessary ingredients of
the tort are present! Malice in the popular sense means spite or ill!will 6ut in law malice has two
distinct meanings , ."0 Intentional doing of a wrongful act and ./0 Improper motive A $alice in the
first sense was described by 6*J%1J & in the following words , > $alice in common acceptation
means ill!will against a person, but in its legal sense it means a wrongful act, done intentionally,
without just cause or e-cuse If I give a stranger a perfect blow li9ely to produce death, I do it out
of malice, because I do it intentionall$ and without just cause or e-cuse A * wrongful act, done
9nowingly and with a view to its injurious consequences, may be called maliciou. 6ut such
malice derives its essential character from the circumstances that the act is intentionally done and
constitutes a violation of the law A malice in the first sense is also 9nown as > malice in la% &
which means an act done wrongfully and without reasonable and probable cause and not as in
common parlance an act dictated by angry feeling or vindicative motive > Malice in la% & is >
implied malice & when from the circumstances of the case, the law will infer malice $alice in
second sense is sometimes 9nown as > e'pre malice &, & actual malice & or > malice in fact &
$alice in this sense ie improper motive is for e-ample relevant in the tort of malicious
prosecution Intention, Negligence and Recklessness A Intention is an internal fact, something
which passes in the mind and direct evidence of which is not available ! an act is intentional as to
its consequences A 2ec9lessness is sometimes called > 7ross negligence G MotiveA is the
ulterior object or purpose of doing an act A differs from intention in two ways =irst, intention
relates to the immediate objectives of an act, whereas motive refers to the ulterior objective
+econdly motive refers to some personal benefit or satisfaction which the actor desires whereas
intention need not be so related to te actor A motive is generally irrelevent in tort A The
e-ceptional cases where motive is relevant as an ingredient are torts of malicious prosecution,
malicious abuse of process and malacious falsehood $otive is also relevant in the torts of
defamation, nuisance and conspiracy In some cases there may be a plurality of purposes and it
may become necessary to decide as to what is the predominant purpose =or e-ample if persons
combine to protect their own interests and to damage another person they would be liable for the
tort of conspiracy if the predominant purpose is to cause damage and damage resultsC but if the
predominent purpose is protection of their legitimate interests they would not be liable even if
damage is caused to another person
The term > malfeaance > applies to the commission of an unlawful act It is generally applicable
to those unlawful acts, such as trespass, which are actionable per e and do not require proof of
intention or motive The term > mifeaance > is applicable to improper performance of some
lawful act for e-ample when there is negligence The term > non-feaance > applies to the
omission to perform some act when there is an obligation to perform it
right even if act done intentionally and there is damage A mental element such as intention,
negligence, malice or motive in association with an act or omission which is violative of a right
recognised by law plays an important role in creating a liability Tortious liability here has an
element of fault to support it A sphere of tortious liability 9nown as absolute or more properly
strict where the element of fault is conspicuously absent ie liability without fault A important
e-ample of strict liability is the rule in ($land v )letcher. $ore recent e-ample is M.C. Mehta v
Union of India
1nglish %aw - Crown was not liable in tort at common law for wrongs committed by its servants in
the course of employment not even for wrongs e-pressly authoised by it - Crown Proceedings
*ct "9(K A effect of the *ct in other respect, spea9ing generally, is to abolish the immunity of the
Crown in tort and to equate the Crown with a private citi:en in matters of tortious liability The
Crown is now vicariously liable for torts committed by its servants in the course of their
employment if committed in circumstances which would render a private employer liable
Indian %aw A Crown was not answerable for the torts committed by its servants have never been
applied in India! earlier 1ast India Co A now *rt 3))."0 of Constitution of India
+C in *tate of (a"athan v Mt +id$a%ati stated > A there is no justification, in principle or in
public interest, that the +tate should not be held liable vicariously for the tortious act of its servant
> It is well settled now that the +tate is reponsible for the tortious acts of its employee A *I2 "99)
+C '"3 p '"I, +C in ,ilbati Behra v *tate of Oria, L12$* & observed > A *ward of
compensation under *rt 3/ or //I A is a remedy available in public law based on strict liability
for contravention of fundamental rights to which the principle of sovereign immunity does not
appy , even it may be available as a defence in private law in an action based on torts >
The underlying philosophy behind the statutory immunity is that the lesser private right must yield
to the greater public interest The statutory authority e-tends not merely to the act authorised by
the statute but to all inevitable consequences of that act If no compensation is given, that affords
a reason, though not a conclusive one, for thin9ing that the intention of the legislatur was, not that
the thing should be done at all events, but only that it should be done, if it could be done, without
injury to others 6ut the powers conferred by the legislature should be e-ercised with judgment
and caution so that no unnecessary damage be done If the damage could have been prevented
by the reasonable e-ercise of the powers conferred, an action can be maintained It is negligence
to carry out the wo9 in a manner which results in damage unless it can be shown that that and
that only was the way in which the duty could be performed DD 8here the terms of a statute are
not imperative, but permissive, the fair inference is that the legislatue intended that the discretion,
as to the use of general powers thereby conferred, should be e-ercised in strict conformity with
private rights
DD 4arm suffered voluntarily does not constitute a legal injury and is not actionable This pronciple
is embodied in the ma-im volenti non fit in"uria .where the sufferer is willing no injury is done0 *
man cannot complain of harm to the chances of which he has e-posed himself with 9nowledge
and of his free will
This e-pression ie necessity if based on the ma-im alu populi uprema le' .the welfare of the
people is the supreme law0, a ma-im founded on the implied assent on the part of every member
of society, that his own individual wellfare shall, in case of necessity yield to that of the community
and that his property, liberty and life, shall under certain circumstances, be placed in jeopardy or
even sacrificed for the public good DDThere is authority for the view that even a private person as
distinguished from the +tate may have a defence of necessity A a balance is to be struc9
between competing sets of values
DD 1very person has a right to defend his own person, property, or possession against an unlawful
harm! DD 1very person is entitled to protect his property 6ut he cannot for this purpose do an act
which is injurious to his neighbour A The means adopted to protect oneEs property must be
reasonable ie proportionate to the injuries which they are li9ely to inflict
DD ?othing is wrong of which a person of ordinary sense and temper would not complain Courts of
justice generally do not ta9e trifling and immaterial matters into account, e-cept under peculiar
circumstances, such as the trial of a right, or where personal character is involved This principle
is based on the ma-im de minimi non carat le' . the law does nto ta9e account of trifles 0 and is
recognised in the Indian Penal Code .s 9'0 The ma-im does not apply where there is an injury
to a legal right
DD The common law ma-im is actio peronali moritur cum perona . a personal right of actions
dies with the person 0
DD It has been said that the damages assessed must answer > what contemporary society would
allow the wrongdoer to hold up his head among his neighbours and say with their approval that
he has done the fair thing >, and that > the amount awarded must not be niggardly since the law
values life and limb in a free society in generous scalesG These emotive statements only mean
that the sum awarded must be fair and reasonable by accepted legal standards
DD 8here a man has more than one remedy for a tort, he elects to pusue one of them, giving up
the other, the other remedies are waived 4e cannot pursue them if he fails in the one elected
8aiver is e-press or implied , e-press, when the person entitled to anything e-pressly and in
terms gives it up, in which case it nearly resembles releaseC implied, when the person entitled to
anything does or acquiesces in something else which is inconsistent with that to which he is so
entitlled The phrase > waive the tort > does not mean that the tort itself is waivedC it is only the
right to recover damages for the tort committed, that is waived !DD ! distinction berween election
of remedies and election of substantive rights In a case when the election is between two
remedies, it is not complete merely by filing a suit to invo9e one remedy until judgement is
obtained whereas in a case where there is an election berween two inconsistent substantive
rights, the election may be complete at an earlier stage
DD *n act done for another by a person not assuming to act for himself, but for such other person,
though without any precedent authority, whatever, becomes the act of the principal, if
subsequently ratified by him In that case the principal is bound by the act, whether it be to his
detriment or advantage, and whether it be founded on a tort or a contract to the same e-tent as
by and with all the consequences which follow from the same act done by his previous authorty
Omnio ratihabitio retrorahitur et mandato prorio oe#uiparatur .every ratification of an act relates
bac9 and thereupon becomes equivalent to a previous request0
Three considerations arise before a person can be held liable for a tort by
ratification,
."0 It must be shown that the person ratifying the act ratified it with full 9nowledge of
its being tortious, or it must be shown that, in ratifying and ta9ing the benefit of the act,
he meant to ta9e upon himself, without inquiry the ris9 of any irregularity which might
have been committed, and to adopt the transaction right or wrong DDThe act of
ratification must ta9e place at a time, and under circumstances, when the ratifyin party
might himself have lawfully done the act which he ratifies
./0 5nly such act bind a proncipal by subsequent ratification as were done at the time
on the proncipalEs behalf 8hat is done by a person on his own account cannot be
effectually adopted by another If an act be done by a person on behalf of another, it is
in general immaterial whether the authority be given prior or subsequent to the act
*n act which is illegal and void is incapable of ratification * ratification ."0 of tort by a principal
will not free the agent from his responsibility to third person
DD -iabilit$ of Mater . /'tent of -iabilit$ DD The law is settled that a master is vicariously
liable for the acts of his servants acting in the course of employment A 1 !DD -iabilit$ of
Mater . Implied 0uthorit$ // In general, a servant in an emergency has an implied authoty to
protect his masterEs property DD +icariou -iabilit$ of tate // The state is liable vicariously for
the torts committed by its servants in the course of employment
// %I*6I%ITJ 6J *61T$1?T // In actions of wrong, those who abet the tortious acts are
equally liable with those who commit the wrong *person who procures the act of another is
legally responsible for its consequences *ll persons who aid, or counsel, or direct or join in
the committal of wrongful act, are joint tort!feasors
1very man has a right to have his reputation preserved inviolate The right of reputation is
ac9nowledged as an inherent general right of every person It is a "u in rem, a right good
against all the world A man's reputation is his propert, more valua!le than other
propert.
7ood name is rather to be chosen than great riches A degree of suffering occasioned by
loss of character and compare it with that occasioned by loss of property, the amount of former
injury far e-ceeds that of the latter
%aw of defamation li9e many other branches of law of torts provides for balancing of
interests A competing interest, interest in reputation and freedom of speech! wrong of
defamation protects reputation and defence to the wrong ie truth and privilege protect the
freedom of speech $any people in 1ngland feel that the present law of defamation gives too
much protection to reputation and imposes too great a restriction on the freedom of speech
The wrong of defamation may be committed by way of either by way of writing or its
equivalent , or by way of speech A term ;libel; is used for former and ;+lander; for the latter
* learned judge of $P 4igh Court holds that there may be a hybrid type of defamation not falling
within the recognised categories of libel and slander In
that case it was held that the bridegroom and his father in refusing to ta9e the bride to
their home after marriage in full ga:e of the guests committed the tort of defamation and damage
could be awarded for loss of reputation
$alicious prosecution is malicious institution against another of unsuccessful criminal,
ban9ruptcy or liquidation proceedings without reasonable or probable cause This tort balances
two competing principles, namely the freedom that every person should have in bringing criminals
to justice and the need for restraining false accusation against innocent persons
The foundation of the action lies in abuse of the process of the Court by wrongfully
setting the law in motion and it is designed to discourage the perversion of the machinery of
justice for an improper purpose
In an action for malicious prosecution plaintiff must prove, ."0 That he was prosecuted by
the defendant, ./0 proceedings complained of terminated in favour of plaintiff if from their nature
they were capable of so terminating, .30 prosecution was instituted against him without any
reasonable or probable cause, .(0 prosecution was instituted with a malicious intention, that is,
not with the mere intention of carrying the law into effect, but with an intention which was wrongful
in point of fact, .'0 he has suffered damage to his reputation or to the safety of person, or to the
security of his property Meveral caeIN
*n action will not lie for maliciously and without reasonable and probable cause instituting
an ordinary suit A sec 3'* of CPC, compensatory costs
To put into force the process of law maliciously and without any reasonable and probable
cause is wrongfulC and, if thereby another is prejudiced in property or person, there is that
conjunction of injury and loss for which an action will lie
The tort of malicious legal process differs from malicious prosecution in that the legal
process ta9en against a plaintiff is short of prosecution, ie when a process is obtained for arrest
of the plaintiff or for attachment of his property
Ingredients to be proved are same as in malicious prosecution e-cept that damage to
person or property must be established
+ec 9' of CPC A summary remedy
Though the limits of the tort of misfeasance in public office have been considered only a
few 1nglish cases, there is no doubt that the tort is well established
If the public officer acts with malice, in the sense of an tntent to injure, and damage
results the liability arose and the officer can be sued for the tort of misfeasance in public office
The tort will also be committed, in the absence of malice, if the public officer 9new both
that what he was doing was invalid and that it will injure the plaintiff
Tort is capable of being committed by a corporate body eg a city council