Assertion (A): A workman who continued to work knowing that stones were being swung over his head was not defeated by the defence of volenti non fit injuria. Reason (R): Mere knowledge of a risk does not amount to consent to run it. Choose the correct option.

Both A and R are true, and R is the correct explanation of A

Both A and R are true, but R is not the correct explanation of A

Which of the following are defences to an action for defamation? Select all that apply.

Justification, that the statement is true

Fair comment on a matter of public interest

Absolute or qualified privilege

Justification, that the statement is true

Fair comment on a matter of public interest

That the defendant did not intend to defame, where the words are defamatory and refer to the plaintiff

Absolute or qualified privilege

In Bird v Jones (1845), the plaintiff's claim for false imprisonment failed because:

The restraint was partial; he was free to go another way

He did not know he was restrained

The restraint was partial; he was free to go another way

He had consented to the restraint

The defendant had statutory authority

Which of the following statements about remoteness and causation are correct? Select all that apply.

Causation in fact is tested by the "but for" test

Only the kind of damage, not its precise manner, need be foreseeable

Causation in fact is tested by the "but for" test

A foreseeable intervening act always breaks the chain of causation

Only the kind of damage, not its precise manner, need be foreseeable

Assertion (A): A lawful act does not become a tort merely because it was done with a malicious motive. Reason (R): In Bradford Corporation v Pickles (1895), a landowner who drained water from his land to force the corporation to buy it was held not liable. Choose the correct option.

Both A and R are true, and R is the correct explanation of A

Both A and R are true, but R is not the correct explanation of A

A spectator injured when a racing car leaves the track, in an ordinary incident of the sport, will most likely be met by the defence of:

Volenti non fit injuria, as in Hall v Brooklands Auto Racing Club (1933)

Statutory authority, as in Vaughan v Taff Vale Railway (1860)

Act of God, as in Nichols v Marsland (1876)

Volenti non fit injuria, as in Hall v Brooklands Auto Racing Club (1933)

Inevitable accident, as in Stanley v Powell (1891)

Law of Torts I: Nature and Definition, General Principles of Liability, General Defences, Negligence, Nuisance, Trespass and Defamation, and Remoteness of Damage

Unit V is "Law of Torts and Consumer Protection". This chapter takes its first five items: the nature and definition of tort, the general principles of tortious liability, the general defences, the specific torts of negligence, nuisance, trespass and defamation, and remoteness of damage. The law of torts in India is largely uncodified and judge-made, drawing on English common law applied according to justice, equity and good conscience, so the leading cases are English as often as Indian. The examined skill is matching a fact pattern to its elements and its authority: Ashby v White to injuria sine damno, Donoghue v Stevenson to the duty of care, the Wagon Mound to foreseeability.

1. Nature and definition of tort

Salmond defined a tort as a civil wrong for which the remedy is a common-law action for unliquidated damages, and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation. Winfield put the emphasis on duty: tortious liability arises from the breach of a duty primarily fixed by law, owed towards persons generally, and redressible by an action for unliquidated damages. Salmond spoke of a "law of torts" (a closed list of specific wrongs, each with its own rules); Winfield of a "law of tort" (a general principle that all unjustifiable harm is tortious unless justified). The modern growth of negligence has moved the law towards Winfield's view without abandoning named torts.

Tort distinguished from crime and breach of contract
Basis	Tort	Crime	Breach of contract
Duty	Fixed by law, owed to persons generally	Owed to the community as a whole	Fixed by the parties, owed to the other party
Remedy	Unliquidated damages; injunction	Punishment; compensation is incidental	Damages (often liquidated); specific performance
Who proceeds	The injured person	The State	The contracting party
Compromise	Always possible	Only for compoundable offences	Always possible

ℹ️ No code of torts

India has never codified the general law of torts. A draft Indian Civil Wrongs Bill prepared by Frederick Pollock in 1886 was not enacted. Statutes cover particular areas (the Fatal Accidents Act 1855, the Motor Vehicles Act 1988, the Consumer Protection Act 2019), and the courts fill the rest from common-law principles, which is why constitutional tort and absolute liability could be developed judicially.

2. General principles of tortious liability

A tort requires a wrongful act or omission by the defendant that infringes a legal right of the plaintiff (injuria). Legal damage, not actual loss, is the gist. Two maxims show the point. Injuria sine damno, violation of a legal right without actual damage, is actionable: in Ashby v White (1703) a returning officer who wrongfully refused a qualified voter's vote was liable although the voter's candidate won. Damnum sine injuria, actual damage without violation of a legal right, is not: in the Gloucester Grammar School case (1410) a schoolmaster who set up a rival school and drew away pupils was not liable to the old school for its loss of fees.

Malice in the sense of motive is generally irrelevant: a lawful act does not become tortious because of a bad motive (Bradford Corporation v Pickles, 1895), and an unlawful act is not excused by a good one; malice matters only in torts such as malicious prosecution and some forms of defamation.
Vicarious liability makes one person liable for another's tort: an employer for torts committed by an employee in the course of employment, including a fraud committed for the employee's own benefit (Lloyd v Grace, Smith & Co, 1912); a principal for an agent; and partners for one another.
Joint tortfeasors are each liable for the whole damage; the plaintiff can recover the whole from any one of them.
Actio personalis moritur cum persona, the old rule that a personal action dies with the person, is modified in India by the Legal Representatives' Suits Act 1855 and the Fatal Accidents Act 1855, which lets dependants of a person killed by a wrongful act sue.

🧠 Remember the two maxims by their outcome

Injuria (legal injury) is what the law cares about. With injuria and no damnum, the plaintiff wins (Ashby v White). With damnum and no injuria, the plaintiff loses (Gloucester Grammar School). If a question shows loss caused by lawful competition, the answer is damnum sine injuria.

3. General defences

The general defences
Defence	Rule	Authority
Volenti non fit injuria	No wrong is done to one who consents, expressly or impliedly, to the risk; but knowledge of a risk is not the same as consent to it	Hall v Brooklands Auto Racing Club (1933): spectator injured by a car leaving the track; Smith v Baker (1891): knowledge is not consent
Rescue cases	A rescuer who is injured is not met by volenti, because the rescue is prompted by the defendant's negligence	Haynes v Harwood (1935): a policeman injured stopping runaway horses
Plaintiff the wrongdoer	Ex turpi causa non oritur actio: no action arises from a base cause	Applied narrowly; a trespasser is not an outlaw
Inevitable accident	Harm that could not have been avoided by ordinary care and skill	Stanley v Powell (1891)
Act of God (vis major)	An extraordinary natural event that no human foresight could guard against	Nichols v Marsland (1876): an unprecedented rainfall
Private defence, necessity, statutory authority	Reasonable force in defence of person or property; harm done to prevent greater harm; acts authorised by statute done without negligence	Vaughan v Taff Vale Railway (1860): statutory authority for sparks from a railway

⚠️ Smith v Baker cuts volenti down

A quarryman who kept working knowing that a crane swung stones over his head had not consented to the risk of negligence; he had merely known of it. Knowledge (scienti) is not consent (volenti). Employees who continue working in dangerous conditions are rarely met by the defence.

4. Specific torts: negligence, nuisance, trespass and defamation

Negligence has three elements: a duty of care owed to the plaintiff, breach of that duty, and damage caused by the breach that is not too remote. Donoghue v Stevenson (1932) founded the modern duty of care in Lord Atkin's neighbour principle: one must take reasonable care to avoid acts or omissions one can reasonably foresee would be likely to injure one's neighbour, meaning persons so closely and directly affected that one ought reasonably to have them in contemplation. Caparo Industries v Dickman (1990) added a three-stage test of foreseeability, proximity, and whether it is fair, just and reasonable to impose a duty. Breach is judged by the standard of the reasonable person; professionals by the standard of the ordinary skilled practitioner (Bolam v Friern Hospital Management Committee, 1957, adopted in Jacob Mathew v State of Punjab, 2005). Where the thing is under the defendant's control and the accident would not ordinarily happen without negligence, res ipsa loquitur lets negligence be inferred (Byrne v Boadle, 1863: a barrel falling from a warehouse).

Specific torts at a glance
Tort	Elements and kinds	Key authority
Contributory negligence	Once a complete defence; now damages are apportioned according to the plaintiff's share of fault	Butterfield v Forrester (1809); Davies v Mann (1842), last opportunity rule; Law Reform (Contributory Negligence) Act 1945 in England
Nuisance	Public nuisance affects the public and is a crime, actionable in tort only by a person who suffers special damage; private nuisance is unlawful interference with a person's use or enjoyment of land or rights over it; the test is reasonableness between neighbours	Radhey Shyam v Gur Prasad Sharma (1978): a flour mill's noise in a residential area; Municipal Council, Ratlam v Vardhichand (1980): public nuisance and the duty of a municipality
Trespass to the person	Assault (apprehension of immediate force), battery (intentional application of force), false imprisonment (total restraint without lawful justification); actionable per se	Bird v Jones (1845): partial obstruction is not false imprisonment; Meering v Grahame-White Aviation (1919): the plaintiff need not know of the restraint
Trespass to land and goods	Direct and unjustified entry on land in another's possession; direct interference with goods; conversion is dealing with goods inconsistently with the owner's rights	Trespass ab initio: abuse of an authority given by law relates back and makes the original entry a trespass
Defamation	Publication of a false statement that lowers the plaintiff in the estimation of right-thinking members of society; libel is in permanent form, slander in transient form; defences are justification (truth), fair comment on a matter of public interest, and absolute or qualified privilege	R. Rajagopal v State of Tamil Nadu (1994): public officials cannot sue for damages over their official conduct unless the statement was made with reckless disregard for truth; Subramanian Swamy v Union of India (2016) upheld criminal defamation, now BNS s.356

🎯 Why Donoghue v Stevenson matters beyond ginger beer

Before 1932 a manufacturer's liability for a defective product was thought to depend on a contract with the injured person (the privity fallacy). Donoghue held that a manufacturer owes a duty of care directly to the ultimate consumer, and Lord Atkin's general statement made negligence a tort of general application rather than a list of duty situations. Modern product liability, now statutory in the Consumer Protection Act 2019, grew from it.

5. Remoteness of damage

A defendant is not liable for every consequence of his wrong. Two tests have been used to limit liability. The test of directness, laid down in Re Polemis and Furness, Withy & Co (1921), made the defendant liable for all direct consequences of the negligent act, foreseeable or not: a plank dropped into a ship's hold caused a spark that ignited petrol vapour and destroyed the ship. The test of reasonable foresight, laid down by the Privy Council in Overseas Tankship (UK) v Morts Dock and Engineering Co, The Wagon Mound (No 1) (1961), limits liability to damage of a kind that a reasonable person would have foreseen: furnace oil spilled into Sydney Harbour was ignited by welding, but fire damage was not foreseeable, so the defendants were not liable. Foresight of the kind of damage is enough; its precise manner and extent need not be foreseen (Hughes v Lord Advocate, 1963), and the defendant takes the victim as he finds him (the thin-skull rule).

Novus actus interveniens: a free, deliberate and unforeseeable act of a third party breaks the chain of causation; a foreseeable intervention does not (Scott v Shepherd, 1773, the lighted squib thrown on from stall to stall).
Causation in fact is tested by the "but for" test: would the damage have occurred but for the defendant's breach? (Barnett v Chelsea and Kensington Hospital, 1969: the patient would have died of arsenic poisoning even with proper treatment.)
In contract, remoteness is governed by Hadley v Baxendale (1854) and section 73 of the Indian Contract Act 1872, which ask what the parties contemplated; in tort the Wagon Mound test of foreseeability applies.

💡 Directness versus foresight

Re Polemis follows the chain of dominoes to the end, however far it runs. The Wagon Mound asks whether a reasonable person standing at the first domino could have seen that this kind of damage might follow. The second test is fairer to defendants because it links liability to the fault that makes them negligent in the first place.

Key takeaways

Salmond's "law of torts" (named wrongs) versus Winfield's "law of tort" (a general principle); tort differs from crime (State, punishment) and contract (duty fixed by parties).
Injuria sine damno is actionable (Ashby v White, 1703); damnum sine injuria is not (Gloucester Grammar School, 1410); motive is generally irrelevant (Bradford Corporation v Pickles, 1895).
Volenti requires consent, not mere knowledge (Smith v Baker, 1891); rescuers are not caught by it (Haynes v Harwood, 1935); act of God needs an extraordinary natural event (Nichols v Marsland, 1876).
Negligence: duty (Donoghue v Stevenson, 1932; Caparo, 1990), breach (Bolam, 1957), damage; res ipsa loquitur (Byrne v Boadle, 1863); defamation defences are truth, fair comment and privilege.
Remoteness: directness (Re Polemis, 1921) was replaced by reasonable foresight of the kind of damage (The Wagon Mound No 1, 1961); the thin-skull rule still applies.

Practice questions (10)

Attempt each one before opening the answer. Every explanation names the tempting wrong option as well as the right one, because that is where marks are lost.

Ashby v White (1703) is the leading authority for which principle?
1. Injuria sine damno
2. Damnum sine injuria
3. Res ipsa loquitur
4. Volenti non fit injuria
Show answer
Answer: A — Injuria sine damno
A voter wrongfully denied his vote recovered although he suffered no loss, because his legal right was infringed: injuria sine damno. Damnum sine injuria is the Gloucester Grammar School case, volenti is consent, and res ipsa loquitur an inference of negligence.
Which case replaced the test of directness with the test of reasonable foreseeability for remoteness of damage in tort?
1. Scott v Shepherd (1773)
2. The Wagon Mound (No 1) (1961)
3. Hadley v Baxendale (1854)
4. Re Polemis (1921)
Show answer
Answer: B — The Wagon Mound (No 1) (1961)
The Privy Council in the Wagon Mound (No 1) rejected Re Polemis, which had imposed liability for all direct consequences. Hadley v Baxendale governs remoteness in contract, and Scott v Shepherd is on intervening acts.
Assertion (A): A workman who continued to work knowing that stones were being swung over his head was not defeated by the defence of volenti non fit injuria. Reason (R): Mere knowledge of a risk does not amount to consent to run it. Choose the correct option.
1. Both A and R are true, and R is the correct explanation of A
2. Both A and R are true, but R is not the correct explanation of A
3. A is true, but R is false
4. A is false, but R is true
Show answer
Answer: A — Both A and R are true, and R is the correct explanation of A
Both are true and R explains A. In Smith v Baker (1891) the House of Lords held that the maxim is volenti, not scienti: the workman knew of the danger but had not agreed to bear the risk of his employer's negligence.
Lord Atkin's "neighbour principle" was laid down in:
1. Donoghue v Stevenson (1932)
2. Byrne v Boadle (1863)
3. Caparo Industries v Dickman (1990)
4. Bolam v Friern Hospital Management Committee (1957)
Show answer
Answer: A — Donoghue v Stevenson (1932)
Donoghue v Stevenson, the snail-in-the-bottle case, gave the neighbour principle. Caparo added the three-stage test, Bolam the professional standard of care, and Byrne v Boadle res ipsa loquitur.
Which of the following are defences to an action for defamation? Select all that apply.
1. Justification, that the statement is true
2. Fair comment on a matter of public interest
3. That the defendant did not intend to defame, where the words are defamatory and refer to the plaintiff
4. Absolute or qualified privilege
Show answer
Answer: A — Justification, that the statement is true; B — Fair comment on a matter of public interest; D — Absolute or qualified privilege
Truth, fair comment and privilege are the classic defences. Lack of intention is not in itself a defence at common law: liability turns on the defamatory meaning and reference, not the defendant's intention (Hulton v Jones, 1910).
In Bird v Jones (1845), the plaintiff's claim for false imprisonment failed because:
1. He did not know he was restrained
2. The restraint was partial; he was free to go another way
3. He had consented to the restraint
4. The defendant had statutory authority
Show answer
Answer: B — The restraint was partial; he was free to go another way
False imprisonment requires total restraint; blocking one route while leaving others open is not enough. Knowledge of the restraint is not required (Meering v Grahame-White Aviation, 1919), so the second option states a rule that would not defeat a claim.
Which of the following statements about remoteness and causation are correct? Select all that apply.
1. Causation in fact is tested by the "but for" test
2. The defendant takes the victim as he finds him
3. A foreseeable intervening act always breaks the chain of causation
4. Only the kind of damage, not its precise manner, need be foreseeable
Show answer
Answer: A — Causation in fact is tested by the "but for" test; B — The defendant takes the victim as he finds him; D — Only the kind of damage, not its precise manner, need be foreseeable
Hughes v Lord Advocate (1963) requires only foresight of the kind of damage, the thin-skull rule applies, and "but for" tests factual causation (Barnett, 1969). It is an unforeseeable, free and deliberate intervention that breaks the chain; a foreseeable one does not.
Assertion (A): A lawful act does not become a tort merely because it was done with a malicious motive. Reason (R): In Bradford Corporation v Pickles (1895), a landowner who drained water from his land to force the corporation to buy it was held not liable. Choose the correct option.
1. Both A and R are true, and R is the correct explanation of A
2. Both A and R are true, but R is not the correct explanation of A
3. A is true, but R is false
4. A is false, but R is true
Show answer
Answer: A — Both A and R are true, and R is the correct explanation of A
Both are true and R explains A: Pickles had a legal right to deal with percolating water under his land, and his motive of pressuring the corporation did not make the exercise of that right unlawful.
A spectator injured when a racing car leaves the track, in an ordinary incident of the sport, will most likely be met by the defence of:
1. Statutory authority, as in Vaughan v Taff Vale Railway (1860)
2. Act of God, as in Nichols v Marsland (1876)
3. Volenti non fit injuria, as in Hall v Brooklands Auto Racing Club (1933)
4. Inevitable accident, as in Stanley v Powell (1891)
Show answer
Answer: C — Volenti non fit injuria, as in Hall v Brooklands Auto Racing Club (1933)
A spectator at a lawful sport impliedly accepts the risks inherent in it, so the organisers were not liable in Hall v Brooklands. Act of God requires a natural event, statutory authority a statute, and inevitable accident an event not avoidable by ordinary care.
In which year was Donoghue v Stevenson decided by the House of Lords? Type the year.
Numerical answer — type the value.
Show answer
Answer: 1932
Donoghue v Stevenson was decided in 1932. It held a manufacturer liable in negligence to the ultimate consumer without any contract and stated the neighbour principle on which the modern duty of care rests.