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Submitted By:
Ankit kumar
ROLL NO - 2007


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no. NO.


6. ASHBY V WHITE 10-13


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I would like to thank my faculty Ms. Shushmita Singh, whose assignment of such a
relevant and current topic made me work towards knowing the subject with a greater
interest and enthusiasm and moreover he guided me throughout the project.

I owe the present accomplishment of my project to my friends, who helped me immensely

with sources of research materials throughout the project and without whom I couldn’t
have completed it in the present way.

I would also like to extend my gratitude to my parents and all those unseen hands who
helped me out at every stage of my project.
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i. To discuss (in brief) the concept of vicarious liability and its principle.
ii. To study the subject matter of Test of Control and its position in India.
iii. Discuss and analyze various case law related to test of control for establishing
vicarious liability

 Violation of a legal right without causing any harm, loss or damage to the
 Torts actionable without the proof of any damage
 Torts which require proof for initiating action

This project is based upon doctrinal method of research. This project has been
done after a thorough research based upon intrinsic and extrinsic aspects of the
Source of data: Secondary Sources
a) Books
b) Newspaper
c) Articles
e) Website
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Mode of Citation:

 The researchers have followed a uniform mode of citation throughout the course
of this project.

In common law, a tort is a civil wrong for which the law provides a remedy. The
origins of the modern law of torts lie in the old remedies of trespass. The term
itself comes from French law and means, literally, a „wrong‟ (avior trot = “to be
wrong” or to have wronged [somebody]”). It is a crime for which an injured
person can bring actions in court to recover damages against those who
committed them. The law of torts is of great importance because it is designed to
protect individuals and organisations, such as educational institutions, from civil
wrongs other than breach of contract.1
INJURIA SINE DAMNUM: - if the plaintiff suffers injury to his l egal right, he will
have a cause of action to sue the defendant even though he has not suffered any
loss or damage. The term 'injuria' means infringement or violation of a legal right.
The term 'sine' means without or in the absence of. The term 'damnum' means
damage physical, mental or otherwise. Thus, the above phrase ' Injuria sine
damno' means '' infringement of legal rig ht without damage''. In other words,
plaintiff's legal right is affected, but he ha s not suffered any loss or damage. In
such a case, the suit is maintainable eve n though the plaintiff suffers no
INJURIA SINE DAMNO means an infringement of a legal private right without any
actual loss or damage. In such a case the person whose right has been infringed

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has a good cause of action. It is not necessary for him to prove any special
damage because every injury imports damage when a man is hindered of his
right. Every person has an absolute right to property to the immunity of his
person and to his liberty and an infringement of this right is actionable per se.
Actual perceptible damage is not therefore essential as the foundation of an
action. It is sufficient to show the violation of a right in which case the law will
presume damage. Thus in cases of assault, battery, false imprisonment, libel,
trespass on land, etc, the mere wrongful act is actionable without proof of special
damage. The court is bound to award to the plaintiff at least nominal damages if
no actual damage is proved. This principle was firmly established by the election
case of Ashby v. White, in which the plaintiff was wrongfully prevented from
exercising his vote by the defendants, returning officers in parliamentary election.
The candidate from whom the plaintiff wanted to give his vote had come out
successful in the election. Still the plaintiff brought an action claiming damages
against the defendants for maliciously preventing him from exercising his
statutory right of voting in that election. The plaintiff was allowed damages by
Lord Holt saying that there was the infringement of a legal right vested in the

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The Law of TORTS in India

Under the Hindu Law and The Muslim Law tort had a much narrower conception
than the tort of the English law. The punishment of crimes in these systems
occupied a more prominent place than compensation for wrongs. The law of torts
in India is mainly the English law of torts which itself is based on the principles of
the common law of England. This was made suitable to the Indian conditions
appeasing to the principles of justice, equity and good conscience and as
amended by the Acts of the legislature. Its origin is linked with the establishment
of British courts in India.

The expression justice, equity and good conscience was interpreted by the Privy
Council to mean the rules of English Law if found applicable to Indian Society and
circumstances. The Indian courts before applying any rule of English law can see
whether it is suited to the Indian society and circumstances. The application of
the English law in India has therefore been a selective application. On this the
Privy Council has observed that the ability of the common law to adapt itself to
the differing circumstances of the countries where it has taken roots is not a
weakness but one of its strengths. Further, in applying the English law on a
particular point, the Indian courts are not restricted to common law. If the new
rules of English statute law replacing or modifying the common law are more in
consonance with justice, equity and good conscience, it is open o the courts in
India to reject the outmoded rules of common law and to apply the new rules.
The development in Indian law need not be on the same lines as in England.
In M.C. Mehta v. Union of India, Justice Bhagwati said, “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 the matter of that in any foreign country. We are certainly prepared to
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receive light from whatever source it comes but we have to build our own

Bhim Singh vs. State of J&K

Bhim Singh, a Member of the Legislative Assembly of Jammu & Kashmir, incurred
the wrath of the powers that be. They were bent upon preventing him from
attending the session of the Legislative Assembly of Jammu & Kashmir, which was
to meet on 11th September, 1985. That appears to be the only inference that we
can draw from the circumstances of the case to which we shall now refer. On
August 17, 1985, the opening day of the Budget Session of the Legislative
Assembly, Shri Bhim Singh was suspended from the Assembly. He questioned the
suspension in the High Court of Jammu & Kashmir. The order of suspension was
stayed by the High Court on 9th September, 1985. On the intervening night of
9th-10th September, 1985, he was proceeding from Jammu to Srinagar. En route,
at about 3.00 AM (on 10th), he was arrested at a place called Qazi Kund about 70
kms. from Srinagar. He was taken away by the police. As it was not known where
he had been taken away and as the efforts to trace him proved futile, his wife
Smt. Jayamala, acting on his behalf, filed the present application for the issue of a
writ to direct the respondents to produce Shri Bhim Singh before the court, to
declare his detention illegal and to set him at liberty. She impleaded the State of
Jammu & Kashmir through the Chief Secretary as the first respondent, the Chief
Minister, the Deputy Chief Minister and the Inspector General of Police, Jammu &
Kashmir as respondents 2, 3 and 4.5

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MR . E.C. Agarwala, learned Counsel for the State of Jammu and Kashmir has
placed on record a copy of the teleprinter message from the concerned authority
dated August 30, 1984 informing him that Mr. Bhim Singh the detenu, whose
detention has been challenged in this Writ Petition under Article 32 of the
Constitution has been released on August 24, 1984. This teleprinter message is
followed by a letter confirming the same. Mr. E.C. Agarwal, learned Counsel has
authenticated the letter as well as the teleprinter message, and placed them on
(2.) MRS . Jayamala, learned Counsel for the petitioner and a member of the
working committee of J. and K. Panthars Party has filed this writ petition for writ
of Habeas Corpus questioning the validity of the detention of Bhim Singh, who is a
sitting Member of the Legislative Assembly of Jammu and Kashmir State. When
the letter and teleprinter message were shown to Mrs. Jayamala, she said that
Mr. Bhim Singh has not been released because she had contacted all the possible6
sources enquiring about the release of the petitioner, but he could not be
contacted and therefore there is reason to believe that the statement made by
Mr. Agarwal is not correct. We are not persuaded to accept this submission
because it is difficult to believe that the State would make through its learned
Counsel a wholly false statement in respect of a detenu. The petitioner is at
liberty to take other steps if the petitioner is not released as stated by the learned

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(3.) THIS petition has become infructuous and stands disposed of accordingly

Ashby vs. White


Mr Ashby was prevented from voting at an election by the misfeasance of a

constable, Mr White, on the apparent pretext that he was not a settled

At the time, the case attracted considerable national interest, and debates
in Parliament. It was later known as the Aylesbury election case. In the House of
Lords, it attracted the interest of Peter King, 1st Baron King who spoke and
maintained the right of electors to have a remedy at common law for denial of
their votes, against Tory insistence on the privileges of the House of Commons.

Sir Thomas Powys defended William White in the House of Lords. The argument
submitted was that the Commons alone had the power to determine election
cases, not the courts.7

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Lord Holt CJ was dissenting from the judgment in the Court of King's Bench, but
his dissent was upheld by the House of Lords by a vote of fifty to sixteen. His
judgment reads as follows.8

So in the case of Mellor v Spateman, 1 Saund. 343, where the Corporation

of Derby claim common by prescription, and though the inheritance of the
common be in the body politic, yet the particular members enjoy the fruit and
benefit of it, and put in their own cattle to feed on the common, and not the
cattle belonging to the corporation; but that is not indeed our case. But from
hence it appears that every man, that is to give his vote on the election of
members to serve in Parliament, has a several and particular right in his private
capacity, as a citizen or burgess. And surely it cannot be said, that this is so
inconsiderable a right, as to apply that maxim to it, de minimis non curat lex. A
right that a man has to give his vote at the election of a person to represent him
in Parliament, there to concur to the making of laws, which are to bind his liberty
and property, is a most transcendent thing, and of an high nature, and the law
takes notice of it as such in divers statutes: as in the statute of 34 & 35 H. 8, c. 13,
intitled An Act for Making of Knights and Burgesses within the County and City
of Chester; where in the preamble it is said, that whereas the said County
Palatine of Chester is and hath been always hitherto exempt, excluded, and
separated out, and from the King's Court, by reason whereof the said inhabitants
have hitherto sustained manifold disherisons, losses, and damages, as well in
their lands, goods, and bodies, as in the good, civil, and politic governance, and
maintenance of the commonwealth of their said county, &c. So that the opinion
of the Parliament is, that the want of this privilege occasions great loss and
damage. And the same farther appears from the 25 Car. 2, c. 9, an Act to enable
the County Palatine of Durham to send knights and burgesses to serve in
Parliament, which recites, whereas the inhabitants of the County Palatine of
Durham have not hitherto had the liberty and privilege of electing and sending
any knights and burgesses to the High Court of Parliament, &c. The right of voting
at the election of burgesses is a thing of the highest importance, and so great a

(1703) 92 ER 126, 137-139 and (1703) 2 Ld Raym 938, 953-958
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privilege, that it is a great injury to deprive the plaintiff of it. These reasons have
satisfied me as to the first point.9

If the plaintiff has a right, he must of necessity have a means to vindicate and
maintain it, and a remedy if he is injured in the exercise or enjoyment of it, and,
indeed it is a vain thing to imagine a right without a remedy; for want of right and
want of remedy are reciprocal...

And I am of opinion, that this action on the case is a proper action. My brother
Powell indeed thinks, that an action upon the case is not maintainable, because
here is no hurt or damage to the plaintiff; but surely every injury imports a
damage, though it does not cost the party one farthing, and it is impossible to
prove the contrary; for a damage is not merely pecuniary, but an injury imports a
damage, when a man is thereby hindered of his right. As in an action for
slanderous words, though a man does not lose a penny by reason of the speaking
them, yet he shall have an action. So if a man gives another a cuff on the ear,
though it cost him nothing, no not so much as a little diachylon, yet he shall have
his action, for it is a personal injury. So a man shall have an action against another
for riding over his ground, though it do him no damage; for it is an invasion of his
property, and the other has no right to come there. And in these cases the action
is brought vi et armis. But for invasion of another's franchise, trespass vi et armis
does not lie, but an action of trespass on the case; as where a man has retorna
brevium, he shall have an action against any one who enters and invades his
franchise, though he lose nothing by it. So here in the principal case, the plaintiff
is obstructed of his right, and shall therefore have his action. And it is no objection
to say, that it will occasion multiplicity of actions; for if men will multiply injuries,
actions must be multiplied too; for every man that is injured ought to have his

To allow this action will make publick officers more careful to observe
the constitution of cities and boroughs, and not to be so partial as they commonly
are in all elections, which is indeed a great and growing mischief, and tends to the
prejudice of the peace of the nation...11

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Let us consider wherein the law consists, and we shall find it to be, not in
particular instances and precedents; but on the reason of the law, and ubi eadem
ratio, ubi idem jus. This privilege of voting does not differ from any other
franchise whatsoever. If the House of Commons do determine this matter, it is
not that they have an original right, but as incident to elections. But we do not
deny them their right of examining elections, but we must not be frighted when a
matter of property comes before us, by saying it belongs to the Parliament; we
must exert the Queen's jurisdiction. My opinion is founded on the law of

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To conclude, law of tort is a branch of law which resembles most of the other
branches in certain aspects, but is essentially different from them in other
respects. Although there are differences in opinion among the different jurists
regarding the liability in torts, the law has been developed and has made roots in
the legal showground. There are defined elements and conditions of liability in
tort law. This brough of law enables the citizens of a state to claim redress for the
minor or major damage cause to them. Thus the law has gained much confidence
among the laymen.

In cases of injuria sine damno, i.e., the infringement of an absolute private right
without any actual loss or damage, the person whose right is infringed has a cause
of action. Every 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
se. In India, the same principles have been followed. The Privy Council has
observed that “there may be, where a right is interfered with, injuria sine damno
sufficient to found an action: but no action can be maintained where there is
neither damnum nor injuria.
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 LAW OF TORTS by R.K. Bangia
 Michael A. Jones, Textbook on Torts
 THE LAW OF TORTS by Ramaswamy Iyer
 THE LAW OF TORTS by Mrs. Annu Mehra

 THE LAW OF TORTS by Ratanlal and Dhirajlal