By Kritika Joshi
The author is a first-year law student at National Law University Sonipat.
A tort suit enables the victim of a wrong to seek a remedy from the person who injured her. Unlike a criminal case, which is initiated and managed by the state, a tort suit is prosecuted by the victim or the victim’s estate (or survivors). Moreover, a successful tort suit results in a judgment of liability, rather than a sentence of punishment
Pondering upon the aspect of tortious liability; we come across two theories viz. The Law of Tort by Dr. Percy Henry Winfield, and The law of torts by Sir John William Salmond which tend to formulate the principles of tortious liability. The two views formulated, are in answer to the following question that Salmond asks:
“Does the law of torts consist of a fundamental general principle that it is wrongful to cause harm to other persons in the absence of some specific ground of justification or excuse, or does it consist of a number of specific rules prohibiting certain kinds of harmful activity and leaving all the residue outside the sphere of legal responsibility”.
Dr. Winfield, concurs with the second part of the question and says,
“from a broader outlook there was validity in the theory of a fundamental general principle of liability, for if we take the view, as we must, that the law of tort has grown for centuries, and is still growing, then some such principle seems to be at the back of it”
This theory presents a set of wider principles that unless the harm is unjust it is not a tort. In other words, a person is liable if she cannot prove lawful jurisdiction. This can be explained with an illustration:
Hay causes continuous injury to Kay and Kay files a suite of tortious liability, Hay will be liable when; She has no lawful jurisdiction to cause the harm and the harm is unjust. The burden of proof lies on Hay to prove that the injury was under a lawful jurisdiction or the injury was not unjust. This makes the ‘law of tort’ as Winfield calls it as ever-expanding in its dimensions and open-ended law changing with time with roots at precedents and legislative actions.
Sir John William Salmond’s answer lies in the first part of the question. According to him, “Just as criminal law consists of a body of rules establishing specific offences, so the law of
torts consists of a body of rules establishing specific injuries. Neither in the one case nor in the other is there any general principle of liability.
“Whether I am prosecuted for an alleged offence or sued for an alleged tort it is for my adversary to prove that the case falls within some specific and established rule of liability and not for me to defend myself by proving that it is within some specific and established rule of justification or excuse.”
This presents a narrower principle of tortious liability. They present a set of pigeon holes defining the liability under the ‘law of torts’ as Salmond calls it. This can be explained with the following illustration:
Hay causes continuous injury to Kay and Kay files a suite of tortious liability, Hay will be liable when it is proved that the injury falls under the given ambit of the law of torts. The burden of proof lies at Kay to prove the injury caused amounts to harm as per the stipulated pigeon holes of the law of torts.
Both the theories have their supporters and critics. As such, often an approach of middle ground is envisaged. It becomes significant to look at empirical data and precedents to learn where the civil law system is heading.
The judicial interpretation and writing have not been very innovative and creative all the time and have gradually accommodated new interpretations with time; but there are dicta both ancient and modern that categories of tort are not closed, and that novelty of a claim is no defence.
For example negligence became the new specific in the nineteenth century, the principle of strict liability evolved after the case of Rylands v. Fletcher and Donoghue v. Stevenson. The cases show that the ambit of the law of tort is gradually increasing.
The law of torts in India is certainly not superfluous but rather simply expects establishments to make it more ascertainable. Unpredictable and unexpected events and consequences have gradually developed the law of torts in India.
In M.C. Mehta v The Union of India.Justice Bhagwati observed, “We have to evolve new principles and lay down new norms which will adequately deal with new problems which
arise in a highly industrialized economy. We cannot allow our judicial thinking to be constructed by reference to the law as it prevails in England or for that matter in any foreign country. We are certainly prepared to receive light from whatever source it comes but we have to build our own jurisprudence.” In the case of Jay Laxmi Salt Works (p) Ltd. v the State of Gujara1Justice Sahai observed, “Truly speaking the entire law of torts is founded and structured on morality. Therefore, it would be primitive to close strictly or close finally the ever-expanding and growing horizon of tortious liability. Even for social development, orderly growth of the social and cultural the liberal approach to tortious liability by the court would be conductive.”
In Lala Punnalal v. Kasturichand Ramaji It was pointed out that there is nothing like an exhaustive classification of rights beyond which courts should not proceed, that new invasion of rights devised by human ingenuity might give rise to new classes of torts and in that way malicious house search may constitute such a new tort.
It can be said that the development of tortious liability is in a nascent stage and a scope of development persists.
Tort law offers relief for a canonical set of wrongs, or torts. These include assault, battery, defamation, and trespass, among many others. But at the same time tortious liability is expanding its scope with cases on strict liability and negligence. Many academics believe “in the light of recent decisions of competent courts we have to choose first broader theory of liability than subsequent narrower one”. It cannot be safely concluded which theory could yield better ‘justice’. As such, between these extremes it seems logical to try to choose a gray area so that tortious liability interpretation can be accurate and flexible to contemporary world and future at the same time.
and omission are different from natural occurrences like hailstorm and landslide; different from mere thoughts and intentions like fantasies and dreams. Act and omission are also different from one another. The distinction of an act done in a bad way and omission “is to distinguish between regulating the way in which an activity may be conducted and imposing a duty to act upon a person who is not carrying on any relevant activity”. “An omission is failure to do an act as a whole.”. For example: If a doctor could not apply a rare kind of therapy during surgery which could save a leg of the patient, just because the therapy was rare and he did not know if it could be done on the patient does not amount to omission. Law does not impose liability for mere omissions. Omissions constitute liability when a duty is owed. For example, an employer owes a duty to make efforts to save his drowning employee in the factory lake. . Even in those cases where there is no duty to rescue another, if a person starts the rescue work, he may be held liable for not properly performing the work if he leaves the other worse off than he would otherwise have been.A person can be held liable if an actionable omission can be found in the duty of an occupier to abate a natural hazard. For example Fire caught at Hay’s house and she did not care to extinguish it as a result Kay’s house too caught fire, here Hay would be liable for omission. A person on whose land a hazard naturally occurs and which threatens to encroach on to another’s land thereby threatening to cause damage, is under a duty, if he knows or ought to know of the risk of encroachment, to do what is reasonable in all the circumstances to prevent the risk of the known or foreseeable damage to the other person or his property, and is liable in nuisance if he does not.
According to a theory propounded by Brown and accepted amongst others by Austin, Stephen and Holmes a voluntary act may be distinguished from an involuntary act by dividing the former into “(1) a willed muscular contraction, (2) its circumstances, and (3) its consequences. According to this an act being wrongful or not depends upon circumstances under which it is performed and the consequences of the action. For example: moving a hand to push up a bomb lever and simply waving a hand in air are similar muscular actions with
different consequences. According to this theory involuntary action is when the muscular force is not willed, this has not been accepted very widely because of a flawed reasoning, like the tort of trespass not only bodily movement makes entry to it.
The common feature of involuntary acts and omissions according to this view is “not in the absence of any actual exercise of will, but in the lack of ability to control one’s behaviour; involuntary acts are those where the act or lacks the power to control his 24 actions and involuntary omissions are those where the act or’s lack of power to control his actions renders him unable to do the act required”. 14 An involuntary act does not give rise to any liability. For example, an involuntary act of trespass is not a tort according to this theory.
According to this viewpoint, the common trait of involuntary acts and omissions is “not in the absence of any actual exercise of will, but in the inability to regulate one’s behaviour; involuntary acts are those in which the actor lacks the capability to control his 24 actions and behaviours.”
Involuntary omissions occur when a person’s inability to control his behaviour is caused by an act or a lack of power.
In Olga Tellis v. Bombay Municipal Corporation it was held that the “encroachments done by the persons is involuntary acts in the sense that they are compelled in the circumstances to do it and not guided by choice”. It must be understood that this observation of the court does not mean any act done out of poverty or helplessness would not constitute the liability under the law of torts. The supreme court only pointed out here that necessity can be a plausible defense had the court intended to lay down that the encroachments were involuntary in the sense known to the Law of Torts and for that reason not actionable, there was no question of suggesting necessity as a defence.
Malfeasance is intentional conduct that is wrongful or unlawful It is applicable to those unlawful acts where there is no need for proof of intention or motive. Example: Trespass
Misfeasance is improper performance of some lawful act. Example: Negligence. Nonfeasance is omission to perform some act when there is obligation to do so. Example:
Jay Laxmi Salt Works (P) Ltd. v. State of Gujarat is a major case precedent on malfeasance, misfeasance and nonfeasance.
Facts and issues- The petitioner in this case of was owner of a field a suit against the state of Gujarat, that had created a dam for recovering large tracts of land from the saline water of the sea. The petitioner even before the construction of dam had warned the authorities that the dam had the potential to cause damage, however his request was not herd and the petitioner was found the river level rising when there was heavy rainfall, he approached the authorities again asking them to lower the water level and prevent an increase in the flow near his factory but to no avail. The petitioner’s factory got flooded in July 19956, subsequently the petitioner approached the respondents for redress of the amount incurred by him in the damages which amounted to Rs. 1,58,735 which was denied by the Government. Since damages were not paid the petitioner filed a suit in the trial court.
Judgment(authority)- (I)It held the term ‘nonfeasance’ applies to the omission to perform some act when there is an obligation to perform it.
(II) The terms malfeasance, misfeasance and nonfeasance are of very wide import but they cannot cover a case of breach of public duty which is not actuated with malice or bad faith such as defective planning and construction of a bundh.
In Elsee v. Gatward,“ Nonfeasance of a gratuitous undertaking does not impose liability; but misfeasance does.” In Kelly v. Metropolitan Railway Co it was held that, “Where there is a duty towards the individual injured, to do the act by the omission whereof the injury is caused, the nonfeasance of such an act gives rise to a cause of action to the same extent as a misfeasance of an act of which there is a duty to perform in a particular manner.”
The Stanford encyclopedia illustration beautifully helps us visualize the difference between no-fault/strict and fault liability.
Suppose I make a mess on my property and present you with the bill for cleaning it up. Absent some prior agreement, this would seem rather odd. It is my mess, after all, not yours. Now suppose that instead of making a mess on my property and presenting you with the bill, I make a mess on your property and walk away, claiming that the mess is your problem. If it was inappropriate of me to present you with the bill for the mess I made on my property, it hardly seems that I have improved matters making my mess on your property. I have a duty to clean up my messes and the existence of this duty does not appear to depend on how hard I have tried not to make a mess in the first place. In other words, it does not depend on whether I made the mess absentmindedly or carelessly. All that matters is that it is my mess; that is to say, I made it. And if I make it, it is mine to clean. This is a helpful way of capturing the underlying intuition expressed by the rule of strict liability.
Unless we stay home all day, we are each bound to make the occasional mess in one another’s life. This being so, it would be unreasonable of me to demand that you never make any kind of mess in my life. What I can reasonably demand is that you take my interests into account and moderate your behavior accordingly. In particular, I can reasonably demand that you take ordinary care (i.e., the care that a reasonable person would take) not to injure me. In other words, I can reasonably demand that you refrain from negligently injuring me. This is a useful way of capturing the underlying intuition expressed by the rule of fault liability.”
Thus fault liability highlights victims are strictly liable for their losses unless the injurer is at fault (principle of reasonable man). Strict liability is really the rule that injurers are strictly liable for the losses because of their conduct unless the victim is at fault.
Understanding Fault Liability
Whatever the original foundations of tortious liability, by the 19th century it had come to rest firmly upon the notion of fault. The principle of fault liability comes from the concept that a human is a rational being and moderate reasonable behaviour according to the circumstances.
The concept of fault liability is often incorrectly understood when we understand no fault liability wrongly in lieu of strict liability in the law of crime. In criminal law strict liability is a responsibility without initial culpability; it becomes an offence when the responsibility is breached. The offence is punishable even if it is not blameworthy, and also it is not defeasible by any excuse to defeat culpability. If strict liability/no fault liability is conceived in the following lines in the torts the concept of fault liability becomes wrongly understood as liability of culpable conduct which is not the case. Fault liability can occur without culpable conduct and in absence of moral blameworthiness. Fault liability is not defeasible by excuses that establish the absence of blameworthiness. Liability can only be evaded when a person proves that her behavior was that of a reasonable person.
“The reasonable man as we all know, is the hero of the English law–it is he who furnishes the yardstick by which the conduct of the ordinary man in many instances can be measured. But the reasonable man is not only an ordinary prudent man, he is also a moral man. It is reasonable for him to act accord with the proper moral standards and so his actions are both controlled by morals and can be used as test for morals”. ‘Reasonable person’ is a term of art in tort law. It is an imaginary person/mental construct used as a benchmark of analysis.
We can describe a reasonable man in India as someone who travels by second class in the Grand Trunk express train from Madras to Delhi and not the man who travels in a pleasure car or by aeroplane or by first class in a train.
In the late nineteenth century due to the weak insurance policies and growing industrialization, in this sense fault also helped retain the boundaries of liability within manageable proportions.. To this coincidence of morality and economic expediency the notion of fault doubtless owes much of its aura of soundness and inevitability. No- fault liability in general terms can mean that a person can be held liable even if wrongful act wasn’t directly committed by her/him.
In strict liability a person can be held legally liable held responsible for the consequences of an activity even though not taking place out of criminal intent on the part of defendant, it is a legal doctrine that holds a party responsible for a an act and the plaintiff need not prove the negligence and fault on the part of the defendant. When a person involves ultra hazardous activities like keeping wild animals, using explosive or dangerous products which have the tendency of causing harm and the dangerous, unnatural thing escapes causing harm the principle of strict liability comes into play. There exist few exception to strict liability like the act of god, consent of plaintiff, act of third party, statutory authority, and plaintiff’s own default.
A major case that led to the evolution of the concept of no fault liability is Ryland v. Fletcher Blackburn J. held the defendant liable for damaging the shafts of the plaintiff by constructing a reservoir which overflowed and subsequently caused damage to the mines, the principle of strict liability was introduced here, according to Blackburn J. “The rule of law is that person who, for his purpose brings to his land and collects and keeps there anything likely to do mischief if it escapes must keep it in at his peril and if he does not do so is prima facie answerable for all the damages which is the natural consequence of such escape”
The principle of absolute liability in India came from the case of M.C. Mehta v The Union of India
The petitioners under the case had sought for closure of various units of Sriram Foods Fertilizers and co. on the ground that the escape of hazardous substance may cause harm to environment and the people living nearby, during the pendency of the suit Oleum gas escaped from the factory killing many people at the NCR region of Delhi. ‘An enterprise which was engaged in a harmful activity which poses threat to life of workers and individuals living in the surrounding areas owes a non-delegable duty to the community to ensure that if any harm resulted to anyone the enterprise was under an obligation to provide that the hazardous activity had to conducted with absolutely high degree of care and safety and if any harm resulted in of account of such activity the enterprise is liable absolutely to compensate all the harm irrespective of the fact that the enterprise had taken reasonable care and in absence of negligence in its part.’
Vicarious liability imposes liability on one person for the acts of another person. In order to hold a person liable for the acts of another person there must be existence of a certain kind of relationship between the two and the wrong caused must be proximate to such relationship.
Masters and Servant Relationship
“Intention signifies full advertence in the mind of the defendant to his conduct which is in question and to its consequences together with a desire for those consequences ”(Winfield) Intention is the state of mind which makes people do an action for expected result. For example: If Kay murders Hay after entering her house at 4 in the morning, with a surgical knife her intention was to take her life.
The intention of a person cannot be known merely by looking at the person, hence the law infers intention through her conduct and the circumstances around.
Based on the intention, a tort can be divided into two broad categories. viz
Intentional tort: In Garratt v. Dailey A young boy pulled the chair of a lady who fell and broke her hip bone. The court ruled a compensation of $11,000 and held The court ruled that children can be held liable and that ‘the intent element is in place if the person knew with certainty that the act carries a risk of injury.Intentional tort includes:(here D= Defendant, P= Plaintiff)
Battery: When the D intends to cause a contact with P via touch, D’s touch is harmful and offensive and without P’s consent, and results in harm is known as battery.
Assault: D intentionally acts so as to cause P to apprehend (not fear) imminent harmful or offensive contact with P. D’s act causes P reasonably to apprehend (not necessarily fear) such a contact
False Imprisonment: D willfully act, intending to confine P w/o P’s consent & w/o authority of law D’s act causes P’s confinement P is aware of P’s confinement
Trespass: D had the intent to invade the land D invaded land P possessed the land and did not give consent to D
Unintentional tort: An unintentional tort is a type of unintended accident that leads to injury, property damage, or financial loss caused not caused because of ill-will or spite but because of an unexpected accident.
In the case of Wilkinson v. Downtownthe defendant joked to the plaintiff that her husband encountered an accident and was seriously ill. This news made the plaintiff seriously ill, she filed a suit for the recovery of damages. The defendant claimed that he had no intention to make her ill, but, defendant was held liable and the court observed, mere intention was not essential in tort. The defendant was aware of his natural and probable consequences of the act which caused the plaintiff suffer damage. He was therefore held liable whether he intended to do it or not .
If the defendant is able to proove (both in criminal and tortious prosecution) that she was unaware of the consequences of her action then she can avoid liablity, failing to amount to intent.
“If a man throws a stone at a woman, his trespass to her person is intentional; that he threw it because she had jilted him would be immaterial in determining his liability in trespass–that would be his motive. If he did not throw the stone for the purpose of hitting her but ought to have foreseen that it was likely that the stone would hit her, his act would be unintentional but nevertheless negligent. If the stone hit her solely because it rebounded off a tree at which he had thrown it, his conduct would be voluntary; and the hit would be accidental. But, if, while he was holding the stone in his hand, a third party seized his arm and by twisting it
compelled him to release his hold on it, whereupon it fell on the woman, his conduct would be involuntary and could never give rise to liability on his part.”
The definition of negligence :-
“A failure to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances. The behavior usually consists of actions, but can also consist of omissions when there is some duty to act (e.g., a duty to help victims of one’s previous conduct).”
“The primary factor here, that determines the reasonableness of the actions is whether there is the harm was foreseeable, what was the foreseeable severity of the harm and the burden of precautions that could have eliminated the severity of harm.”
Negligience is determined by the following elements (prima facie)
The existence of the legal duty that the defendant owed to the plaintiff
Defendant’s breach of duty
Plaintiff suffering injury
Proof that the defendant’s breach of duty resulted in plaintiff suffering from injury (proximate cause)
“When any person acts with such utter disregard for the safety of others — and knows (or should know) that his actions may cause harm to someone else — he may be liable for injuries caused by his recklessness.”
Recklessness as an act constitutes absence of intention. It is different from negligence or it can be said that it is stronger than negligence. In narrow terms negligence is taking an unknown risk and recklessness is taking the same risk after knowing what it can cause.
Recklessness can be interpreted from both subjective and objective tests. In subjective test it is asked what was the defendant believed to have been thinking when the act occurred while in the objective test it is seen what a reasonable person might have been thinking if he had been in the place of the defendant.
Generally a person’s conduct becomes reckless if:
She intends to commit an act which she knows has a risk of harm
The risk is unreasonable and substantially greater than negligent conduct
The actor knows or has the reason to believe that others are present and harm can be caused.
Recklessness differes from negligence as it has a choice to select risk whereas negligence generally consists of carelessness and incompetence. This can be explained from the following example: If a doctor forget scissors inside patient’s uterus, he is liable for negligence while if a drunk doctor leaves scissors in the uterus of the patient he is liable for recklessness.
An act or statement becomes malicious if it is used for a purpose other than that which is sanctioned by the authority of law.
There is emphasize put on the fact that a wrongful act does not become lawful merely because the motive is good. Similarly, a lawful act doesn’t become wrongful because of an improper, bad or evil motive or malice.
An act or statement becomes malicious if it is used for a purpose other than that which is sanctioned by the authority of law. There is emphasize put on the fact that a wrongful act does not become lawful merely because the motive is good. Similarly, a lawful act doesn’t become wrongful because of an improper, bad or evil motive or malice.
The legal term “malice” is described :-
“as the state of mind that is concomitant with the intentional doing of a wrongful act without any justification or explanation. The term “malice” is concerned with the intent behind the commission of wrongful conduct or an offence. It also requires the absence of any reason, justification, or excuse behind the commission of such act. Malice in law includes: Absence of legal justification or valid excuse or recognized mitigation and presence of actual intent to cause the harm that resulted from the act or presence of wanton and willful doing of act with the knowledge and awareness that such harm may be the result.”
In law, malice has two meanings
- Intentional doing of a wrongful act
- Improper motive.
First meaning covers the intention in the act, It was explained by Bayley J.,
“Malice 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 excuse. If I give a stranger a perfect blow, likely to produce death. I do it out of malice, because I do it intentionally and without just cause or excuse. If, I maim cattle without knowing whose they are, if I poison a fishery, without knowing the owner, I do it out of malice, because it is a wrongful act, and done intentionally.”
Hence it can be defined as A wrongful act done intentionally, without just cause or excuse, it can be implied in the cases where a person has inflicted injury upon another in contravention to law, without cause or excuse. It is also known as malice in law or implied malice.
The second one refers to the motive which includes not only ill-will but any motive which is disapproved by law. Hence defining it as A wrongful act consisting of ill will and spite, it is generally relevant in the torts of defamation on priveleged occasion, malicious prosecution, injurious falsehood, deceit and conspiracy also known as malice in fact or actual malice or express malice.
The difference between the two was explained in the case S.R Venkataraman v. Union of India
“The appellant who was working as Joint Director, Family Planning in the Directorate-General of the All India Radio was prematurely retired from service. She made a representation, but it was rejected. In a writ petition under she alleged that she had a a clean service record but that baseless allegations made against her, because of malicious vendetta of the then Chairman of the Central Board of Film Censors. She alleged that the impugned order was arbitrary and retiring authority had not applied its mind to the record of her case.”
It was held that
“There was nothing on the record to show that the Chairman of the Central Board of Film Censors was able to influence the Central Government making the impugned order. It was not therefore the case of the appellant that there was actual malicious intention on the part of the Government in making the alleged wrongful order so as to amount to malice in fact.”
Malice in its legal sense means malice such as maybe assumed from the doing of a wrongful act intentionally but without just cause or excuse or for want of reasonable or probable cause.
Hence the difference can be carved out as:
Malice in law means “something done without lawful excuse.” he term “malice in law” has been very well described in the case of Shearer v. Shields
“A person inflicting injuries upon other person in contravention with the law cannot take the defense that he did so with an innocent mind.”
It can be concluded that an act committed in contravention of law will be considered as illegal irrespective of the motive behind its commission.
In its narrow and popular sense, the term ‘malice’ means an evil or improper motive. This is dealt under the second head of malice under law, it is the malice in fact or ‘actual/ express malice’. In the law of torts Malice is fact has little or no relevance. The law talks about what was done and not why it was done.
In law, malice depends, not on the evil motive which prompted the doer of the act, but upon the unlawful character of the act committed. As Cooley, J. once remarked, “Malicious motives make a bad case worse, but they cannot make that wrong which is, in its essence, lawful.”
In Bradford Corporation v Pickles, it was held that as long as the act is lawful; it does not matter however malicious intention one may have.
In this case, the defendant was held not liable of excavations on his own land so that the water table at the defendents area falls and he is forced to buy the plaintiff’s land at his own price. The court observed that it is the act, not the motive for the act that must be regarded. A malicious motive per se does not amount to an injuria or a legal wrong.
In Town Area Committee v. Prabhu Dayal
Facts: In this case the municipal authorities demolished an illegally constructed building of the plaintiff. The municipal commissioner was held to be an alleged enemy of the plaintiff
and hence the plaintiff contended that the demolition was malicious and hence illegal. The issues was whether the while discharging of legal right/duty malice personal malice comes as a catalyst it should be held liable or not?
Judgment (authority): just because some officer has malice against a citizen who has committed a wrong will not render the action of the authority invalid if it is otherwise legal. . In such a case, it is not necessary to investigate whether the action was motivated by malice or not. Held, that the plaintiff has suffered no ‘injuria’ (violation of a legal right).
However malice in fact becomes essential when we deal with cases like:
Malicious prosecution, nuisance, conspiracy, maintenance, deceit and injurious falsehood
In certain cases of defamation, the defence of qualified privilege is available if the publication was made in good faith. The presence of malice negatives good faith.
Malice may result in increase of damages for an otherwise ordinarily libel, assault or trespass.
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