Law of Torts: formula sheet

Key formulas

Definition of tort (core idea)

Tort = civil wrong + duty fixed by law + remedy usually by unliquidated damages + not merely breach of contract or trust

Use these four elements to build your own definition in the answer. Damages are the usual remedy, not the only one, because an injunction or other relief may also be granted.

Tort v. Crime: who proceeds

Tort: injured person sues. Crime: State prosecutes.

Also link the aim: compensation in tort, punishment in crime.

Tort v. Contract: source of duty

Tort: duty fixed by law, towards persons generally. Contract: duty fixed by the parties, towards specific persons.

This is the main point of difference, so lead with it.

Damages

Tort: unliquidated damages. Contract: may be liquidated (agreed) or unliquidated.

Unliquidated means the court decides the amount.

Privity

Tort: privity of contract not required. Contract: privity is generally required.

A stranger can sue in tort if the elements are met.

Essentials of a tort

Tort = wrongful act or omission + legal damage

Both must be present. The wrongful act must breach a duty imposed by law.

Injuria sine damno

Violation of legal right + no actual loss = actionable

Applies mainly to torts actionable per se, such as trespass to person or land, and libel. Plaintiff may get nominal damages.

Damnum sine injuria

Actual loss + no violation of legal right = not actionable

Loss caused by lawful competition or the lawful use of one's own property is a typical illustration.

Ubi jus ibi remedium

Where there is a right, there is a remedy

Explains why violation of a legal right is actionable even without proof of loss.

Actionable per se vs. actionable only on proof of special damage

Per se: no proof of loss needed. Otherwise: proof of actual damage needed

Trespass, assault and libel are per se. Negligence and slander (generally) need proof of damage.

Volenti non fit injuria

Knowledge of risk + free and voluntary agreement to run it = no claim

Both parts are needed. Mere knowledge is not enough. Consent is not a defence where the act goes beyond what was agreed.

Plaintiff's fault (contributory negligence)

Plaintiff's own negligence contributing to the harm = damages reduced in proportion

Under the modern approach it reduces damages rather than barring the claim entirely, unless the plaintiff's fault was the sole cause.

Act of God

Extraordinary natural event + not foreseeable or preventable by human care

Needs a natural cause. Ordinary rain or wind does not qualify.

Inevitable accident

Accident that reasonable care and caution could not prevent

Not limited to natural causes. The defendant must show reasonable care was taken.

Private defence

Reasonable and proportionate force to protect person or property

Excessive force makes the defendant liable.

Necessity

Harm caused to avert a greater harm, acting reasonably

The act must be reasonably needed and proportionate to the danger.

Statutory authority

Act authorised by statute, within its limits, without negligence = no liability

If the statute leaves no alternative, the defence is strong. Going beyond the power removes it.

Master's liability

Master liable = relationship of master and servant + tort by servant + act in the course of employment

All three must be present. If any one is missing, the master is not vicariously liable.

Test of course of employment

Authorised act, or unauthorised mode of doing an authorised act

A wholly unconnected act is outside the course of employment.

Principal's liability

Principal liable for the agent's tort if done within actual or apparent authority, or if authorised or ratified

Outside authority, the agent alone is liable.

Partners

Firm and partners liable for a partner's tort committed in the ordinary course of the firm's business

Liability is joint and several.

Independent contractor rule

Employer not liable for an independent contractor's tort, except in recognised cases

Exceptions include authorised wrongs, inherently dangerous work and non-delegable duties.

Joint tortfeasors

Each joint tortfeasor is liable for the whole damage (joint and several liability)

The claimant recovers the loss only once. Release of one does not automatically bar a claim against the others, unless the claim is satisfied.

Essentials of negligence

Duty of care + Breach of that duty + Damage caused by the breach = Negligence

All three must be proved. Damage must also be a reasonably foreseeable result, not too remote.

Res ipsa loquitur conditions

Thing under defendant's control + Accident not ordinarily happening without negligence + Cause unknown to plaintiff = Inference of negligence

It shifts the practical need to explain to the defendant. It does not apply if the accident has an equally likely innocent explanation.

Contributory negligence effect

Damages payable = Total loss − Share of loss attributable to the plaintiff's own fault

Apportionment is the modern rule. The last opportunity rule can make the defendant fully liable.

Private nuisance test

Unreasonable interference with enjoyment of land + Damage (or material injury to property) = Private nuisance

Reasonableness depends on locality, duration, intensity and the plaintiff's sensitivity. Ordinary people's comfort is the yardstick.

Public nuisance action

Act affecting the public + Special damage to the plaintiff = Private action for public nuisance

Without special damage, the remedy lies with public authorities or in a suit with proper permission.

Nuisance vs trespass

Trespass = direct physical entry, actionable per se. Nuisance = indirect interference, damage generally needed.

Use this one-line contrast in any 'differentiate' question.

Essentials of strict liability

Dangerous thing brought and kept + non-natural use of land + escape from the defendant's control + damage

All four must be present. If one is missing, the rule does not apply.

Exceptions to strict liability

Act of God | Act of a stranger | Plaintiff's own fault or consent | Statutory authority | Natural use of land (some texts add common benefit)

Learn these as a list. Different texts group them slightly differently, so state the ones you know with a one-line reason each.

Absolute liability rule

Hazardous or inherently dangerous enterprise + harm from its activity = liability to compensate, with no exceptions

Laid down in M.C. Mehta v Union of India (1987). The enterprise cannot plead Act of God, stranger's act and so on.

Strict vs absolute

Strict: exceptions available, escape from own land needed. Absolute: no exceptions, applies to hazardous industry.

Use this one-line contrast to open any comparison question.

Main judicial remedies

Damages + Injunction + Specific restitution of property

Start any answer by listing these three. Then take each in turn.

Kinds of damages

Nominal, Contemptuous, Substantial (General), Special, Exemplary (Punitive)

Give a one-line meaning and a short example for each.

Kinds of injunction

Prohibitory or Mandatory; Temporary (interim) or Perpetual

A mandatory injunction orders an act. A prohibitory one stops an act.

Extra-judicial remedies

Self-defence, re-entry on land, recaption of goods, abatement of nuisance, distress damage feasant, expulsion of trespasser

The force used must be reasonable and proportionate.

Discharge of tortious liability

Death, waiver or acquiescence, accord and satisfaction, release, judgment recovered, limitation

Actio personalis moritur cum persona has exceptions, so do not state it as absolute.

Consumer remedy

Tort claim and consumer complaint can both be available

Consumer Protection Act, 2019 gives relief for defect or deficiency; it is an additional remedy.

Quick revision

• A tort is a civil wrong that causes legal damage and is remedied mainly by unliquidated damages.
• The two essentials are a wrongful act or omission and legal damage to the plaintiff.
• Injury without damage can be actionable; damage without injury is generally not.
• Negligence needs a duty of care, breach of that duty, and resulting damage.
• Nuisance is an unlawful interference with the use or enjoyment of land; it may be public or private.
• Strict liability and absolute liability do not depend on proof of fault.
• Defamation is a published statement that lowers a person's reputation; truth and fair comment are defences.
• Trespass to land is direct, unauthorised entry on another's land.
• Consent, necessity, private defence and inevitable accident are general defences.
• An employer is vicariously liable for torts by an employee committed in the course of employment.
• Joint tortfeasors are jointly and severally liable for the same damage.
• Remedies include damages, injunction and, in limited cases, self-help.

Common mistakes

• Saying a tort is the same as a crime because both are wrongs. Fix: Remember that tort is a private civil wrong remedied by damages, while crime is a public wrong punished by the State.
• Writing that damages in tort are fixed in advance. Fix: Say unliquidated damages, meaning the court assesses the amount after hearing the case.
• Treating legal damage as any financial loss. Fix: Write that legal damage means violation of a legal right. Loss alone does not make a tort.
• Swapping the meanings of injuria sine damno and damnum sine injuria. Fix: Remember that injuria means legal wrong and damnum means loss. The word that comes first is what exists. Sine means without.
• Treating knowledge of risk as consent under volenti. Fix: State that the plaintiff must also freely agree to run the risk. Knowledge alone is not agreement.
• Using act of God and inevitable accident as the same thing. Fix: Say act of God needs an extraordinary natural force. Inevitable accident can have any cause but must be unavoidable despite reasonable care.
• Holding the employer liable for an independent contractor's tort in every case. Fix: Ask who controls the method of work. Apply the contractor rule, then check the exceptions.
• Treating any wrong by a servant during working hours as in the course of employment. Fix: Apply the test: authorised act or unauthorised mode of doing it. A wholly unconnected act is outside employment.
• Treating every careless act as negligence without checking duty of care. Fix: Always write the duty step first and use the neighbour principle: was the plaintiff a foreseeable victim?
• Saying res ipsa loquitur reverses the burden of proof completely. Fix: Say that it lets the court infer negligence. The defendant must give a reasonable explanation, and may escape if they do.

Exam tips

• Start every answer with a clear one-line definition of tort. It earns marks even if the rest is short.
• For a distinguish question, write at least five numbered points, and always cover who sues, aim and remedy.
• Include the phrase unliquidated damages. Examiners look for it.
• In fact-based questions, say whether the facts show a tort, a crime, a contract breach, or more than one, and give the reason.
• Keep a short sentence that tort law in India is largely uncodified and based on common law principles.
• Begin every answer with the two essentials: wrongful act or omission, and legal damage. Examiners look for this base.
• Learn one case for each maxim well. Ashby v White and Gloucester Grammar School case are enough for most answers, and Mogul Steamship is a good second case for damnum sine injuria.
• In problem questions, name the maxim in the analysis and state a firm conclusion in the last line.