Law of Torts
[For LL.B & Commerce Students
of various Universities of India;
Civil/Judicial Services Aspirants]
Dr. ASHOK K. JAIN
LL.M; Ph.D (Delhi)
Ascent Publications
21 /29, Shakti Nagar, Delhi-110007
Copyright © 1997 - ASCENT PUBLICATIONS, Delhi.
First Edition, 1997
Second Edition, 1999
Reprints with Supplements 2004 & 2007
Third (Enlarged) Edition, 2008
Fourth Edition, 2010
Fifth Edition, 2012
Price Rs. 160.00
All Rights Reserved No part of this work may be copied, reproduced, adapted, abridged
or translated, stored in any computer or transmitted in any form by any means without
prior written permission of the publishers.
Published By Ascent Publications, 21/29, Shakti Nagar, Delhi.
Printed at G. S. Offset, Delhi.
CONTENTS
CHAPTER 1. INTRODUCTION: DEFINITION NATURE AND SCOPE
Evolution of Law of Torts in England and India 1
Purpose/Function of the Law of Torts 2
Remedies in Tort 4
Nature and Definition of Tort 4
Analysis of Winfield’s Definition 6
Foundation of Tortious Liability: Law of Tort or Law of Torts? 8
Comparison of Tort with Other Branches of Law 11
Discharge of Tort 17 Waiver of Tort 17
Disability to Sue and To be Sued in India 17
General Conditions of Liability for a Tort 18
Injuria sine damnum 19, 31
Damnum sine injuria 22, 31
Contractual and Tortious Liability 27
Mental element in Tortious Liability (Malice) 33
CHAPTER 2. DEFENCES AGAINST TORTIOUS LIABILITY
Volenti Non Fit Injuria (Defence of Consent) 40, 63, 66
Limitations / Exceptions to the Maxim 47, 67
Rescue Cases 48
Plaintiff the Wrongdoer 51
Inevitable Accident 51
Act of God - vis Major 53
Pivate Defence 55
Mistake 57
Necessity 57
Statutory Authority 58
Acts causing Slight Harm 61
CHAPTER 3. NEGLIGENCE
Theories of Negligence 69
Meaning and Definition of Negligence 71
Essentials of Negligence 73
Res Ipsa Loquitur (Proof of Negligence) 86, 113
Defences to Negligence 94
Professional Liability for Negligence 96
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Law of Torts
CHAPTER 4. NERVOUS SHOCK
Nervous Shock: Reasonably Foreseeable Consequence of
Negligence 116
Illustrations/Cases 118
CHAPTER 5. REMOTENESS OF DAMAGE
Remoteness: A Limitation to an Action for Negligence 133
Tests of Remoteness of Damage 135
Intended Consequences 143
When the Damages Excluded as Too Remote 144
Chapter 6. No Fault Liability: Strict and Absolute Liability
Strict Liability 150
Rule in Rylands v Fletcher 151
Applicability of Rylands Rule in India 158
Rule of Absolute Liability (Rule in M.C. Mehta Case) 164
Public Liability Insurance Act, 1991 169
National Environment Tribunal Act, 1995 171
Comparison of Rylands Rule with M.C. Mehta's Rule 174
CHAPTER 7. VICARIOUS LIABILITY INCLUDING STATE LIABILITY
Liability Arising Out of a Special Relationship 178
Principles on which the Vicarious Liability is Based 180
Respondeat Superior 180
Qui facit per alium facit per se 181
Who is a Servant? 182
The Course of Employment 185
Vicarious Liability of the State 193, 206
Doctrine of Sovereign Immunity 194
Vicarious Liability: Plea for Review 197
Law Commission of India, First Report, 1956 204
Torts Committed in Exercise of Statutory Duties 211
CHAPTER 8. DEFAMATION
Libel and Slander 216
Essentials of Defamation (Libel) 219, 239
The Innuendo 221, 241
Defences to Defamation 229
Justification or Truth 229
Fair Comment 230
Privilege 231
Burden of Proof 236
Remedies for Defamation 237
Apology 238
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CHAPTER 9. NUISANCE
Kinds of Nuisance 250
Public Nuisance 250
Private Nuisance (Tort of Nuisance) 251
Damages in Nuisance 253
Defences to Nuisance 254
Abatement of Nuisance 255
CHAPTER 10. CONTRIBUTORY AND COMPOSITE NEGLIGENCE
Contributory Negligence 260
The Last Opportunity Rule 267
Theories of Contributory Negligence 270
Composite Negligence 272
Distinction between Composite and Contributory Negligence 274
Joint Tortfeasors 275
CHAPTER 11. TRESPASS TO PERSON AND PROPERTY
Trespass to Person 280
Battery 281
Assault 282
False Imprisonment 284
Remedies: Trespass to Person 289
Trespass to Land 290
Defences to Trespass 295
Remedies for Trespass to Land 295
Trespass to Goods 296
Detinue 296
Conversion 298
Distinction between Trespass and Conversion 302
Distinction between Detinue and Conversion 302
CHAPTER 12. MALICIOUS PROSECUTION AND CONSPIRACY
Malicious Prosecution 304
Distinction between False Imprisonment and Malicious Prosecution 311
Conspiracy 312
CHAPTER 13. OCCUPIER'S LIABILITY FOR DANGEROUS PREMISES
Obligation towards Lawful Visitors 317
Structures adjoining Highways 321
Obligation towards Trespassers 322
Obligation towards Children 324
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Law of Torts
CHAPTER 14. REMEDIES IN TORTS
Judicial Remedies: Damages 326
Measure of Damages (Restitutio in integram) 326
Kinds of Damages 328
Prospective and Continuing Damages 330
General and Special Damages 331
Damages for Personal Injury 332
When Damages are Irrecoverable 334
Injunctions 335
Specific Restitution of Property 335
Extra-Judicial Remedies 335
Page vii
TABLE OF CASES
A
A.H. Khodwa v State of Maharashtra 200 A.L. Ranjane v Ravindra Ishwardas Sethna 252
Abdul Majid v Harbans Chaube 310 Abrath v North Eastern Ry. Case 307, 308 Acton v
Blundell 24 Adam v Ward 233 Adams v Ursell 259 Agya Kaur v Pepsu R.T.C. 88, 263
ALCOCK v CHIEF CONSTABLE OF SOUTH YORKSHIRE POLICE 118, 126, 128,
129 Allen v Bloomsbury Health Authority 149 Allen v Flood 9, 34 Amina Begam v Ram
Prakash 90 Amthiben v S.G., ONGC 274 Anandi Lal v Fateh Ali 299 Anwar Hussain v
Ajoy Kumar 288 Armory v Delamirie 301 Arthur J.S. Hall & Co. v Simons 96 ASHBY v
WHITE 10, 20, 26, 32, 331 Ashton v Jennings 282
Assam State Coop. Ltd. v Smt. Anubha Sinha 53
Attia v British Gas Plc. 118
Austin v Dowling 311
Austin v Great Western Rly. 78
Ayer v Craven 218
B
Baker v T.E. Hopkins & Son 50, 65
Balak Glass Emporium v United India Ins. Co. Ltd. 36
Balakrishnan v Subramanian 89
Balbhaddar v Badri Sah 305
Ball v Ray 253
Banshi v Goverdhan 297
Baoler v Holder 310
Barnett v Packer & Co. 77
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Law of Torts
Barwick v English Joint Stock Bank 186 Basely v Clarkson 291
Bavisetti Venkata Surya Roa v Nandipati Muttayya 283 Baxi Amrik Singh v Union of
India 207 Baxter v Taylor 291
Bayley v Manchester S. & L. Railway 192 Beard v London General Omnibus Co. 189
Bellamy v Wells 253 Bernina Mills v Armstrong 266 Berry v B.T.C. 310
Bhagwat Swarup v Himalaya Gas Co. 262 Bhaiyalal v Rajrani 192
Bharat Commerce & Industries v Surendra Nath 309 Bhim Singh v State of J&K 21, 213,
214, 329 Bhogi Lal v The Municipality of Ahmedabad 61 Bhopal Gas Leak Case 167
Bird v Holbrooke 51, 56, 323 Bird v Jones 285
Blyth v Birmingham waterworks Co. 72, 81, 108 Bolam v Friern Hospital Management
Committee 97, 102 Bolton v Stone 81, 111 Boulton v Hardy 5
BOURHILL (OR HAY) v YOUNG 108, 117, 120, 128
Bowater v Rowley Regis Corpn. 43, 44, 63, 66
Box v Jubb 156
Boxsius v Golbert 235
Boy Andrews v St. Roguvald 272
Bradford Corporation (Mayor of) v Pickles 25, 34
Bradon v Osborne (“Skylight case”) 48, 265
Braj Sunder Deb v Bamder Das 309
Brinkly v Farmers Elevator Mutual Insurance Co. 181
British Columbia Electric Co. v Loach 268
British Railway Board v Herrington 323, 324
Brook v Bool 275
Brown v Kendall 52
Buckpitt v Oates 46
Burgess v Grey 183
Butterfield v Forrester 261, 267
Byrne v Boadle 89
Page ix
Law of Torts
c
Cambridge Water Co. Ltd. v Eastern Countries Leather Plc. 149
Campbell v Padigngton Corpn. 13, 251
Capital and Counties Bank v Henty & Sons 221
Carmarthenshire County Council v Lewis 84
Carstairs v Taylor 157
Cassidy v Daily Mirror Newspapers Ltd. 223
Caswell v Powell D. Collieries 272
Cates v Mongini Bros. 80, 108, 318
Cattle v Stockton Waterworks Co. 334
Cayzer Irvine & Co. v Carran Co 271
Century Insurance Co. Ltd. v Northern Ireland 188
Chadwick v British Transport Corpn. 118, 129, 131
CHAIRMAN, RAILWAY BOARD v CHANDRIMA DAS 202
Chapman v Honig 34
Chapman v Pickers 7
Cheater v Cater 153, 173
Cherubin Gregory v State of Bihar 56, 323
Cheshire v Bailey 188
Chesmore v Richards 23
Chhaganlal v Thana Municipality 311
Christman 320
Church of Scientology v Johnson Smith 230, 232
Cleghorn v Oldham 41
Cole v Turner 281
Com. Dig. Action Trover E. 298
Common Cause, A Registered Society v UOI 198
Consolidate Company v Curtis & Son 57
Conway v George Wimpey & Co. Ltd. 191
Copps v Miller 263
Corea v Peiris 307
Corrosan v Corcoran 222
Coward v Baddeley 62,282
Cowell v Rosehill Race Course Co. 293
Crofter Hand Woven Harris Tweed Co. Ltd. v Veitch 314
Crook v Derbyshire Stone Ltd. 190
Cutler v United Dairies (London) Ltd. 44, 50
Page X
Law of Torts
D
D. P. Chowdhery v Km. Manjulata 224, 240
Dann v Hamilton 45
Darshan Ram v Nazar Ram 158
Darshani Devi v Sheo Ram 267
Davies v Liverpool Corpn. 79
Davies v Mann 261, 267, 271
Davies v Swan Motor Co. Ltd. 270
Davies v Vernon 301
Davis v Shipston 247
Deatons Proprietary Ltd. v Flew 189
Debendra Bhoi v Meghu Bhoi 55
Devereaux v Barclay 300
Devinder Singh v Mangal Singh 183
Dhadphale v Gurav 25
Dhanna Lal v Thakur Chittar Singh 255, 258
Dharni Dhar v Chandra Shekhar 279
Dhian Singh v Union of India 303
Dhirendra Nath Sen v Rajat Kanti Bhadra 226
Dickson v Reuter's Telegram Co. 24, 28
Dinbai R. Wadia v Farukh Mobendjina 178
Dixon v Holden 215
Dollman v Hillman Ltd. 250
DONOGHUE v STEVENSON (”SNAILIN THE BOTTLE CASE") 10, 28, 29, 75, 77,
109, 323
Dooley v Cammell Laird & Co. 118
DOUGHTY v TURNER MFTG. CO. LTD. 142
Dr. Lakshman Balkrishna Joshi v Dr. Trimbak Bapu Godbole 97
Dr. M. Mayi Gowda v State 82
Dr. Ram Raj Singh v Babulal 251
Dr. T.T. Thomas v Elisa 98
Dulieu v White and Sons 118, 120
Durga Prasad v State 249
E
E. I. Ltd v Klaus Mittelbachert 169
Eastern & South African Telephone Co. v Cape Town Tramways 256
Eastwood v Homes 225 Elias v Pasmore 292 Ellis v Loftus Iron Co. 290
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Law of Torts
F
Fairman v Perpetual Investment Building Society 318, 319
Fardon v Harcourt 81, 108, 111
Farrugia v Grant Western Railway 80
Fateh Singh v State of U.P, 334
Fetter v Beale 330
Firth v Bowling Iron Co. 154
Foster v Gilingham Corporation 85
Fouldes v Willonghby 299, 302
Fowler v Lanning 280, 291
Froom v Butcher 263
G
Gangaram v Kamlabai 114 Garbett v Hayell 225 Garikipati v Araza Biksham 287
Gas Light Coke v Vestry of St. Mary Abbots, Kensington 59
Gaya Prasad v Bhagat Singh 306
Gaya v Mahabir 219
Gee v Metropolitan Rly. Co. 265
Gifford v Dent 294
Giles v Walker 172, 153, 173
Gill v General Iron Screw Colliery Co. 71
Glasgow Corpn. v Muir 81, 79, 108, 325
Glasgow Corporation v Taylor 85
Glinski v McIyer 309
Gloucester Grammar School Case 23
Glover v London & S.W. Rly. 144
Gobald Motor Services v Veluswami 89
Grant v Australian Knitting Mills Ltd. 30, 77, 109
Green v Chelsea Water Works Co. 157
Greene v Chelesea Borough Council 320
Greenland v Chaplin 135
Greenock Corpn. v Caledonian Railway 156
Gregory v Duke of Brunswick 314
Guest v Warren 331
Gulf Oil (GB) Ltd. v Page 313
Guru Govekar v Filomena F. Lobo 183
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Law of Torts
H
H.C.D. Silva v E.M. Potenger 218 Hadley v Baxendale 15 Hall v Brooklands Auto
Racing Club 41, 63 Halligua v Mohansundaram 123 HAMBROOK v STOKES BROS.
118, 119 Hammer Smith Rail Co. v Brand 59
Hardeo Kaur v Rajasthan State Road Transport Corpn. 332
Harihar Pershad v Bholi Pershad 277
Haryana Cotton Mills Co. Ltd. v B.B. & C.I.Rly. Co. 301
Hattangadi v M/s. Pest Control India Pvt. Ltd. 332
HAYNES v HARWOOD ("POLICE CONSTABLE’S CASE”) 49, 50, 65, 145
HEADMISTRESS, GOVT. GIRLS HIGH SCHOOL v MAHALAXMI 201
Heath v Mayor of Brighton 256
Heaven v Pender 73, 75, 78, 107
Hegarty v Shine 26
Hemmings v Stoke Poges Golf Club 295
Herd v Weardale Steel, Coal & Coke Co. Ltd. 288
Herniman v Smith 310
Herring v Boyle 286
Hevican v Ruane 125
Hewitt v Bonvin 179
Hicks v Faulker 307, 309
Hilder v Associated Portland Cement Mftrs. Ltd. 322
Hill v Chief Constable, West Yorkshire 83, 112
Hirabai v Dinshaw 219
Hoare & Co. v McAlpine 176
Holford v Bailey 62
Hollins v Fowler 300
Holmes v Mather 52, 291
Holmes v Wilson 295
Home Office v Dorset Yacht Co. Ltd. 77
Horrocks v Lawe 236
Huckle v Money 327
HUGHES v LORD ADVOCATE 140, 147
Hulton & Co. v Jones 224, 239
Huntley v Thornton 314
Hurst v Picture Theatres Ltd. 281, 293
Huth v Huth 227
Hyett v Great Western Railway 50
Page xiii
Law of Torts
I
IIot v Wilkes 56
Imperial Chemical Industries v Shatwell 43, 67, 182 Indian Council for Enviro Legal
Action v UOI 167 Indian Insurance Co. Assn. Pool v Radhabai 207 Indian Medical
Asscn. v V.P. Shantha 100 Innes v Wylie 281
Insurance Commissioner v Joyce 46 Iqbal Kaur v Chief of Army Staff 208 Ishwar Devi v
Union of India 109
J
JACOB MATHEW v STATE OF PUNJAB 73, 101 Janvier v Sweeney 119
Jayalakshmi Saltworks Pvt. Ltd. v State of Gujarat 2, 5, 11, 161
Jiwan Dass Roshan Lal v Karnail Singh 192
Jiwan Mai v Lachman Das 232
Joel v Morison 189
Joginder Kumar v State of U P. 287
John Lewis & Co. v Times 288
John v MGN Ltd. 329
Joliffe v Willmett & Co. 291
Jones v Boyce 264
Jones v Livox Quarries Ltd. 262
Joseph v Shew Bux 328
K
K. Nagireddi v Govt. of Andhra Pradesh 160
Kallulal v Hemchand 54, 321
Kannu Rowther v Kerala State R.T.C. 115
Karnataka State R.T.C. v Krishnan 114, 273
KASTURI LAL RALIA RAM JAIN v STATE OF U.P. 196, 211
Kawanan Kea v Polyblank 194
Kerr v Kennedy 218
Kessojee Issur v G.I.P.Rly. 264
Khusro v N.A.Guzder 277
Kiddle v City Business Properties Ltd 157
KING v PHILLIPS 118, 122, 135
Kirk v Gregory 58,296
KLAUS MITTELBACHERT v EAST INDIA HOTELS LTD 168
Page xiv
Law of Torts
Kleinwort, Sons & Co. v Comptoir National D’ Escompte de Paris 300
Knupffer v London Express Newspaper Ltd. 226
Krishan Kaushik v Union of India 201
Kubach v Hollands 110
Kuldip Singh v Subhash Chander Jain 253
Kumari Alka v Union of India 324
Kusuma Begum (Smt.) v The New India Assurance Co. Ltd. 162
L
Lado v U.P. Electricity Board 332 Lakshmichand K. Punja v Ratnabai 319 Latham v R.
Johnson & Nephew Ltd. 324 Latimer v A.E.C. Ltd. 83 Leigh v Gladstone 282 Letang v
Cooper 280, 291 LIESBOSCH DREDGER v EDISON 137, 138, 327 Likiw v Samuels
187
Limpus v London General Omnibus Co. 181, 191 lllot v Wilkes 47
Llyod v Grace, Smith & Co. 179, 187 Lonrho Plc. v Fayed 315, 316 Lowery v Walker
323
Lucknow Development Authority v M.K. Gupta 208
M
M. & S.M. Railway Co Ltd. v Jayammal 266
M. Veerappa v Evelyn Squeria 96
M.C. Grown v Northern Ireland Housing Executive 321
M.C. MEHTA v UNION OF INDIA 9, 37, 150, 164
M.P. ELECTRICITY BOARD v SHAIL KUMAR 162
M.S.Chokkaligam v State of Karnataka 298
M/s. Dedha & Co. v M/s. Paulson Medical Stores 279
Madan Mohan Singh v Bhirgunath Singh 306
Madhav V. Kudwa v Madhavdas Vallabhdas 291
MADRAS RAILWAY CO. v ZAMINDAR OF CARVETNAGARAM 159, 160
Maharani of Nabha v Province of Madras 286
Mahender Ram v Harnandan Prasad 227
Makbool Ahmed v Bhura Lal 109
Manchester Corporation v Markland 85
MANINDRA NATH MUKHERJEE v MATHURADAS CHATTURBHUJ 55, 89, 113
Manju Bhatia v New Delhi Munic. Corpn. 28
Page xv
Law of Torts
March V.E. & M.H. Stramare Pty. Ltd. 270
Mariyan Jasub v Hematlal 192
Martin v Watson 307
Marzetti v Williams Bank 21
Mata Prasad v Union of India 80
McFarlane v Tayside Health Board 99
MCLOUGHLIN v O’ BRIAN 124, 129, 131
McPherson v Daniels 229
McQuire v Western Morning News Co. 230
Mee v Cruikshank 286
Melepurath Sankunni Ezhuthassan v Thekittil Geopalankutty Nair 237 Merring v
Grahame White Aviation Co. 286 Merryweather v Nixan 278
Mersey Docks & Harbour Board v Coggins & Griffiths (Liverpool) Ltd. 184
Metropolitan Asylum District v Hill 61 Mi Taw v Nga Ket 144
Middleweek v Chief Constable of the Merseyside Police 288 Mills v Brooker 298 Mint v
Good 322
Mogul Steamship Co. v McGregor Gow & Co. 23, 31, 313
Mohd. Amin v Jogendra Kumar 304
Mohd. Murad v Govt. of U P. 211
Moorgate Mercantile Co. Ltd. v Finch 298
Morningstar v Fafayette Hotel Co. 21
Morris v Marsden 283
Morris v Nugent 56
Morrison v Richie & Co. 223
Moss v Christchurch R.D.C. 327
Motias Costa v Roque Augustinho Jacinto 266
Mourton v Poulter 324
Mrs. Lampert v Eastern National Omnibus Co. 147 Mrs. Read v J. Lyons and Co. 67,153
Mrs. Sydney Victor v Janab S. Kadar Sheriff 264 Mst. Ramdhara v Mst. Phulwatibai 220
Municipal Board of Agra v Asharfi Lal 20
MUNICIPAL CORPN., DELHI v SUBHAGWANTI (“CLOCKTOWER CASE") 91,
114, 321
Municipal Corpn., Delhi v Sushila Devi 94
Murphy v Steeplechase Amusement Co 41
Murray v Harringay Arena Ltd. 41
Murray v Minister of Defence 286
Page xvi
Law of Torts
N
N. Achuthan v The Deshabhimani Printing & Publishing House 229
N. NAGENDRA RAO & CO. v STATE OF A.P. 198, 213
N. Narayana Bhattathrippad v Travancore Govt. 160, 175
Nagendra Nath Ray v Basanta Das Bairagya 305
Nagendra Rao v State of A. P. 210
Nalini Sen Gupta v Corporation of Calcutta 190
Nandram Heeralal v UOI 207
National Ins. Co. v Kastoori Devi 263
Nemi Chand v Khemraj 228
Nettleship v Weston 46
Newstead v London Express Newspaper Ltd. 239
Nichols v Marsland 54, 156
Nitin Walia v Union of India 84
Nitro-Glycerine Case 52
Nobin Chunder Dey v Secy, of State, India, 194
Noble v Harrison 154, 253, 257, 321
Northwestern Utilities v London Guarantee & Accident Co 156 Norwich Pharmacal Co.
v Customs & Excise Commrs. 277
O
O’Connel v Jackson 263
O’Gorman v O’Gorman 173
Oliver v Birmingham & Midland Omnibus Co. 267
Oriental F.& G. Ins.Co. v Manjir Kaur269
Ormrod v Crosvilie Motor Services Ltd. 179
OVERSEAS TANKSHIP (U.K.) LTD. v MORTS DOCK & ENGG CO. LTD.
(WAGONMOUNDCASE) 138 Ownes v Liverpool Corpn. 120
P
P. & O. Steam Navigation Co. v Secretary of State, India 194, 207 P. Gangadharan Pillai
v State of Kerala 201 P. Kader v K.A. Alagarswami 282
P. Pearl (Exporters) Ltd. v Camden London Borough Council 82
P. Seetharamayya v Mahalakshmma 24
P.V. Rao v Khushaldas 195
Padmavati v Dugganaika 42
PAGE v SMITH 126, 128, 129
Palsgraf v Long Island Railroad Co. 82
Page xvii
Law of Torts
Pandit Gaya Prashad Tewari v Sardar Bhagat Singh 306
Pannalal v Shri Krishna 306
Parker v British Airways Board 301
Patterson v Royal Oak Hotel Ltd. 139
Pearson v Coleman Bros. 323
people’s Union for Democratic Rights v Police Commr., Delhi 213
pepsu R.T.C. v Qimat Rai Jain 264
Perera v Vandiyar 291
Periya Goundan v Kuppa Goundan 306
Phillips India Ltd. v Kunju Punnuv 97, 98
Phipps v Rochester Corpn. 325
Pigney v Pointers Transport Services Ltd. 145
PINNAMANENI NARASIMHA RAO v GUNDAVARAPU JAYAPRAKASU 100
Ponting v Noakes 155, 173
Poultion v London & S. West Rly 192
Premwati v State 192
Pushpa Thakur v UOI 207, 209, 210
Pushpabai Purshottam Udeshi v Ranjit Ginning & Pressing Co 186
Q
Quebec Railway, Light Heat & Power Co. Ltd. v Vandry & Others 163 Quinn v Leathern
34, 314
R
R. S. R. T. C. v K. N. Kothari 185 R. v Clearance 42 R. v Donovan 47 R. v S. George
282 R. v Williams 42
Radhey Shyam v Gur Prasad 252, 259 Radheyshyam Tiwari v Eknath 229, 244 Radley v
L.& N. W.Rly. 268
Rajkot Municipal Corpn. v Manjulben Jayantilal Nakum 1, 3, 28, 72, 73, 75, 93, 322
Ram Bihari Lal v Dr. J.N Shrivastava 98
Ram Ghulam v State of U.P. 60, 211
Ram Pyare Lal v Om Prakash 284
Ramalinga Nadar v Narayyana Reddiar 54
Raman Services Pvt. Ltd. v Subhash Kapoor 97
RAMCHANDRARAM NARGAM RICE MILLS LTD. v MUNICIPAL COMMR. 60
Ramdeo v Birdichand Sumermal 307 Ramnath v Kalanath 158
Page xviii
Law of Torts
Ratcliffe v Evans 331
Ravenscroft v Rederiaktiebolaget Transatlantic 125 Re Francis Mezzora 223
RE POLEMIS AND FURNESS, WITHY & CO. 15, 136
Revill v Naubery 324
Reynolds v Times Newspaper Ltd. 235
Richards v Lothian 156
Richardson v Atkinson 298
Ricketts v Thomas Tilling Ltd 190
Rigby v Hewitt 135
Robert Addie & Sons v Dumbreck 323
Roberts v Shanks 188
Robinson v Balmain New Ferry Co. Ltd. 288
Robinson v Kilvert 256
Robinson v The Post Office 141
Roe v Minister of Health 88
Rogers v Rajendra Dutt 19
Rohtas Industries Ltd. v Rohtas Industries Staff Union 315, 316
Roles v Nathan 320
Rookes v Barnard 9, 329
Roop Lal v Union of India 208, 299
Rouse v Gravel Works Ltd. 24
Rudal Shah v State of Bihar 213, 214, 288
Rup Ram v The Punjab State 207
Rural Transport Service v Bezlum Bibi 79, 96, 260
RUSTOM K. KARANJIA v K.M.D. THACKERSEY 234, 243
Rylands v Fletcher 5, 53, 87, 149, 150-153, 155, 158, 159, 164, 172
s
S. Chettiar v Sri Ramkumar Ginning Firm 252
S. Dhanaveni v State of Tamil Nadu 85
S. Vendantacharya v Highways Dept, of South Arcot, 156
S.C.M. (U. K.) Ltd. v W. J. Whittall & Sons 142
S.N.M. Abdi v Prafulla K. Mohanta 221
S.Vedantacharya v Highways Dept, of South Arcot 113
Sadleigh v O’ Callageham 252
Safdar Husain v Union of India 79
Sarju Prasad v Mahadeo Prasad 154
Satbir Singh v Balwant Singh 273
Satya Wati Devi v UOI 207
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Law of Torts
Sayers v Harlow Urban Dist. Council 264
Schneider v Eisovitch 123
Scott v London & St. Katherine Docks Co. 86
Scott v Sampson 215
Scott v Shepherd 134, 143, 145, 147
Sebastian M. Hongray v UOI 213, 214, 329
Secy. of State v Gokal Chand 145, 148
Selvanayagam v University of West Indies 263
Shabban Bin Hussain v Chong Fook Kam 287
Shaikh Ismail v Venkatanarasimhu 258
Sharp v Powell 144
Shaymal Baran Saha v State of W.B. 91 Shearer v Shields 33
Sheikh Mohmd. V The British Indian Steam Navigation Co. 29
Shelter v City of London Electric Lighting Co. 259
Shyam Sunder v State of Rajasthan 207, 210
Sidraj Dhadda v State of Rajasthan 97
Sim v Stretch 220
Six Carpenter’s Case 292
Skandia Insurance Co. v Kokilaben 191
Skinner v Shaw 9
Slater v Worthington 54
SMITH v CHARLES BAKER & SONS (“STONE QUARRY CASE”) 44, 66
SMITH v LEECH BRAIN & CO. (“EGGSHELL SKULL” CASE) 141, 149
Smith v London & South Western Railway Co. 59, 136
Smt. Basava v State of Mysore 213
Smt. Indrani Raj Durai v Madras Motor & Gen. Ins. Co. 269
Smt. Kundan Kaur v S. Shankar Singh 185
Smt. Manijeh v Sohrab P. Kotwal 308
Smt. S. R. Venkataraman v Union of India 33
Smt. Shivkor v Ram Naresh 84
Sohan Lal Passi v P. Sesh Reddy 191
Sorrel v Smith 314
South India Railway Co. v Ramakrishna 220 South Indian Industries Ltd. V Alamelu
Ammal 45, 63 South Wales Miners’ Federation v Glamorgan Coal Company 34 Stanley
v Powell 52
State Bank of India v Shyama Devi 179, 187 State of A.P v Challa Ramakrishna Reddy
201 STATE OF A.P. v GOVARDHANLAL PITTI 35
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Law of Torts
State of Assam v Md. Nizamuddin Ahmed 200 State of Gujarat v Govindbhai 201 State
of Gujarat v Memon Mahomed 213 State of Haryana v Smt. Santra 98 State of M.P. v
Chironji Lal 207
State of Maharashtra v Kanchanmala Vijay Singh 186,187
State of Mysore v Ramchandra 158
State of Orissa v Padmalochan 207
State of Punjab v M/s Modern Cultivators 89
State of Punjab v Shiv Ram 99
STATE OF RAJASTHAN v VIDYAWATI 195, 207, 208
State of U.P v Hindustan Lever Ltd. 197, 212
State of U.P. v Tulsi Ram 212
Stearn v Prentice Brothers, Limited 173, 175
Stephens v Myers 283
Stevens v Midland Coun Ry. 309
Subbayya v Verayya 277
Sukhraji v State R.T.C., Calcutta 111
Sullivan v Creed 145, 148
Sushma Mitra v M.P. State Road Transport Corpn 80, 107, 263
Swadling v Cooper 261
Syed Akbar v State of Karnataka 114
I
T. C. Balakrishnan Menon v T.R. Subramanian 48, 155 T.J. Ponnen v M.C. Verghese
228, 240 T.V. Rama Subba Iyer v A.M.A. Mohideen 224, 240 Tarry v Asthon 184
Temulgi Jamshedji v The Bombay Tramway Co. 109
The National Small Industries v Bishambhar Nath 90
The Secretary of State, India in Council v Hari Bhanji 195
Theaker v Richardson 227, 228, 241
Titchener v British Railways Board 319, 325
Tolley v J. S. Fry & Sons, Ltd. 222
TOWN AREA COMMITTEE v PRABHU DAYAL 25, 35
Tozer v Child 20
Tuberville v Savadge 283
Turner v Jagmohan Singh 56
TUSHAR KANTI GHOSH v BINA BHOWMIC 207, 231, 246 Twine v Beans Express
Ltd. 191
Page xxi
Law of Torts
U
U.P. State Electricity Board v Dist. Magistrate, Dehradun 169
Union of India v Harbans Singh 209
Union of India v Lalman Badri Prasad 265,269
Union of India v Savita Sharma 207
Union of India v Sugrabai 208, 210
Union of India v Supriya Ghosh 265
Ushaben Trivedi v Bhagyalaxmi Chitra Mandir 25
V
Vaughan v Taff Vale Rail Co. 59 Vendenburg v Truax 134 Venu v Coorya Narayan 310
Victorian Railways Commissioner v Coultas 118 Videan v British Transport Commission
50 Vidya Devi v M.P State R.T.C. 269
w
W.H. Smith & Son v Clinton & Harris 278 Wagner v International Rail Co. 50, 65
Walker v Brewster 253 Walker v T. Sainsbury 46 Watkins v Lee 310
Wheeler v Mertor Board Mills Ltd. 47, 67
WHITE v CHIEF CONSTABLE OF SOUTH YORKSHIRE POLICE 126, 129
Me Farlane v E.E. Caledonia Ltd. 129
White v J. and F. 234
WHITE v JOHM WARRICK & CO. LTD. 27
Wilkinson v Downston 132
Williams v Jones 188
Winter Garden Theatre (London) Ltd. v Millenium Ltd. 293
r
Winterbottom v Wright 29
Wood v Leadbitter 293
Woolridge v Summer 41, 63
Wright v Rosenbaum 226
Page xxii
Law of Torts
X
X Ltd. v Morgan Grampian (Publishers) Ltd. 278
Y
Yachuk v Oliver Blias Co. Ltd. 266
Youssoupoff v Metro Goldwyn Mayer Pictures Ltd. 225
Page xxiii
Law of Torts
References
1.
Law of Torts - R.K Bangia
2.
The Law of Torts - Ratanlal & Dhirajlal
3.
Winfield & Jolowicz on Law of Torts - W.V.H. Rogers.
4.
Salmond & Heuston on Law of Torts – R.F.V. & R.A. Buckley.
5.
Law of Torts & Consumer Protection Act - J.N. Pandey.
6.
Law of Torts - S.K Kapoor.
7.
The Law of Torts - N.H. Jhabvala
8.
P. S. Atchuthen Pillai Law of Torts - Avtar Singh (Rev.)
9.
Case Book on Tort - Tony Weir.
10.
Street on Torts (Oxford Publishing Co.).
11.
Verma & Kusum (Eds.): Fifty Years of the Supreme Court of India (Indian Law
Institute).
12.
The Landmark Judgments of 1997-1998 - Ashok K. Jain
13.
Supreme Court Yearly Digests - SCYD - Shailendra Malik (Ed.) (Eastern Book
Co.).
14.
Cases and Materials on Law of Torts - Faculty of Law, Delhi University, Delhi.
15.
Law Q. & A. (First Semester) - Universal Law Publishing Co. Pvt. Ltd.
16.
Question Papers referred - Delhi and Other Indian Universities; Competitive
Exams like IAS.
Page 1
1
Introduction
Law of torts is a system of laws, which enables a person who has suffered harm or injury
by the acts of another, to claim damages in a civil suit.
Evolution of Law of Torts in England and India
The essential nature of the law of torts is that it is not codified like statute laws. The law
of torts in India is based on English Common law, which is the product of judicial
decisions. In Rajkot Municipal Corpn. v Manjulben Jayantilal Nakum (1997) 9 SCC 552,
the court observed: “In the absence of statutory law in regard to tortious liability in India,
the common law principles evolved in England may be applied in India to the extent of
suitability and applicability to the Indian conditions.”
There is very little legislation in the area of tort in India, and, elsewhere in the world. The
reason is simple- tortuous liability can arise in a number of ways and the number is so
large that it is almost impossible to specify each and every act on the part of the
defendant who may be made liable for damages. In recent times, some parts of the law of
torts have been codified, viz. The Workmen’s Compensation Act, The Employer’s
Liability Act, etc. Also, laws relating to defamation, libel, etc. have been framed.
Unlike England, there is very little tort litigation in India, the reasons being: lack of
consciousness about one’s rights and the spirit of toleration, problem of recognition of the
action by courts, and, awarding of very low damages. Thus, numerous cases of injury in
India like unlawful
Page 2
Law of Trots
detention, injury to or the death of people due to adulterated foodstuffs, liquor, medicine,
etc., loss due to power cut, noise and other pollutions, etc. are put up without bringing an
action in a court of law.
Forms of Action in English Law
Under the English law, there were three different classes of action- Real, Personal and
Mixed.
In real actions, the plaintiff claimed right to recover lands, tenements and hereditaments.
In personal actions, the plaintiff claimed a debt, or sought to recover a chattel, or claimed
damages for injury done to his person or property. Mixed actions partook of the nature of
both.
Personal actions were: Debt, covenant assumpsit, trespass, detinue, replevin and trover.
Detinue was the form of action for the recovery of specific goods wrongfully detained, or
their value, and also damages occasioned by their detention. Replevin was the action to
recover specific goods which had either been wrongfully distained from the plaintiff or
had been wrongfully taken out of his possession.
An action of trover was originally the remedy to recover damages against the person who
had found goods and refused to deliver them up on demand to the plaintiff. In course of
time, it became the form of action where the plaintiff sought to recover damages from the
defendant who had converted the plaintiff’s goods to his own use and came to be known
as an action of conversion.
Purpose/Function of the Law of Torts1
The law of torts exists for the purpose of preventing men from hurting one another,
whether in respect of their property, their persons, their reputations, or anything else
which is theirs [Jayalakshmi Salt Works Pvt. Ltd. v State of Gujarat (1994) 4 SCC 1],
The fundamental principle of this branch of the law is alterum non leadere- to hurt
nobody by word or deed. An action of tort, therefore,
________________________
1.
“It is the task of the law of tort to determine when the law will and will not grant
redress for damage suffered." Discuss.
[I.A.S.-2003]
"Tort is concerned with the allocation on prevention of losses which are bound to occur
in society. Discuss." [I.A. S.-2011]
Page 3
Introduction: Definition Nature & Scope
is usually a claim for pecuniary compensation in respect of damage suffered as the result
of the invasion of a legally protected interest. However, the law of tort fails to provide
adequately for the injury other than physical, done maliciously or carelessly.
In Rajkot Municipal Corpn. v Manjulben Jayantilal Nakum (1997) 9 SCC 552, the apex
court observed: “The law of tort prevents hurting one another. All torts consist of
violation of a right in the plaintiff. Tort law, therefore, is primarily evolved to
compensate the injured by compelling the wrongdoer to pay for the damage done. Since
distributive losses are an inevitable by-product of modern living in allocating the risk, the
law of tort makes less and less allowance to punishment, admonition and deterrence
found in criminal law. The purpose of the law of tort is to adjust these losses and offer
compensation for injuries by one person as a result of another’s conduct.
However, the law could not attempt to compensate all losses. Such an aim would not only
be over ambitious but might conflict with basic notions of social policy. Society has no
interest in mere shifting of loss between individuals for its own sake. The loss, by
hypothesis, may’ve already occurred, and whatever benefit might be derived from
repairing, the fortunes of one person is exactly offset by the harm caused through taking
that amount away from another. The economic assets of the community do not increase
and expense is incurred in the process of realization.”
“Security and stability are generally accepted as worthwhile social objects, but there is no
inherent reason for preferring the security and stability of plaintiffs to those of
defendants. Hence, shifting of loss is justified only when there exists special reasons for
requiring the defendant to bear it rather than the plaintiff on whom it happens to have
fallen.” In the present case, the deceased while walking on the footpath of a public road
struck by a roadside tree suddenly falling on him in a still weather condition; the
municipal corporation was held to be not negligent and thus not liable for damages.
Interests Protected by the Law of Torts
(i)
Personal and proprietary interests.
(ii)
Reputation- libel and slander.
(iii)
Interests in economic relations- conspiracy, passing off, deceit, etc.
Page 4
Law of Torts
(iv)
Interests in family relations e.g. extent to which the parents may sue in respect of
injuries to their children.
(v)
Interference with judicial process- malicious prosecution.
(vi)
Miscellaneous interests e.g. right to vote.
Remedies in Tort
Remedies for torts are of two kinds: Judicial and Extra judicial. Judicial remedies are
those which are afforded by the act of law, viz. (1) awarding of damages; (2) granting of
injunction; and (3) restitution of property. Extra-judicial remedies are those which are
available to a party in certain cases of torts by his own acts alone, viz. expulsion of a
trespasser, re-entry on land, re-caption of goods, distress damage feasant, abatement of
nuisance.
In a tort, besides ‘damages’, the court may also grant ‘injunction’ to the plaintiff to
prevent a continuous nuisance. Thus, an injunction may be granted to prevent trespass, or
the continuance of a nuisance, to right of way, to markets; or the infringement of
copyrights and trademarks; or the publication of a libel or the uttering of a slander; or the
disclosure of confidential communications; or the wrongful sale or detention of a chattel;
etc.
‘Specific restitution of property’ is another remedy in tort. When the plaintiff has been
wrongfully dispossessed of his movable and immovable property, the court may order
that the specific property should be restored back to the plaintiff.
Nature and Definition of Tort2
No precise or scientific definition of ‘tort’ has been framed so far. The French word ‘tort’
has been derived from the Latin term ‘Tortum’ which means to twist. Thus it implies a
conduct, which is not lawful, but rather it is twisted, crooked or unlawful. It is equivalent
to the
____________________
2.
What is tort? Discuss the definitions given by various jurists and critically
examine/appreciate the same. [C.L. C-95/99/2001/2005, L.C. II-93/2000/2003] What is
Tort? Discuss the definition of Winfield and point out its shortcomings. Can your give a
better definition of Tort?
[L.C.1-95/98/2002/2004]
Page 5
Introduction: Definition Nature & Scope
English term ‘wrong’, the Roman term ‘delict’, and, the Sanskrit word ‘Jimha'.
A tort is a violation of a right of a person/ breach of duty by one person towards another.
For example, violation of a duty not to injure the reputation of someone else results in the
tort of defamation. The first reported case where the court used the word ‘tort’ is: Boulton
v Hardy (1597, Cro. Eliz. 547). In Jayalakshmi Salt Works Pvt. Ltd. v State of Gujarat
(1994) 4 SCC 1, the apex court observed: ‘Tort’ dictionarily means “breach of duty
leading to damage. The same meaning attaches to it in law. In general, tort consists of
some act done without just cause or excuse.
No scientific definition of “tort” has yet emerged so far, because the law of tort is based
on judicial decisions and because of diverse species of wrongs included under it each
having its own peculiar historical background. Above all, the law of tort is still in the
process of development. In Jayalakshmi case, the court observed that the basic
ingredients of torts are injury and damage due to failure to observe duty. The liability in
tort may be “strict liability”, “absolute liability” or “special use bringing with it increased
dangers to others” (Rylands v Fletcher) or “fault liability”. Such liability gives rise to
action in torts. Since duty is the primary yardstick to determine the tortious liability its
ambit keeps on widening on the touchstone of fairness, practicality of the situation, etc.”
Some of the definitions of ‘tort’ are:
Sec. 2(m), The Limitation Act, 1963- “Tort means a civil wrong which is not exclusively
a breach of contract or breach or trust.”
Salmond- “It is a civil wrong for which the remedy is a common law action for
unliquidated damages and which is not exclusively the breach of contract or the breach of
a trust or other merely equitable obligation.”
Fraser- “It is an infringement of a right in rem of a private individual giving a right of
compensation at the suit of the injured party.”
Pollock- “Every tort is an act or omission (not being merely the breach of a duty arising
out of a personal relation, or undertaken by contract) which is related to harm (whether
Page 6
Law of Torts
there be measurable actual damage or not), suffered by a determinate person.” Thus, it
may be an act in itself contrary to law, or an omission of specific legal duty, which causes
harm not intended by a person so acting or omitting.
Winfield- “Tortious liability arises from the breach of a duty primarily fixed by the law:
this duty is towards persons generally and its breach is redressible by an action for
unliquidated damages.”
Lord Denning- “The province of tort is to allocate responsibility for injurious conduct.”
Keeton & Keeton- “Tort law is a body of law concerned with granting or denying claims
of individuals or impersonal legal entities against each other for award of damages or
other forms of legal relief.”
Analysis of Winfield's Definition3
The definition given by Winfield deserves special mention as it has more substance
compared to those of other authors. However, it has some shortcomings, viz.
1.
The definition cannot be accepted as entirely accurate. In framing this definition,
Winfield was not seeking to indicate what conduct is and what is not sufficient to involve
a person in tortuous liability, but merely to distinguish tort from certain other branches of
law. Thus, the definition doesn’t mention various elements the presence of which could
be considered to be a tort. The definition explains the nature of “tort” by distinguishing it
from other wrongs like contract or breach of trust.
2.
The phrase “duty towards persons generally” is rather vague. It is hardly adequate
to include duties arising from special relationships like carrier and passenger, or doctor
and patient, and to exclude duties between trustee and beneficiary, or guardian and ward,
which fall outside this branch of law (i.e. torts).
_________________
3.
Critically examine the concept of ‘Tortious liability’ as defined by Winfield.
[D.U.-2007/2009] [C.L.C.-97/2002: L.C.I-97/98]
Page 7
Introduction: Definition Nature & Scope
3.
It is also not correct to speak of the action for unliquidated damages as the
peculiar and distinctive remedy for a tort or breach of duty fixed by the law and not by
contract, because such damages may be claimed for a breach of trust. The definition also
lacks other remedies viz. self-help, injunction, and, actions for specific restitution of
property.
4.
The liability is said to arise from the breach of a duty i.e. a duty of the person
liable. This may be true of liability in general at an earlier stage of development of tort
law, but is not applicable or appropriate to an important category of liability at the present
day, viz. vicarious liability of a master for his servant’s tort. In such cases, even though a
person has not committed a breach of duty himself, he is held liable. The master’s
liability is in reality that of an insurer, against his servant’s wrong-doing and it will be
totally unnecessary to describe it as proceeding from the breach of a duty to the person
claiming damages from him.
The definition by Winfield, however, has the merit of comparative brevity and contains
elements which deserve continuing emphasis. Thus, the ambiguity of tortuous liability
serves to keep it distinct from the contractual liability where the duty is towards specific
persons. Likewise, an action for unliquidated damages is a litmus test of tortuous liability
since the award of damages is under the court’s discretion.
We may define tort as a civil wrong which is redressible by an action for unliquidated
damages, and which is other that a mere breach of contract or breach of trust.4
1.
Tort is a civil wrong
In the case of a civil wrong, the injured party (Plaintiff) institutes civil proceedings
against the wrongdoer (defendant), and the main remedy is damages or compensation. In
the case of a criminal wrong, the criminal proceedings against the accused are brought by
the State, and the victim is not compensated but the wrongdoer is punished.
_________________
4.
Although a tort is a civil injury, not all civil injuries are torts, for no civil injury is
to be classed as a tort unless the appropriate remedy for it is an action for unliquidated
damages. Comment and discuss the elements of tort.
[C.L.C-93/94]
Page 8
Law of Torts
2.
Tort is other than a mere breach of contract or breach of trust
A tort is a civil wrong. However, every civil wrong is not a tort. It will have to be found
out that the civil wrong is a tort and not breach of contract or breach of trust. Thus, if a
person agrees to purchase a radio set and thereafter does not fulfil his obligation the
wrong will be a mere breach of contract.
3.
Tort is redressible by an action for unliquidated damages
Damages is the most important remedy for a tort. The term unliquidated means
something which is not previously determined or fixed but left to the discretion of the
court. In breach of contract, the damages are liquidated in the sense that they are either
embodied in the contract itself or they can be ascertained by applying some prescribed
method.
Besides damages, the court may also grant injunction to the plaintiff to prevent a
continuous nuisance.
According to S.P. Singh, “Tortious liability arises from the breach of a duty primarily
fixed by law which results in an infringement of private legal right of another and for
which civil action for unliquidated damages, injunction, specific restitution of property or
even self-help, as the case may be, can be maintained.”
Foundation of Tortious Liability: Law of Tort or Law of Torts?5
An important question arises when one considers the nature of the law of torts: 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 activities and
leaving all the residue outside the sphere of legal responsibility?
_____________________________
5.
‘In tort the plaintiff wins his case only when he proves as to what particular tort
the defendant has committed against him”. Examine. [I.A.S.-97/2006] “Law of tort is
based upon 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”. Examine.
[I.A.S.-95]
Which one of the following two expressions is correct and why? ‘Law of Torts’ or ‘Law
of Tort’.
[I.A.S.-2005]
'Torts are infinitely various, not limited or confined’ Pratt, C.J. in Chapman v Pickers
(1762) 2 Wills 145 (146). Discuss.
Page 9
Introduction: Definition Nature & Scope
According to Winfield, there are two theories with regard to the basic principle of
liability in the law of tort or torts: (1) All injuries done by one person to another are torts,
unless there is some justification recognised by law. (2) There are a definite number of
torts outside which liability in tort does not exist.
According to the first theory, if I injure my neighbour, he can sue me in tort, whether the
wrong happens to have a particular name like assault, battery, deceit or slander, and I will
be liable if I cannot prove lawful justification. This leads to the wider principle that “all
unjustifiable harms are tortious”. This enables the courts to create new torts and make
defendants liable irrespective of any defect in the pleading of the plaintiffs. This theory
resembles the moral saying, “my duty is to hurt nobody by word or deed”. It is in
consonance with the principle, ubi jus ibi remedium (where there is a right there is a
remedy). In Skinner v Shaw (1893) 1 Ch. 413 (422), the court observed: “At common
law, there was a cause of action whenever one person causes damage to another willfully
and intentionally, without just cause or excuse.”
Winfield and Pollock support the first theory. Winfield is of the view that it is ‘law of
tort’. The fact that new torts are recognised from time to time supports this theory. For
instance, negligence became a new specific tort only by the nineteenth century A.D.
Similarly, the rule of strict liability was laid down in Rylands v Fletcher (1868) LR 3 HL
330, the rule of absolute liability in relation to hazardous enterprises was laid down in
M.C. Mehta case (1987). Indian courts endorse this theory. Tort of intimidation was
recognized in Rookes v Barnard (1964).
According to the second theory, the ‘law of torts’ consists of a neat/clear set of pigeonholes each containing a labelled/specific tort like assault, battery, false imprisonment,
slander, etc. If the defendant’s wrong will not fit any of these pigeon-holes he has
committed no tort. In other words, the plaintiff wins his case only when he proves as to
what particular tort the defendant has committed against him [Allen v Flood (1898) A.C.
1]. Thus, there is no general or basic principle of liability, but there are specific rules.
The second theory is supported by Salmond. He said: “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. Whether I am prosecuted for an alleged offence or sued for
an
Page 10
Law of Torts
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.” His book is called the ‘Law
of Torts.’ Jenks and Glanville Williams supported his theory; they, however, said that
‘new’ pigeon-holes i.e. torts can be added, by rationalizing that new torts cannot come
into being unless the courts regard them as substantially similar to torts which they have
already recognized.
Salmond supported his theory by pointing out that in all cases of damnum sine injuria
parties were not able to get damages although they had suffered substantial losses. To this
objection, Winfield gives the answer that when it is said that all unjustifiable harms are
tortious, it does not follow that all harms are tortious; a person will recover nothing if he
alleges a specific tort and fails to prove some essential ingredients in it, viz. if he sues for
the tort of negligence and cannot prove a duty to take care on the defendant’s part.
Conclusions: Each theory bears some truth. If we try to see the position existing at any
particular point of time we take into account only those torts which have been created
until that time; from that narrow and practical point of view Salmond’s theory is correct.
If, on the other hand, we observe from a broader point of view and look to the present,
past and future, Winfield’s theory is correct. Because whenever the court finds that the
harm caused is unjustifiable they consider it a tort, and provide compensation for the
same even though previously there had been no ‘pigeon-hole’ for the same.
A person sustaining a loss does not of necessity have to find a label to describe a tort in
order to obtain compensation. Many instances did appear where a plaintiff put forward a
new claim such as for mental pain followed by nervous shock and was awarded damages.
In fact, ever since the famous judgment in Ashby v White, it has been clearly established
that mere novelty will not prevent a person from suing in court. The court said: “If man
will multiply injuries, action must be multiplied too: for every man who is injured ought
to have recompense.”
The law of torts has in the main been developed by the courts proceeding from the simple
problem of primitive society to those of our present complex civilization. Decisions such
as Donoghue v Stevenson (1932) AC 562, show that the law of tort is steadily expanding
and the
Page 11
Introduction: Definition Nature & Scope
idea of its being cribbed, cabined and confined in a set of pigeon-holes is untenable.
However, Winfield was inclined to hold that there was some fundamental basic rule of
liability in the growing modern law of torts.
In Jayalakshmi Salt Works Pvt. Ltd. v State of Gujarat (1994) 4 SCC 1, the apex court
observed: Truly speaking entire law of torts is founded and structured on morality that no
one has a right to injure or harm others intentionally or even innocently. Therefore, it
would be primitive to class strictly or close finally the ever-expanding and growing
horizon of tortious liability. Even for social development, orderly growth of the society
and cultural refineness, the liberal approach to tortious liability by courts is more
conducive.
Comparison of Tort with Other Branches of Law
The nature of a tort can be understood by distinguishing (1) Tort and Crime, (2) Tort and
duty in other civil cases, viz. a Contract, a Trust and a Quasi-Contract. Unlike torts, all
other civil wrongs are governed by statutes.6
(a) Distinction Between Tort and Crime7
TORT
CRIME
1.
It is a private wrong i.e. an
infringement of the private or civil right of
an individual. It is comparatively less
serious and labelled as civil wrong. For
example, obstruction outside a particular
house is a tort.
1. It is a public wrong i.e. a wrong against
the public at large or wrong against the
State, even though the victim is an
individual. It is a more serious wrong, for
example, an obstruction in the middle of an
public road is a crime.
2.
Law of torts is uncodified, however, 2.
Law of crimes is codified (e.g.
there is limitation period for filing of suits. Indian Penal Code, Criminal Procedure
Code) and there is no bar of limitation of
prosecution in crime.
___________________________
6.
“All torts are civil injuries, but all civil injuries are not torts.” Explain the above
statement.
[I.A.S.-2004]
7.
Distinguish between Tort and Crime. [D.U.-2007/2009] [C.L.C.-97/2001, L.C.I2003] Distinguish between tortious liability and criminal liability. [I.A.S.-2007]
Page 12
Law of Torts
3.
The rules applicable in a case of tort
are generally different from those in the
case of crime. For example, in the case of
tortuous liability for the wrong of
defamation, truth is in itself a defence.
3.
In an action for the offence of
defamation, the defence of truth can be
taken if the publication was made for
public good.
4.
In tort, intention of the wrongdoer
is not crucial in all cases (e.g. negligence).
Further, a ‘strict’ liability makes the
defendant liable for accidental harms
caused without any intention and
negligence on his part. In other words,
sometimes the law recognizes ‘no fault'
liability.
4.
In a crime, intention of the
wrongdoer is usually crucial in determining
his liability. An ‘accidental’ crime entails
lesser or no punishment. Motive in crime is
not so crucial.
5.
The suit has to be filed by the
injured party as plaintiff and by none else.
Parties may enter into a compromise and
the suit may be withdrawn.
5.
The criminal proceedings are not
brought by the injured party but by the
State. Except in certain exceptional cases,
the law does not permit a settlement in
criminal cases.
6.
Damages or compensation to the
injured party to make good the loss
suffered by him, is the most common
remedy of a tort.
6.
The wrongdoer is punished so as to
deter him and other potential offenders
from committing wrongs. In certain
exceptional cases e.g. Sec. 357, Cr.P.C.,
provision for compensation also provided
for.
7.
Detention, conversion, wrongful 7.
Dacoity, murder, forgery, etc. are
dismissal, etc. are purely civil wrongs i.e. purely criminal wrongs i.e. crimes.
torts.
Page 13
Introduction: Definition Nature & Scope
Similarities
1.
In both, there is violation of rights in rem, the rights and duties are fixed by law
(irrespective of the consent of the parties). Injunction may be granted in both.
2.
There are various wrongs, which find their place both under criminal law and law
of torts. Examples are assault, defamation, negligence, nuisance and conspiracy. In such
cases, for the purpose of civil liability, the rules of law of torts will be applicable and for
the purpose of criminal liability the rules of criminal law will apply.
It is possible that the same act done by a person may result in two wrongs, a crime as well
as a tort, at the same time. The civil and criminal remedies in such a case are not
alternative but they are concurrent. For instance, if Z digs a ditch on public road causing
inconvenience to public, Z has committed an offence of public nuisance. If Y, a passerby,
falls into that ditch and thereby gets injured, Z’s act also becomes a tort of private
nuisance. Z will be punished under criminal law and also be liable to compensate Y under
law of torts [Campbell v Padigngton Corpn. (1911) 1 K.B 869].
(b)
Distinction Between Tort and Contract8
TORT
BREACH OF CONTRACT
1. In tort, the duties are primarily fixed by 1. In a contract, the duties are fixed by the
the law and a breach of these duties parties themselves, the breach of which is a
constitute a tort.
breach of contract.
2.
A tort is violation of a right in rem
i.e. of a right vested in some determinate
person and available against the world at
large. A’s duty not to defame is not
towards X or Y or Z only. Whoever is
defamed by A will be entitled to bring an
action against him. A third party can sue
for tort even though there was no contract
between the wrongdoer and the person
injured.
2. A breach of contract is the violation of a
right in personam i.e. against some
determinate person. In other words, the
duty is based on the privity of contract and
each party owes duty only to the other
contracting party. Thus, a stranger to
contract cannot sue.
____________________________
8.
Distinguish between Tort and Breach of Contract.
[D. U. -2007/2009] [L. C.I-93/94/95/99/2000/2005]
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Law of Torts
3.
In a tort, the obligation arises 3.
In a contract, the obligation is
independently of any consent
founded on the consent of the parties.
i.e. a tort is inflicted against the will and
without the consent of the other party.
4.
In a tort, motive may be taken into 4.
In a breach of contract, the
account, while deciding a case. If the defaulting party is bound to incur liability
motive was found and a wrong had been irrespective of the motive or intention.
done to avoid a greater evil, the defaulter
might escape the liability. Intention is
sometimes taken into consideration.
5.
In a tort the damages awarded
unliquidated i.e. not previously fixed but
decided by the courts. Generally the parties
are not known to each other until the tort is
committed and moreover it is difficult to
visualize beforehand the quantum of loss in
tort.
5.
In a breach of contract, the plaintiff
is awarded the amount of damages which is
either already settled between the parties
i.e. liquidated damages, or the actual
damages which can be determined from the
relevant facts.
6.
In a tort, limitation begins from the 6.
In contract, limitation commences
date when the damage is suffered.
when the breach of obligations takes place.
Similarities
1.
In both, there is an infringement of private rights, and action is taken by the
person injured. Damages (Compensation) is the main remedy in both.
2.
Sometimes the same wrong is both a breach of contract and a tort. In such cases,
the injured party can claim damages under either of the branches of law.
Page 15
Introduction: Definition Nature & Scope
Damages in Tort and Contract9
Damages is the most important remedy for a tort as well as contract. Damages are the
pecuniary compensation which the law awards to a person for the injury he has sustained
by the wrongful act of another. The general rule is that in fixing the sum to be given as
damages the court should as nearly as possible get at that sum of money which will put
the aggrieved party in the same position as he would have been in, if he had not sustained
the wrong for which he is getting the compensation. The basic principle for the measure
of damages in tort as well as in contract is same, viz. that there should be restitutio in
integram (restoration to the previous posi-tion). However, there are certain differences
also which are discussed below:
(i)
In a tort, the damages are ‘unliquidated’ which means something, which is not
previously determined or fixed but left to the discretion of the court. In breach of
contract, the damages are ‘liquidated’ in the sense that they are either embodied in the
contract itself or they can be ascertained by applying some prescribed method.
(ii)
Intention is an essential element in tort in assessing damages, but not in a breach
of contract.
(iii)
In contract damages are only a compensation. In tort to property they are the
same. Where an absolute right is infringed, the plaintiff is awarded nominal damages.
Where the injury is to the person or feelings and the facts disclose fraud, malice or insult, exemplary damages are given; there is no such distinction as nominal or exemplary
damages in contract except in an action for breach of promise of marriage.
(iv)
In tort the pecuniary condition of the wrong-doer is often taken into account, not
so in contract.
(v)
The rule as to remoteness of damage is not the same in actions of tort and of
contract. In tort damages are given for consequences of which the defendant had no
notice (Polemis case). In the case of breach of contract the rules in Hadley v Baxendale
apply.
______________________
9.
What are liquidated damages and when are they awarded?
[I. A. S. -2006]
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Law of Torts
(vi)
In contract it is the duty of the plaintiff to take measures to reduce the damages if
there is breach (mitigation of damages). A tort consists in the defendant’s failing to do an
act which he is bound to do or in doing one which he ought not to do.
(c)
Tort v Bailment
Bailment is a specific contract in which the duty arises from a relation created by the
parties i.e. between the bailor (who delivers the goods) and bailee (to whom goods are
delivered for hire, pawn or pledge, etc.). Thus, the bailee’s liability is not tortuous.
However, if the bailor’s claim is not founded upon the contract but upon a breach by the
bailee of one of the common law duties, then the liability is tortuous.
(d)
Tort v Breach of Trust
Trust is a matter of confidence, and not a matter of contract or tort; it is merely an
equitable wrong. In the case of a ‘breach of trust’ by the trustee, the beneficiary can claim
such compensation which depends upon the loss that the trust property has suffered. The
amount of damages being ascertainable; the damages in the case of breach of trust are
liquidated. On the other hand, damages in a tort are unliquidated. In breach of trust,
compensation is not termed as damages.
The law of torts has its origin as part of common law whereas breach of trust could be
redressed in the Court of Chancery.
(e)
Tort v Quasi-Contract
When a person gains some advantage or benefit to which some other person was entitled
to or by such advantage another person suffers an undue loss, the law may compel the
former to compensate the latter in respect of advantage so gained, even though in fact
there is no such contract. For example, A, a tradesman, leaves goods at B’s house by
mistake. B treats the goods as his own. He is bound to pay for them.
In both tort and a quasi-contract, the duty is imposed by the law. The main difference
between the two is that the law of quasi-contract gives a right only with respect to money
and generally it is a liquidated sum of money. Law of torts, apart from a right to damages,
grants other remedies also and a claim for damages under it is always for an
Page 17
Introduction: Definition Nature & Scope
unliquidated sum of money. Further, in a quasi-contract the duty is always towards a
particular person, whereas under the law of torts the duty is towards persons generally.
In certain cases, when a tort has been committed, the injured party has a choice of not
bringing an action for damages in tort, but of suing the wrongdoer in quasi-contract to
recover the value of the benefit obtained by the wrongdoer. When the plaintiff elects to
sue in quasi-contract instead of tort, he is said to have ‘waived the tort’. The torts which
can be waived are those of conversion, trespass to land or goods, deceit and action for
extorting money by threats. In certain torts, like defamation and assault, the doctrine of
waiver cannot be applied.
Discharge of Tort
Where there is a vested right of action for a tort, such a right can be discharged in the
following ways: (i) Death of either party; (ii) Waiver;
(iii)
Accord and satisfaction; (iv) Release; (v) Acquiescence; (vi) Judgement
recovered; and (vii) Statute of Limitation.
Waiver of Tort
In certain cases, when a tort has been committed, the injured party has a choice of not
bringing an action for damages in tort, but of suing the wrongdoer in ‘quasi-contract’ to
recover the value of the benefit obtained by the wrongdoer. When the plaintiff elects to
sue in quasi-contract instead of tort, he is said to have ‘waived the tort’. The torts, which
can be waived, are those of conversion, trespass to land or goods, deceit and action for
extorting money by threats. In certain torts, like defamation and assault, the doctrine of
waiver cannot be applied.
Disability to Sue and To be Sued in India
Who Cannot Sue
Ordinarily, all persons are entitled to sue in tort. But there are certain exceptions to this
rule viz. a bankrupt, a corporation, a child in the womb. A convict in India, unlike
England, may sue. A bankrupt may sue for personal wrongs. In India, unlike England, an
action in tort by one spouse against the other is maintainable. A Corporation can sue for a
libel affecting its property or business. An infant can sue for a tort.
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Law of Torts
Who Cannot be Sued
There are certain classes of persons who cannot be sued viz. foreign sovereigns and
ambassadors, public officials, the State. However, the public officials for their private
acts can be sued. Similarly, the State can be sued for non-sovereign functions. An infant
is, in general, liable for his torts in the same manner as an adult; however, where
intention, knowledge, or malice is an essential ingredient of liability, infancy can be a
defence. Similarly, a lunatic or drunkard can be made liable. A married woman may sue
and be sued alone. In India, a husband is not liable for the torts of his wife.
General Conditions of Liability for a Tort (Constituents of Tort)10
In general, a tort consists in some act done by the defendant whereby he has without just
cause or excuse caused some form of harm to the plaintiff.
In order to constitute a tort, the following conditions are to be satisfied:
(1)
There must be a wrongful act or omission on the part of the defendant.
(2)
Such act or omission should result in legal damage (injuria) to the plaintiff.
(3)
Some legal remedy in the form of an action for damages must be available.
(1)
Act or Omission
In order to make a person liable for a tort he must have done some legal wrong i.e.
violates the legal rights of another person e.g. committing the act of trespass or defaming
a person. An act is wrongful if it invades any of the three rights of a person viz. good
reputation, property, and, his right of bodily safety and freedom. The wrongful act, if
merely a moral/religious or social wrong, will not amount to a tort e.g. failing to help a
starving man or saving a drowning child.
______________________________
10.
“Before a person can recover for loss which he suffered from another person's act,
it must be shown that his case falls within the class of actionable wrongs." Discuss
[I.A.S.-2011]
Page 19
Introduction: Definition Nature & Scope
The wrongful act can be committed by a person either negligently, or intentionally or
even by committing a breach of strict duty. It also includes omission to perform a legal
duty. Thus, in Municipal Corporation of Delhi v Subhagwanti (AIR 1966 SC 1750), it
was held that it was the duty of the Corporation to keep the clock tower in proper repairs
and if falling of the same results in the death of some persons, the Corporation would be
liable for its omission.
(2)
Legal Damage11
The test to determine the liability under the law of torts is to see whether any legal right
of the plaintiff has been violated or not. If a legal right is violated, then it does not matter
that the plaintiff has suffered any loss or not. “The foundation of every action in tort ... is
an act which is wrongful, and which may be qualified legally as an injury” [Rogers v
Rajendra Dutt (1860) 8 M.I.R. 103],
The term ‘injuria’ refers to infringement of a legal right and the term ‘damnum’ means
substantial harm, loss or damage. The term ‘sine’ (or ‘absque’) means without.
Injuria sine damnum12
This maxim means violation of a legal right without causing any harm, loss or damage to
the plaintiff. Thus, it is the behaviour, which is actionable as a tort. It is always actionable
as legal wrongs entail a remedy. Every injury imports damage. Infringement of private
right is actionable per se. No actual loss or damage is required to be proved by the
plaintiff.
Torts are of two kinds - namely, those, which are actionable per se (i.e. the law
conclusively presumes damages as in case of violation of absolute rights), and those,
which are actionable only on proof of actual damage resulting from them (as in case of
qualified rights). Thus, the act of trespassing is actionable even though the plaintiff has
not suffered any harm. Similarly, a libel is actionable per se, while
__________________
11.
“Violation of legal rights, and not damage, is necessary to an action for
unliquidated damages.” Discuss.
12.
Write a short note on injuria sine damno.
[D.U. -2007/2008] [L.C.I-93/94/95/2000/2003; L. C.II-93/94/2001/2005]
Page 20
Law of Torts
slander (i.e. oral as opposed to written defamation) is not actionable without proof of
actual damage.
The following cases explain the maxim:
Leading Case: ASHBY v WHITE (1703) 2 Lord Raym 938
In this case, the plaintiff succeeded in his action, even though the defendant’s act did not
cause any damage. The plaintiff was a qualified voter at a parliamentary election, but the
defendant, a returning officer, wrongfully refused to take plaintiff’s vote. No loss was
suffered by such refusal because the candidate for whom he wanted to vote won in spite
of that. The defendant was held liable.
The following observations made by the court aptly clarify the principle of the maxim:
“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.
Every injury imports a damage, though it does not cost a party one farthing (or paisa) (the
damage is not merely pecuniary), the damage being that the person 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 of them yet he shall have an action. A man shall have action
against another for riding over his ground, though it does him no damage, for it is an
invasion of his property, and the other has no right to come there.”]
However, where the returning officer honestly refused to accept the vote of a genuine
voter, it was held that he could not be sued in tort [Tozer v Child (1857) 7 El & B 377].
In Municipal Board of Agra v Asharfi Lal (AIR 1921 All. 202), the court followed the
ruling in Ashby v White. It was observed that if any duly qualified citizen or person
Page 21
Introduction: Definition Nature & Scope
entitled to be on the electoral roll of any constituency is omitted from such roll so as to be
deprived of his right to vote, he has suffered a legal wrong and has a legal remedy.
In Bhim Singh v State of J & K (AIR 1986 SC 494), the petitioner, an M.L.A. of J & K
Assembly, was wrongfully detained by the police. Thus, he was deprived of his
fundamental right to personal liberty and constitutional right to attend the Assembly
session. The court awarded exemplary damages of Rs. 50,000 by way of consequential
relief.
It has been held that an action will lie against a banker, having sufficient funds in his
hands belonging to the customer, for refusing to honour his cheque, although the
customer has not thereby sustained any actual loss or damage [Marzetti v Williams Bank
(1830) 1 B & Ad 415]. Sometimes, even trivial matters have been taken account of by the
courts on the ground that “to enforce one’s rights when they are violated is never a legal
wrong, and may often be a moral duty.” In this case, the plaintiff, a guest at the
defendant’s hotel, was fed up with the food served at the hotel, and so he purchased some
raw food from outside and gave it to the hotel chef to be cooked and brought to his room.
This was done, but the food was accompanied by a bill, which he refused to pay. The
following morning, he was publicly informed at the breakfast table that he would not be
served. The plaintiff sued for wrongful refusal of service, including damages for
humiliation and injury to his feelings. The court held in favour of the plaintiff, on the
ground that his legal right had been infringed [Morningstar v Fafayette Hotel Co. 211
N.Y. 465].
In cases of injuria sine damno the loss suffered by the plaintiff may be relevant only as
regards the measure of damages. Generally nominal damages are awarded by the court if
no actual damage is proved. If, however, the court feels that the violation of a legal right
is owing to. mischievous and malicious act, as had happened in Bhim Singh’s case, the
court may grant even exemplary damages.
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Law of Torts
Damnum sine injuria13
It means that the plaintiff may suffer actual or substantial loss without any violation or
infringement of legal right and therefore no action lies in such cases. This is generally so
when the exercise of legal right by one results in consequential harm to the other, even
though the injury is intentional. It is never actionable, as moral or social wrongs have no
remedy. Similarly, hurt to religious feelings is not an actionable tort.
The reason underlying this maxim is simple, viz. that it would be impossible to carry on
the common affairs of life without doing various things which are more or less likely to
cause loss or inconvenience to others, in view of the conflict of interest. Every possible
form of harm or damage is not recognized by the law. “You must have injury as well as
damage”. There are many forms of harm of which the law takes no account:
(i)
Loss inflicted on individual traders by bona fide (free and fair) competition in
trade.
(ii)
Where the damage is done by a man acting under necessity to prevent a greater
evil.
(iii)
Damage caused by defamatory statements made on a privileged occasion.
(iv)
Where the harm is too trivial, too indefinite or too difficult of proof.
(v)
Where the harm done may be of such a nature that a criminal prosecution is more
appropriate e.g. in case of public nuisance or causing of death.
(vi)
There is no right of action for damages for contempt of court.
__________________
13.
‘Every injury imparts damage, but every damage is not injury’. Discuss the
statement in the light of decided cases.
‘Legal damage is neither identical with actual damage, nor is it necessarily pecuniary.’
Discuss.
Write a short note on Damnum sine injuria.
[D. U. -2007/2008] [L. C.I-93/94/95/000/2006; L. C. II-93/94/98/2001/2003]
P, a priest, suffered substantial monetary loss on account of an explanation of ‘milkmiracle’ given by R, a rival of P. P files a suit for damages against R. Examine whether
tortuous liability arises in this case. [C.L.C.-95]
[Note: R is not liable as R has not infringed any legal right of P.]
Page 23
Introduction: Definition Nature & Scope
The following cases explain the maxim:
In Gloucester Grammar School case (1410) Y.B. Hill, 11 Hen, the defendant, a
schoolmaster, set up a rival school to that of the plaintiffs. The boys from the plaintiff’s
school flocked to the defendant’s. Because of the competition the plaintiffs had to reduce
their fees. Held that the plaintiffs had no remedy for the loss thus suffered by them.
Hankford J. said: “Damnum may be absque injuria (without infringement of a right) as if
I have a mill and my neighbour builds another mill whereby the profit of my mill is
diminished, I shall have no action against him, although I am damaged ... but if a miller
disturbs the water from going to my mill, or does any nuisance of the like sort, I shall
have such action as the law gives.”
Thus, it emerges that one can compete with one’s rival without causing any hindrance to
him.14 In Mogul Steamship Co. v McGregor Gow & Co. (1892) A.C. 25, a number of
Steamship companies combined together and drove the plaintiff’s company out of trade
by offering reduced freight. Held that the plaintiff had no cause of action as the
defendants had only used lawful means to protect and extend their trade and increase
their profits. In India, however, such trade combines could come under the purview of the
Monopolies and Restrictive Trade Practices.
The case of Chesmore v Richards (1859) 7 HCL 349, shows that if a man has the
misfortune to lose his spring by his neighbour digging a well, he must dig his own well
deeper. In this case, the plaintiff, a mill owner, was using water for over 60 years from a
stream which was chiefly supplied by the percolating underground water. The defendant
dug a well on their land deep enough to stop the larger volume of water going to
plaintiff’s stream. For this the defendant was held not liable.15
_______________________________
14.
The plaintiff was running a computer consultancy business. Another competitor in
the same business opened an office in the vicinity of the plaintiffs office. Consequently
the plaintiff suffered a sharp fall in his income and sued the competitor for the damages.
Will the plaintiff succeed? Decide giving reasons.
[D.U.-2011]
15.
A, the owner of a mill, was getting water for his mill from a stream which was
naturally flowing near the mill of A. B, the owner of another mill, dug an extensive well
which hindered the flow of water to A’s mill. Is B liable for a tort? Give reasons to
support your answer. [I.A.S.-2006]
Page 24
Law of Torts
Similarly, in Acton w Blundell16 (1848) 12 M&W 324, the defendants by digging a coal
pit intercepted the water which affected the plaintiff’s well less than 20 years old, at a
distance of about one mile. Held, they were not liable. It was observed: “The person who
owns the surface may dug therein and apply all that is there found to his own purposes, at
his free will and pleasure, and that if in the exercise of such rights he intercepts or drains
off the water collected from underground springs in the neighbour’s well, this
inconvenience to his neighbour falls within the description damnum absque injuria which
cannot become the ground of action.”
In P. Seetharamayya v Mahalakshmma (AIR 1958 A.R 103), held that the owner of land
on or near a river has a right to build a fence upon his ground to prevent damage to his
ground by the overflow of river even though as a result of which the over-flowing water
is diverted to the neighbour’s land and causes damage (it is to be noted that if the floodwater has already entered one’s land, the law does not permit him to transfer it upon
another’s land).17 Likewise, in Rouse v Gravel Works Ltd. (1940) 1 K.B. 489, held that
the defendants had a legal right to excavate the gravel on their land, and the accumulation
of water in the excavation and its effect upon the adjoining plaintiff’s land were caused,
not by the direct action of the defendants, but by the natural agencies of rains, percolation
and wind, over which the defendants had no control.
In Dickson v Reuter’s Telegram Co. (1877) 3 C.P.D. 1, the defendants were held not
liable even though their negligence had caused damage to the plaintiff. A sent a telegram
to B for the shipment of certain goods. The telegram co. by a mistake delivered the
telegram to C. C acting on the telegram sent the goods to A who refused to accept the
goods stating that he had ordered the goods not from C but from B. Held that C had no
cause of action against the company for the
___________________
16.
A question based on the same facts. [L.C.II-96]
17.
In order to ward off the flow of flood water into his land from a neighbouring
stream, Rajesh dug up a trench and constructed a bund on his land. As a result of his act,
the water inundated Paresh's land and damaged his crops. What remedy, if any, is
available to Paresh under the Law of Torts? Would your answer be different if Rajesh’s
act was guided by malice towards Paresh?
[D.U.-2009]
Page 25
Introduction: Definition Nature & Scope
company did not owe any duty of care to C and no legal right of C could, therefore, be
said to have been infringed.
In Dhadphale v Gurav (1881) 6 Bom 122, the servants of a Hindu temple had a right to
get the food offered to the idol, but the person who was under an obligation to the idol to
offer food, did not do so. The servants brought a suit against him for damages; it was held
that the defendant was under no legal obligation to supply food to the temple’s servants,
and though his omission to do so might involve a loss to the plaintiffs. There should be a
breach of legal duty, and not a breach of religious duty. In Ushaben Trivedi v
Bhagyalaxmi Chitra Mandir (AIR 1978 Guj 13), a suit was filed against the screening of
the picture “Jai Santoshi Ma” on the ground that certain scenes in the movie hurt the
religious feelings of persons having an interest in Hindu religion and mythology. The
court held that the courts of law have not recognized hurt to religious feelings as a civil
actionable wrong.
In Bradford Corporation (Mayor of) v Pickles18 (1895) A.C. 587, held that even if the
harm to the plaintiff has been caused maliciously no action can lie for the same unless the
plaintiff can prove that he has suffered injury because of an illegal act of the defendant.
In this case, the defendant sank a shaft over his land intentionally and intercepted the
underground water which was flowing to the reservoir of the plaintiffs. Held that the
plaintiffs have no cause of action since the defendant was exercising his lawful right
although the motive was to coerce the plaintiffs to buy his land. The plaintiffs have no
cause unless they can show that they are entitled to the flow of water in question, and that
the defendant has no right to do what he is doing ... Similarly, in Town Area Committee v
Prabhu Dayal (AIR 1975 All. 132) held that if a person constructs a building illegally, the
demolition of such building by the municipal authorities (though motivated by malice)
would not amount to causing “injuria” to the owner of the property.
___________________
18.
A was annoyed with a City Development Authority’s refusal to purchase his land
in connection with the scheme of water supply for the town. In revenge he (A) sank a
shaft on his land. The water which percolated through his land in undefined channels to
the land of C.D.A. on a higher level was consequently discoloured and diminished. The
C.D.A. sues A. How will you decide? [L.C.I-98]
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Law of Torts
(3)
Legal Remedy or Damages
The third and final ingredient for a tort is that there must be a civil action available for
damages, which is the main remedy. Other remedies such as injunction are additional
only.
The maxim Ubi jus ibi remedium means that ‘where there is a right there is a remedy’ or
‘there is no wrong without a remedy’. In Ashby v White, it was observed that “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. If
man will multiply injuries actions must be multiplied too: for every man who is injured
ought to have recompense.”
In a way, law of torts owes its development to this maxim. However, the maxim does not
lay down that there is a legal remedy for every wrong. Thus, wrongs not recognized by
law are not actionable. The maxim should mean: “where there is no legal remedy, there is
no legal wrong” (Justice Stephen).
The maxim ex turpi causa non oritur actio means that an action does not arise from an
immoral or a base cause. Thus, if the damage is in any manner tainted with immorality,
no cause of action can be maintained. Thus, if a person gets a sexual disease through his
paramour (who concealed it), she is not entitled to sue him [Hegarty v Shine (1878) 1
Cox C.C. 145],
FURTHER QUESTIONS
Q.1. Whether an exemption clause in a contract would also exempt a tortuous liability?
Comment.
(a)
A hired a bicycle from B. The written contract contained a clause which read,
“Nothing in this agreement shall render the owner liable for any personal injuries to the
rider of the machine hired.’’ Owing to a defect in the brakes of the cycle, A met with an
accident and got injured. Can A recover damages? Decide while making a distinction
between contractual liability and tortuous liability. [C.L.C. -93; L.C.II-93/94]
Page 27
Introduction: Definition Nature & Scope
Distinguish between tortious liability and contractual liability.
[D.U.-2011] [I.A.S.-2004]
(b) A purchased woollen garments from retailer B which was manufactured by M/s M.
and Sons. A suffered from dermatitis after wearing the garments. A files a suit claiming
damages from B as well as M/s M. and Sons. Decide, giving reasons.
[C.L.C.-95]
A.1. (a) Contractual and Tortious Liability
In many cases, a person voluntarily binds himself by a contract to perform some duty,
which already lies upon him independently of any contract. The breach of such a contract
is also a tort. For example, the right of injured railway passenger to sue the railways
either for breach of contract of safe carriage or for negligence (tort) in carrying him.
Similarly, if a person leave his horse with his neighbour for a week and go out and the
neighbour allows the horse to die of starvation, there is breach of contract in as much as
the bailee has failed to exercise due care, and the bailee has also committed tort of
negligence. In such cases of concurrent liability in tort and contract, the plaintiff can’t
claim the damages twice over but either to sue for breach of contract or for the
commission of tort. A doctor or surgeon is under a concurrent liability in tort and
contract, but not an architect or a solicitor.
According to the definition of tort, it is the violation of a right conferred by law. No
contract between private parties is capable of curtailing or modifying the law, and
therefore, no exemption clause in a contract is capable of exempting a party from tortious
liability [White v John Warrick & Co. (1953) 2 All ER 1021 (CA)]. The case is discussed
hereunder.
Leading Case: WHITE v JOHN WARRICK & CO. LTD.
[(1953) 2 All ER 1021]
In this case, a contract of hire of a carrier tricycle provided that: “Nothing in this
agreement shall render the owners liable for any personal injuries to the riders of the
machine hired.”
The machine was defective and the hirer was thrown off and was injured. The plaintiff
(hirer) brought an action for damages against the defendant company. The defendant
relied on the said clause of contract for their defence.
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Law of Torts
Their Lordships observed that the said accident was due to the negligence and/ or breach
of contract of the owner, their servants or agents, who failed to take any proper care to
ensure that the said tricycle was in proper working condition.
The owners had/owed a duty of care to the servants and they owed a like duty to the hirer
himself. The breach of a duty is a tort which can be established without relying on any
contract at all.
Held, an action for damages for the breach of contract and an action for a tort may arise
from the same set of facts.
The fact that there is a contractual relationship between the parties which may give rise to
an action for breach of contract, does not exclude the co-existence of a right of action
founded on negligence as between the same parties independently of the contract, though
arising out of the relationship in fact brought about by the contract (Donoghue v
Stevenson). The claim for negligence in this case is founded independently in tort and not
on contract.]
Thus, in the case in question, A can recover damages.
In Rajkot Munic. Corpn. v Manjulben J. Nakum (1997) 9 SCC 552, the Supreme Court
observed: “If the claim depends upon proof of the contract, action does not lie in tort. If
the claim arises, from the relationship between the parties, independent of the contract, an
action would lie in tort at the election of the plaintiff, although he might alternatively
have pleaded in contract.”
Thus, where the relationship does not give rise to any duty of care to the plaintiff, no
action in tort can be maintained. For example, where a message is delivered by a
telegraph company by mistake to a person for whom the message was not intended, and
who in consequence suffers damage, no suit will lie, for there is no privity of contract
between the parties, nor is any duty of care cast upon the telegraph company
independently of contract (See Dickson v Reuter’s Telegram Co. case, above).
In Manju Bhatia v New Delhi Munic. Corpn. (1997) 6 SCC 370, a building contract was
entered into by a builder and the allottees. The allottees paid the amount and the building
was constructed. However,
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Introduction: Definition Nature & Scope
as the building was constructed by the builder in violation of municipal regulations, the
Municipal Corporation demolished the flats of top four floor. The allottee-owners of the
demolished flats, having not been informed by the builder about the illegal construction
and not given notice of caveat emptor, suffered loss and therefore they sued the builder
for damages in tort. It was held by the Supreme Court that the builder is liable to pay
damages up to Rs. 60 lakhs including the amount paid by the allottees.
The Supreme Court observed: “In the tort liability arising out of contract, equity steps in
and tort takes over and imposes liability upon the defendant for un-quantified damages
for the breach of the duty owed by the defendant to the plaintiff. Equity steps in and
relieves the hardships of the plaintiff in a common law action for damages and enjoins
upon the defendant to make the damages suffered by the plaintiff on account of the
negligence in the case of the duties or breach of the obligation undertaken or failure to
truthfully inform the warranty of title and other allied circumstances”.
A contract by the bailee exempting himself from liability for negligence is not valid
[Sheikh Mohmd. v The British Indian Steam Navigation Co. (1908) 32 Mad. 95],
(b) When X’s wrongful act results in the breach of a contract which he had entered into
with Y and also the commission of a tort against Z (a stranger to contract), it was thought
that just like Y, Z has also to show privity of contract before he can bring an action for
tort. Winterbottom v Wright was responsible for introduction of this “privity of contract
fallacy” into the law.
However, in Donoghue v Stevenson (1932) A.C. 562, held that the action in tort is
independent of a contract and the rule that the privity of contract is essential for an action
in tort is highly irrelevant and unjust. Thus, a consumer could bring an action against the
manufacturer even though there was no contract between the manufacturer and consumer.
The manufacturer of chattels owes a duty to the ultimate user or consumer. This duty had
its origin in the law of tort and not in the law of contract. Whatever the contract, it was
only between the manufacturer and the retailer.
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Law of Torts
The present position is that the “privity of contract fallacy” has disappeared. The matter
is open: “The absence of a contract between the parties is, but one of the factors to be
considered in determining whether liability in tort exists.”
Thus, where A purchased woollen garments from a retailer B which was manufactured by
M/s M. and Sons, and A suffered dermatitis after wearing the garments, A can claim
damages from M/s M. and Sons (Grant v Australian Knitting Mills Ltd. 1936 A.C. 85). A
cannot claim damages from the retailer B.
Q.2. Distinguish between damnum sine injuria and injuria sine damnum with the help of
decided cases.
[D.U.-2009/2011] [C.L.C.- 95/2004]
Damnum sine injuria and injuria sine damnum are two different principles of law.
Comment briefly.
[I.A.S.-2009]
Do you agree with the view that ‘injuria sine damnum’ is never actionable and 'damnum
sine injuria’ is always actionable? [C.L.C. -94]
A group of transporters joined hands and offered reduced rates of transportation and
lucky draw in order to induce customers to transport goods only through them. In
consequence of this, a company B which was kept out of the combination suffered trade
losses. Company B files a case of damages alleging that by a deliberate act of defendant
it has suffered losses. Decide, giving reasons. [C.L.C. -92]
A.2. Legal Damage
There are two general conditions of tortuous liability, namely
(1)
There must be a wrongful act, and
(2)
This act must result in legal damage (injuria) i.e. there must be a violation of legal
right.
The test to determine the liability under the law of torts is to see whether any legal right
of the plaintiff has been violated or not. If a legal right is violated, then it doesn’t matter
that the plaintiff has suffered any loss/damage or not.
The term ‘injuria’ refers to infringement of a legal right. The term ‘damnum’ means
substantial harm, loss or damage. The term ‘sine’ means without.
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Introduction: Definition Nature & Scope
Distinction Between Injuria sine damnum and Damnum sine injuria
Injuria sine damnum
Damnum sine injuria
1.
It means violation of a legal
right without causing any harm,
loss or damage to the plaintiff.
2.
It is always actionable.
3.
It contemplates legal wrongs where
there is a remedy.
4.
The defendant acts illegally to
infringe legal right of theplaintiff.
1.
It means actual or substantial
damage without infringement
of a legal right.
2.
It is never actionable.
3.
It contemplates moral or social
wrongs without any remedy.
4.
The defendant causes harm to
the plaintiff by acting legally. In
other words, exercise of legal
right by one results in
consequential harm to the other.
For cases relating to these maxims, please see the text.
Second part of the question
It is incorrect to say that ‘injuria sine damno’ is never actionable and ‘damnum sine
injuria’ is always actionable. In fact vice versa is the correct view.
Third part of the question
In Mogul Steamship Co. v McGregor Gow & Co. (1892) A.C. 25, a number of Steamship
companies combined together and drove the plaintiff’s company out of trade by offering
reduced freight. It was held that the plaintiff had no cause of action as the defendants had
only used lawful means to protect and extend their trade and increase their profits.
In the case in question, the group of transporters acted in furtherance of their legal right
in order to induce customers to transport goods only through them. If in consequence of
this, a company B has suffered trade losses, it has no remedy in the law of torts because
there has been no violation of a legal right vested in it.
The essence of the maxim Damnum sine injuria is:
“The mere fact that a man is injured by another’s act gives in itself no cause of action; if
the act is deliberate, the party injured will have no claim in law even though the injury is
intentional, so long as the other party is exercising a legal right.”
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Law of Torts
Q.3. (a) X, who was entitled to be on the electoral roll, was wrongfully omitted from such
roll. The candidate for whom X would have voted was elected. X brings an action against
the election authorities. How will you decide? Will your answer be different if the
candidate for whom X would have voted was not elected or lost by a single vote?
(b) Practice of untouchability in any of its form is illegal in India. X, a customer, was
denied entry into Y’s hotel on the sole ground of his being an untouchable. He went to
Z’s hotel and could enjoy better snacks at much cheaper rates than those at Y’s hotel. X,
however, wants to file a suit against Y for damages for refusing entry into his hotel? Will
X succeed?
A.3.(a) The present problem is based on the maxim ‘Injuria sine damnum’ i.e. violation
of a legal right without causing any harm, loss or damage to the plaintiff.
The election authorities are liable in any case, whether the candidate for whom X would
have voted was elected or not. See Ashby v White.
(b) The case is covered by the maxim ‘injuria sine damnum’. X can claim damages from
Y, because Y has infringed the legal right of X. It does not matter that, in fact, X didn’t
suffered any pecuniary harm.
Q.4. Is Malice/Motive an essential ingredient to constitute tort? Discuss. [L.C. II-94]
Will a bad motive render tortuous, an act giving rise merely to damage without legal
injury?
(a)
S was owner of 300 sq. yds. of land in an approved residential colony. MCD
approved building plan for 2 1/2 storey building. S in violation of sanction, constructed 3
1/2 storey and on the top of it also constructed a 5,000 litre water storage tank. MCD
demolished one storey constructed beyond sanction. S claims damages from MCD
pleading malice. Argue the case for MCD. Decide, giving reasons. Give judicial
precedents. [D.U.-2008]
(b)
X had a piece of land in an approved residential colony. He constructed a
residential house on it, though in conformity with the Building Bye-Laws but without
getting the building
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Introduction: Definition Nature & Scope
plan sanctioned. The building after due show cause notice was demolished. X sues the
MCD claiming damages. He pleaded mala fide against the Commissioner. Argue the case
for and against and then decide, giving reasons.
[C.L.C.-92/95]
A.4. Mental Element in Tortious Liability
Unlike criminal law, where mens rea or guilty mind is an important factor to determine a
crime, in a tort, the state of mind of a person is not so important, and in fact irrelevant,
except in certain cases (because unlike criminal law, the focus in the law of torts is not on
punishing the wrongdoer, but vindicating the rights of the injured person). The term
‘malice’ has been used in two different senses: (a) Malice in law, and,
(b)
Malice in fact.
Malice in Law- In its legal sense, the term ‘malice’ means “a wrongful act done
intentionally without just cause or excuse.” It is an ‘implied malice’ which the law infers
from the circumstances of the case. In Shearer v Shields (1914) A.C. 808, it was observed
that a person who inflicted an injury upon another person in contravention of the law is
not allowed to say that he did so with an innocent mind; he is taken to know the law, and
he must act within the law. He may, therefore, be guilty of malice in law, although, so far
the state of mind is concerned he acts ignorantly and in that sense innocently. Thus,
malice in law does not mean a bad motive or feeling of ill-will; it is not an act dictated by
angry feeling or vindictive motive, as understood in common parlance.
Thus, a wrongful intention is presumed in case of an unlawful act done without just cause
or excuse or for want of reasonable or probable cause (Smt. S. R. Venkataraman v Union
of India AIR 1979 SC 49). A malicious defamatory statement means that the statement is
made without lawful justification.
Malice in Fact- In its narrow and popular sense, the term ‘malice’ means an evil or
improper motive. It is the malice in fact or ‘actual/ express malice’. When a defendant
does a wrongful act with a feeling or spite, vengeance or ill will the act was said to be
done ‘maliciously’. Motive means an ulterior reason for the conduct e.g. motive for theft
may be to buy food for his children or to help a poor man.
As a general rule, malice in the sense of improper motive is entirely irrelevant in the law
of torts. The law in general asks merely
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Law of Torts
what the defendant has done (i.e. the act), not why he did it. A good motive is no
justification for an act otherwise illegal, and a bad motive does not make wrongful an act
otherwise legal.
“Where a man has a right to do an act, it is not possible to make his exercise of such right
actionable by alleging or proving that his motive in the exercise was spite or malice in the
popular sense” (Bowen, J.). 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.”
The case of South Wales Miners’ Federation v Glamorgan Coal Company (1905) A.C.
239, explains that a wrongful act is not converted into a lawful act by a good motive. In
this case, the plaintiffs, the owners of coal mines, brought an action against the
defendants, a miner’s union, for inducing its workmen to make the breach of a contract of
their employment by ordering them to take certain holidays. The act of the defendant was
not actuated by any ill-will but the object was to keep up the price of coal by which the
wages were regulated. The House of Lords held the defendants liable as their act was a
wrongful act. The procurement of a breach of contract, without just cause, is a tort [Quinn
v Leathern (1901) A.C. 495].
The case of Bradford Corporation v Pickles (1895) A.C. 587, explains that a lawful act
does not become unlawful merely because of an evil motive. In this case, the defendant
was held not liable for intentionally intercepting, by means of excavations on his own
land, the underground water that would otherwise have flowed into the adjoining
reservoir of the plaintiffs, although his sole motive in doing so was to force the plaintiffs
to buy his 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 Allen v Flood (1898) A.C. 1, it was emphasized that the motive (good, bad or
indifferent) does not constitute an element of civil wrong. Similarly, it has been held that
a landlord who maliciously serves a valid notice to quit on a tenant, commits no civil
wrong (Chapman v Honig 1963 2 Q.B. 502).
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Introduction: Definition Nature & Scope
LEADING CASE: TOWN AREA COMMITTEE v PRABHU DAYAL (AIR 1975
All 132)
In this case, the defendants (municipal authorities) had demolished the illegally
constructed building of the plaintiff; the municipal commissioner was alleged to be an
enemy of the plaintiff. The court rejecting the plaintiff’s contention observed that merely
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).
Winfield has opined that in such cases of abuse of private rights which injures only a
private individual, it should be declared a civil wrong under the law of torts. And, in
cases of abuse of private rights which directly injures the public in general, they should
be penalized under criminal law. It may be noted that this aspect of the law of torts has
been criticized as unsatisfactory.
Thus, if a person willfully destroys his own corn or sets fire to his house, there is no legal
means to prevent him from doing this act. On the other hand, even a benevolent desire to
protect another’s property will not justify any interference with it. In the Case of Tithes’
Imperilled (Kenny’s Case of Torts, p. 376), the defendant put the plaintiff’s corn (tithes
i.e. a tenth of the harvest) lying in the field into the plaintiff’s own bam (as it was being
eaten by horse). The court observed that it might very well be that the plaintiff intended
to reserve the bam for some other purpose.
LEADING CASE: STATE OF A.P. v GOVARDHANLAL PITTI (AIR 2003 SC 1941)
In this case, the State was a tenant of premises (an old school building) belonging to a
private party. An eviction order was passed against the State and it gave an undertaking
to vacate. However, soon thereafter, it initiated proceedings under the
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Law of Torts
Land Acquisition Act, 1894 for the purpose of acquisition of premises. It was held that
the Government’s action cannot be said to be vitiated by malice in law. The eviction
order and undertaking to vacate provided just, reasonable and proximate cause to resort to
the acquisition proceedings. There existed genuine public purpose of fulfilling the
educational needs of the children in that part of the city.
The court observed: The legal meaning of malice is “ill will or spite towards a party and
any indirect or improper motive in taking an action”. This is sometimes described as
“malice in fact”. “Legal malice” or “malice in law” means “something done without
lawful excuse.” In other words, “it is an act done wrongfully or willfully without
reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It
is a deliberate act in disregard of the rights of others”.
Where malice is attributed to the State, it can never be a case of personal ill will or spite
on the part of the State. If at all it is malice in legal sense it can be described as an act
which is taken with an oblique or indirect object. The legal malice, therefore, on the part
of the State as attributed to it should be understood to mean that the action of the State is
not taken bona fide for the purpose of the Land Acquisition Act and it has been taken
only to frustrate the favourable decisions obtained by the owner of the property against
the State in the eviction and writ proceedings.]
In Balak Glass Emporium v United India Ins. Co. Ltd. (AIR 1993 Ker 342), the water
from the upper storey of the building under the defendant’s control escaped to the lower
floor, occupied by the plaintiff. There was evidence of ill will between the plaintiff and
the defendant. It was found that not only the tap on the upper floor was left fully open,
but the outlet of the tank was also closed. Thus, it was clear that the said act was done by
the defendant with the wrongful intention or evil motive, and hence, the plaintiff was held
entitled to get damages for the same.
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Introduction: Definition Nature & Scope
Torts where Malice is Relevant
In the following exceptional cases the malice or evil motive becomes relevant in
determining liability under the law of torts:
(i)
Malicious prosecution, nuisance, conspiracy, maintenance, deceit and injurious
falsehood.
(ii)
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.
(iii)
Malice may result in increase of damages for an otherwise ordinarily libel, assault
or trespass.
Recent trends - The recent trend is not only in making malice irrelevant, but also under
certain circumstances liability arises even without any negligence on the part of the
defendant. Thus in M.C. Mehta v Union of India (AIR 1987 SC 1086), in the case of
hazardous and inherently dangerous industry the principle of absolute (‘stricter than
strict’) liability has been recognized. The Workmen’s Compensation Act, 1932 and the
Motor Vehicles Act, 1988 provides for compensation to the victims without going into
the question of fault or negligence.
(a)
Decision of the case (a)
The construction of the building was prima facie illegal as it was constructed contrary to
MCD sanctions. MCD had a right to demolish the same. The plaintiff did not suffer
‘injuria’ (legal damage) as no one has a right to illegal construction, hence the question of
damages does not arise. The malice on the part of the MCD officials is not relevant in
deciding the question.
(b)
Decision of the case (b)
FOR: The purpose of the sanction to building plan is to ensure that the building is
constructed in accordance with the building bye-laws. Thus a building which conforms to
these bye-laws is not prima facie illegal. MCD had no right to demolish such building,
though it could have charged a penalty for technical irregularity committed by the
plaintiff. X can claim damages from the MCD.
AGAINST: See the decision of case (a) above.
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Law of Torts
DECISION: The legal technicalities or procedures have to be complied with. MCD
demolished the building after due show cause notice. Thus, X cannot succeed. X’s
arguments seem to be more in consonance with the ‘justice, equity and good conscience’.
Page 39
2
Defences against
Tortious Liability
In an action for a tort, the defendant may avoid his liability by taking the plea of some
defence. They constitute “justifications or grounds of immunity from liability to an action
in tort”.
In other words, they are ‘the rules of immunity which limit the rules of liability’
(Pollock). They are the classes of wrongs which stand outside the sphere of “tort”. In fact,
they are the conditions which will prevent an act from being wrongful which, in their
absence, would be a wrong. These defences are based principally upon grounds of public
policy.
The general defences, which may be taken against action for a number of wrongs, are:
(1)
Volenti non fit injuria (Defence of Consent).
(2)
Plaintiff, the Wrongdoer.
(3)
Inevitable Accident.
(4)
Act of God.
(5)
Private Defence.
(6)
Mistake.
(7)
Necessity.
(8)
Statutory Authority.
(9)
Acts causing Slight Harm.
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Law of Torts
(1) Volenti non fit injuria (Leave and Licence): Defence of Consent1
No injury is done to one who consents. Everyone is the best judge of his interest and
therefore the one who voluntarily agrees to suffer harm is not allowed to complain for
that and one’s consent is a good defence against oneself. This is so because the harm
voluntarily suffered does not constitute the legal injury. No man can enforce a right,
which he has voluntarily waived or abandoned.
Consent to suffer the harm may be express or implied. An example of express consent is
submitting to a surgical operation. An example of implied consent is where a player or a
spectator in the game of cricket or football is deemed to be agreeing to any hurt, which
may be likely in the normal course of the game. However, if there is a deliberate injury
caused by another player, or a spectator suffers injury due to negligent act of players, or if
a surgeon negligently performs an operation, the defence of volenti cannot be pleaded.
Thus, the act causing the harm must not go beyond the limit of what has been consented.
‘Consent to operate on the left eye is not necessarily a consent to operate on the right.’13
The maxim has a double application: first, it applies to the intentional acts which would
otherwise be tortious, viz. consent to a physical harm which would otherwise be an
assault; secondly, it applies to consent to run the risk of accidental harm, which would
otherwise be actionable as due to the negligence of the person who caused it, viz. a
master is not liable for an injury inflicted on a servant who has undertaken the
____________________
1.
Discuss the maxim volenti non fit injuria with the help of cases. [D.U.2008/2009/2011] [I.A.S.-2009] [L.C.I- 94/95/99/2002/2004] When can a defendant plead
‘voluntary assumption of risk’ by the plaintiff as a ground of defence in an action in tort?
[I.A.S.-92]
On what grounds can a person committing any harm on a consenting individual be not
punished? Is there any limit to the harm or can it be harm to any extent?
[I.A.S.-98]
1a. Geeta went to a surgeon for operation to remove kidney stones. The surgeon
performed the operation but left a gauze piece in the abdominal cavity during the
operation. This led to a second surgery being performed on her. She sues the surgeon for
negligence, who takes the plea of Volenti non fit injuria. Decide.
[D.U.-2008]
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Defences against Tortious Liability
service knowing the risks incidental thereto. The maxim is based on the sound principles
of justice and good sense.
In Hall v Brooklands Auto Racing Club (1931) 1 K.B. 205, the plaintiff was a spectator
at a motorcar race. During the race, there was a collision between two cars, one of which
was thrown among the spectator, thereby injuring the plaintiff. No such accident had
occurred in the previous twenty-six years. Held that the plaintiff impliedly took the risk
of such injury, the danger being inherent in the sport which any spectator could foresee,
the defendant was not liable. The defendants were not insurers against accidents which
could not reasonably be expected to happen.
The duty towards spectator was the duty of care rather than the duty of skill. Thus, error
of judgment or lapse of skill on the defendant’s part will not make him liable in a horse
show [Woolridge. v Summer (1963) 2 Q.B. 43]. The principle of Brooklands case applies
even to children as held in Murray v Harringay Arena Ltd. (1851) All ER 320, where the
plaintiff (a 6-year old child) was taken by his father to see an ice-hockey match. During
the course of the game the plaintiff was struck over the eye by the puck which was hit out
of the ring by one of players. Held, that such dangers were incidental to the game and
could be reasonably foreseen by spectators and they took the risk of them.
In Cleghorn v Oldham (1927) W.N. 147, X was on a golf course as a spectator, and Y,
who was not striking the ball in a game of golf, but was merely demonstrating a stroke to
X’s brother, negligently struck X in the face with the golf club. In a suit by X against Y
for damages, Y contended that by going to the golf course, X took the risk of such an
accident. It was held that X was entitled to damages. This is not a case of sport or a game,
but a regular business.
In an American case - Murphy v Steeplechase Amusement Co., 250 N.Y. 479, where the
defendant operated an amusement park and the plaintiff got injured in one of the
amusements, the court held in favour of the defendant, observing that one who takes part
in such a sport accepts the dangers inherent in it, so far as they are obvious and necessary,
just as a fencer accepts the risk of a thrust by his opponent, or a spectator at a ball game
the chance of being hit by the ball.
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Law of Torts
In Padmavati v Dugganaika2 (1975) 1 Karnt. L.J. 93, while the driver was taking the jeep
for filling petrol in the tank, two strangers took lift in the jeep. Suddenly one of the bolts
fixing the right front wheel to the axle gave way toppling the jeep. The two strangers
were thrown out and one of them died. Held that neither the driver nor the master could
be made liable, firstly, because it was a case of sheer accident and, secondly, the
strangers had voluntarily got into the jeep.
Essential Conditions of a Defence of Consent
In order to successfully plead the defence of Volenti non fit injuria, the following
conditions must be fulfilled:(i)
Free consent- The consent must not have been induced by fraud, compulsion,
coercion, undue influence, misrepresentation, mistake, etc. Moreover the act done by the
defendant must be the same for which the consent is given. For example, if a guest is
requested to suit in the drawing room and without any authority or jurisdiction he enters
the bedroom, he would be liable for trespass and he cannot take the defence of your
consent to his visit to your house. When a person is incapable of giving his consent
because of his insanity or minority, consent of such person’s parents or guardian is
sufficient.
Consent obtained by fraud is not real. Fraud vitiates consent, if it induces mistake as to
the real nature of the act done. Thus, in R. v Williams (1923) 1 K.B. 340, the accused, a
music teacher, was held guilty of rape when he had sexual intercourse with a minor girl
on the pretext of an operation to improve her voice. In this case, the victim was not aware
of the very act and she had consented to what she believed to be a surgical operation.
But, where the person is fully aware of the nature of the act- consented, no liability in tort
arises. Thus, in R. v Clearance (1888) 22 QBD 23, the husband while having intercourse
with his wife infected her with venereal disease, and the husband did not make her aware
of his condition, it was held that the consent given by the wife was enough to save her
husband from liability. An interesting example of implied consent is: a girl who makes no
protest at a proposal to kiss
____________________________
2.
A question based on the similar facts.
[L.C.II-94]
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Defences against Tortious Liability
her in the moonlight may have mental reservations that it is without her consent, but the
man who kisses her is nonetheless protected.
The consent obtained under a mistake will still be effective, unless the defendant is aware
of the mistake and takes advantage of it, and, such a mistake extends to the essential
character of the act itself, rather than to some collateral matter which merely operates as
an inducement.
The consent obtained under compulsion when the person has no freedom of choice is not
a free consent. Such a situation generally arises in master-servant relationship. The
servant may sometime be faced with the situation of either accepting the risky work or
losing the job. There is no volenti when a servant is compelled to do some work in spite
of his protests [Bowater v Rowley Regis Corpn. (1944) K.B. 476]. But if a workman
adopts a risky method of work of his own free will he can be met with the defence of
volenti (Imperial Chemical Industries v Shatwell 1965 A.C. 656).
(ii)
Knowledge3- Knowledge of a danger or risk is not the same thing as the consent
to bear the danger. In order to avail knowledge as a defence, it is necessary first to prove
that the plaintiff was aware of the risk and second that he, knowing the same, agreed to
run the risk of the harm. Thus, mere knowledge of the risk (Scienti non fit injuria) is not
enough. There should be ‘perception, appreciation and acceptance of the risk’. It is not
correct to say that no injury is done to one who knowingly does an act, even though he
made no attempt to prevent or avoid that act or danger.
‘Scienter’ is a word applied especially to that clause in a declaration of certain classes of
actions in which the plaintiff alleged that the defendant knowingly did or permitted that
from which arose the damage of which the plaintiff complained. In an action of deceit the
scienter must be averred and proved.
_________________
3.
“The maxim is volenti non fit injuria, it is not scienti non fit injuria". Explain.
[D.U,-2007] [L.C.I-95]
Whether only knowledge of danger or risk on the part of the plaintiff is sufficient to
invoke the defence of volenti non fit injuria. Discuss with the help of case law.
[D.U.2011]
“Knowledge of the danger does not amount to consent to undertake the risk.” Discuss
with the help of decided cases.
[I. A. S.-2008]
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Law of Torts
A man cannot be said to be truly willing unless he is in a position to choose freely and
freedom of choice predicates not only full knowledge of circumstances on which the
exercise of choice is conditional, so that he may be able to choose wisely, but the absence
of any feeling of constraint so that nothing shall interfere with the freedom of his will
[Bowater v Rowley Regis Corpn. (1944) K.B. 476]. In this case, the plaintiff, a cart
driver, was asked by the defendant’s foreman to drive a horse, which to the knowledge of
both, was liable to bolt. The plaintiff protested, but ultimately took out the horse in
obedience to the order. The horse bolted and the plaintiff was injured thereby. Held, the
maxim volenti non fit injuria did not apply and the plaintiff was entitled to recover.
In Cutler v United Dairies (.London) Ltd. (“Holding Restive Horse Case”) (1953) 2 K.B.
297, the driver of a cab with restive horses cried for help. The plaintiff went and
attempted to hold the horse but it threw him on the ground causing him injuries, in
respect of which he sued the defendant. Held that the plaintiff has no right of action and
he cannot be permitted to say, “I knew that horse would plunge, but 1 did not kiww how
much it would plunge.” The plaintiff must have known that his attempt to hold the horse
was attendant with risk, and therefore, the maxim volenti non fit injuria applied.
LEADING CASE: SMITH v CHARLES BAKER & SONS
(“STONE QUARRY CASE”)
[(1891) A.C. 325 (HL)]
In this case, the plaintiff was workman employed by the defendant on working a drill for
the purpose of cutting a rock. By the help of a crane, stones were being conveyed from
one side to the other, and each time when the stones were conveyed, the crane passed
over the plaintiff’s head. While he was busy in his work a stone fell from the crane and
injured him. The employers were negligent in not warning him at the moment of a
recurring danger, although the plaintiff had been generally aware of the risk. It was
argued that the plaintiff, knowing of the danger, to which he was exposed, was willingly
working in the quarry.
The House of Lords held that the plaintiff had not voluntarily undertaken the risk. Thus,
the mere knowledge of the risk without the assumption of it does not help in applying
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Defences against Tortious Liability
the maxim. It must be shown that the plaintiff agreed or appreciated that what risk there
was should lie on him. It should be clearly shown that the employee had brought home to
his mind the nature of the risk he was undertaking and that the accident to him arose from
a danger both foreseen and appreciated.
A master is not liable to his servant for injuries from any ordinary risk of, or incidental to,
the service. But, the master is bound to take all reasonable precautions to secure the
safety of his workmen and to carry on his operations so as not to subject those employed
by him to unnecessary risk. Again, a negligent system or a negligent mode of using
perfectly sound machinery may make the employer liable. If, then, the employer fails in
his duty towards the employed, and because the employee does not straightway refuse to
continue his service, it is true to say that he is willing that his employer should thus act
towards him. In this case, there was a negligent practice of swinging stones over the
workmen’s heads by means of a crane, which unnecessarily exposed them to danger.]
In South Indian Industries Ltd. v Alamelu Ammal (AIR 1923 Mad. 565), the employer
used a method of breaking up cast iron which consisted of dropping a heavy weight on
pieces from a great height. Consequently a piece of iron hit and killed a workman. Held
that the defence of consent was not available. That the plaintiff (workman) had some
knowledge of the danger is not sufficient. A man cannot voluntarily undertake a risk the
extent of which he does not appreciate. When the defendant himself pleads that he did not
anticipate and could not have anticipated pieces flying over a distance of 90 feet, he
cannot plead that the deceased workman could possibly have anticipated it for himself.
Case of taking ‘lift’ in car4 - In Dann v Hamilton (“Drunken Driver’s Case”) (1939) 1
K.B. 509, a lady knowing that the driver of the car was drunk chose to travel in it instead
of an omnibus. Due to the driver’s
________________
4.
Dann, knowing fully well that Hamilton was drunk, asked for a lift from him in
his car. Hamilton was driving the car rashly for which Dann showed her concern to
Hamilton. Ultimately, the vehicle met an accident killing Hamilton and causing injuries
to Dann. Dann sues for damages. Decide, giving reasons. [C.L.C.-95]
Page 46
Law of Torts
negligent driving an accident was caused resulting in the death of the driver himself and
injuries to the lady passenger. The court held that the lady was entitled to claim
compensation. The reason why the defence of volenti non fit injuria was considered to be
not applicable was that the degree of intoxication of the driver was not to such an extent
that taking a lift could be deemed to be consenting to an obvious danger. It was held that,
except perhaps in extreme cases, the maxim did not apply to the tort of negligence.
Thus, according to this case, it must be seen from the facts as to what was the degree of
intoxication of the driver. However, the above decision has been criticized, mainly on the
ground that even if the doctrine of ‘volenti’ did not apply, the defence of contributory
negligence could be available (however, it was not pleaded in defence). The case came up
for consideration by the Court of Appeal and was approved. This case was not followed
by the High Court of Australia in Insurance Commissioner v Joyce (1948, 77 C.L.R. 39).
Where the driver became more and more drunk as the journey proceeded, the plaintiff
could recover damages because of the driver’s negligence as there was no volens when
the journey began (a Canadian High Court decision). The fact that plaintiff knows that
the driver has been negligent in the past doesn’t necessarily deprive him of his remedy if
he travels with such a driver (Walker v T. Sainsbury 1952 S.A.S.R. 159). Where the
driver of the vehicle gives a passenger a lift and also gives him reasonable notice that he
rides at his own risk, it has been held that the passenger is bound by the notice and he
cannot claim in case of an accident5 [Buckpitt v Oates (1968) 1 All ER 1145].
A solution might have been found by holding that a special relationship exists when a
passenger is aware of facts which show that the driver cannot be expected to drive other
than dangerously. Thus, a passenger going with a drunken driver may be unable to sue,
because he is aiding and abetting the offence [Nettleship v Weston (1971) 2 Q.B. 691].
______________
5.
A asks for a lift from a motorist D. D told A: “I am not an expert driver. I am
without a driving licence too. You may travel at your own risk”. A travels with D. Later,
the motor vehicle collided with a bus due to defective brakes of D's vehicle. A sues D for
injuries suffered by him in the accident. D pleaded volenti non fit injuria. Decide. [C.L.
C. -97]
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Defences against Tortious Liability
Other cases - In lllot v Wilkes (1820) 3 B & Aid. 304, a trespasser, who knew about the
presence of spring guns on a land, could not recover damages when he was shot by a
spring gun. Similarly, damage caused to a trespasser by broken glass or spikes on a wall,
or a fierce dog, is not actionable.
Limitations/ Exceptions to the application of the maxim6
Besides ‘no free consent’ (e.g. due to fraud, coercion, etc.) and ‘mere knowledge of the
risk without the assumption of it’ (discussed above), the following are the various
limitations to the application of the maxim volenti non fit injuria:
(i)
Illegal consent- No consent can legalize an unlawful act e.g. fighting with naked
fists or duel with sharp swords. No person can licence another to commit a crime (R. v
Donovan).
“The process, game or operation to which assent is given must not be one which quite
apart from tortious liability is banned by law” (Winfield). “No man can lawfully consent
to his own death.” The maxim is inapplicable where the act is contrary to public policy.
(ii)
Breach of a statutory duty- The maxim has no validity against an action based on
a breach of a statutory duty. Thus it is no answer to a claim made by a workman against
his employer for injury caused through a breach by the employer of a duty imposed on
him by statute (Wheeler v Mertor Board Mills Ltd.). Similarly, when a prisoner with
known suicidal tendencies committed suicide within the police custody as the police
failed to take reasonable precautions for preventing suicide, the police could not avail of
the defence of the maxim.
(iii)
Negligence- The maxim does not apply to cases of negligence. When the plaintiff
consents to take some risk the presumption is that the defendant will not be negligent.
Thus, where a player negligently or deliberately hit another with a stick or where an
operation is unsuccessful because of surgeon’s negligence, the defendant cannot plead
volenti non fit injuria because the plaintiff never consented to an injury in that manner.
The act
6.
Discuss various limitations to the application of the maxim 'volenti non fit
injuria’.
[C.L. C.-95]
Page 48
Law of Torts
causing the harm must not go beyond the limit of what has been consented.
In Bradon v Osborne (“skylight case”), while plaintiffs, husband and wife, were in a
shop, a skylight in the roof was broken, owing to negligence of the contractors. The glass
fell and injured the husband. His wife while trying to pull him strained her leg. Held that
both the plaintiffs were entitled to damages; the wife was held entitled inasmuch as what
she did was, in the circumstances, a natural and proper thing to do.
In T. C. Balakrishnan Menon v T.R. Subramanian (AIR 1986 Ker 151), during the
Pooram celebrations, which were attended by lakhs of people, the explosion caused by
igniting explosive-powder filled coconut shells seriously injured the plaintiff. It was
established that the injury was caused by the negligence of the defendants (servants of the
contractors) who did not properly checked the explosive. The defendants were held
liable. The defendants pleaded that the plaintiff was a volunteer and that he had come to
watch the celebrations fully knowing and also fully aware of the risk involved, thus the
maxim applies. The court rejected this contention on the ground that the lakhs of people
who come to watch the celebrations could not be called volunteers to the risks. There was
hardly any likelihood of such possibilities if the employees had been careful in handling
the explosives.
Where during the course of gymnastics training, a schoolboy was required to vault over a
horse and he landed in a stumble and was injured, the instructor in charge doing nothing
to assist him in landing properly, it was held to be a case of pure negligence. Therefore,
the maxim volenti non fit injuria does not apply.
(iv)
Rescue cases7- When the plaintiff voluntarily takes a risk (even of death) to
rescue somebody from an imminent danger created
_____________________
7.
Write a short note on ‘Rescue cases and defence of volenti non fit injuria.'
[D.U.-2008] [C.LC.-95] L.C.II-94]
‘Defence of volenti non fit injuria is not available when the rescuer is injured in an act of
rescuing.’ Discuss. [I.A.S.-2010]
A woman jumped into a well in order to commit suicide. A passer-by, jumped into the
well in order to rescue her. In trying to save woman, against her will, the passer-by
sustained some injuries. Later on the passer-by sued the woman for damages. Will he
succeed? Would it make any difference to your answer if passer-by was a police official?
[D.U.-2009]
[Hint. It is a ‘Rescue case’; the passer-by will succeed. The answer would be same if he
was a police official.]
Page 49
Defences against Tortious Liability
by the wrongful act of the defendant, he cannot be met with the defence of volenti non fit
injuria. The danger invites rescue. The cry of distress is the summons to relief. A man
cannot be deemed to have given real consent if he acts under the compulsion of legal or
even a moral duty.
LEADING CASE: HAYNES v HARWOOD8
(“POLICE CONSTABLE’S CASE”)
[(1935) 1 K.B. 146]
In this case, the defendant’s servant left a two-horse van unattended in a street. A police
constable, the plaintiff, who was on duty, saw the runaway horses coming down the
street. Seeing a grave danger to a woman and children he took the risk and managed to
stop the horses, but in the process, he was seriously injured. It being a ‘rescue case’ the
defence of volenti non fit injuria was not accepted and the defendants were held liable.
Their Lordships observed that as the defendants must or ought to have contemplated that
someone might attempt to stop the horses in an endeavour to stop injury to life, the act of
and injuries to the plaintiff were the natural and probable consequence of defendant’s
negligence. In rescue cases it is immaterial whether the plaintiff acted deliberately from a
sense of moral duty, or on impulse, for the exercise in such a case leaves no choice in
acting as he did. Further, it does not matter whether the person endangered is one to
whom he owes a duty of protection, as a member of his family, or is a mere stranger to
whom he owes no such special duty.
____________________
8.
A small boy aged about 4 years was a pupil at a nursery school run by the
defendant. The mistress who had the boy in her charge left him unattended in the
classroom in order to bandage another child. The boy got out of the classroom and made
his way into a busy highway. L, a lorry driver saw the boy running in the middle of the
road. He suddenly swerved the lorry to save the child and in doing so he dashed against a
telegraph pole, and sustained serious injuries. L sues the defendant for negligence. It was
pleaded in defence that though the defendant might've owed a duty of care to the child, he
owed no such duty to L and therefore the maxim volenti non fit injuria applied in this
case. Decide. [L.C. II-97; C.L.C.-98]
[Note: It is a ‘Rescue case’ which forms an exception to the doctrine of volenti non fit
injuria. Thus, L will succeed in his action.]
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Law of Torts
However, a person who is injured in an attempt to stop a horse which creates no danger
will be without a remedy. Thus, the rescuer mustn’t take unnecessary risk (Cutler v
United Dairies) (discussed above).]
In Wagner v International Railway (1921) 232 N.Y. 176, a railway passenger was thrown
out of the running railway car due to the negligence of the railway company. When the
car stopped, his companion got down to search his friend. There was darkness, the
rescuer missed his footing and fell down the bridge resulting in injuries to him. He
brought an action against the railway company. Held, that it being a case of rescue the
railway company was liable.
In Baker v T.E. Hopkins & Son (1959) 3 All ER 255, due to the employer’s negligence a
well was filled with poisonous fumes of a petrol driven pump and two of his workmen
who were reconstructing the well were overcome by fumes. Dr. Baker was called but he
was told not to enter the well in view of the risk involved. Dr. Baker entered the well
despite the risk with the view to help the two workmen, however fumes too overcame
him. He died on way to the hospital. Held, that the act of the rescuer was the natural and
probable consequence of the defendant’s wrongful act which the latter could have
foreseen and therefore the maxim does not apply. It would certainly be a strange result if
the law were held to penalize to the courage of the rescuer by depriving him of any
remedy. The defendants were, thus, held liable.
In Videan v British Transport Commission (1963) 2 Q.B. 650, held that the defendant is
liable to both the victim and rescuer. The right of the rescuer is independent of that of the
victim. Further, the right of the rescuer is not affected by the defences, which may be
pleaded against the victim e.g. contributory negligence of the victim (when a person by
his negligence puts himself in danger and thus rescued by another person). The rescuer in
such a case can claim damages from such person. The rule in Haynes v Harwood also
applies in cases of rescue of property of another or oneself [Hyett v Great Western
Railway (1948) 1 KB 345].
(v)
Unfair Contract Terms Act, 1977 (England)- Sec. 2 of the Act limits the right of a
person to restrict or exclude his liability resulting from his negligence by a contract term,
or by notice. There is a complete ban on a person’s right to exclude his
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Defences against Tortious Liability
liability for death or personal injury resulting from negligence, by a contract term or
notice. In other cases, exclusion of liability by contract is possible only if such a term or
notice is reasonable. When a contract term or notice purports to exclude or restrict his
liability for negligence, a person’s agreement to or awareness of it is not of itself to be
taken as indicating his voluntary acceptance of any risk. Thus, Sec. 2 is another limitation
to the maxim volenti non fit injuria.
(2)
Plaintiff the Wrongdoer
The mere fact that the plaintiff himself is the wrongdoer does not disentitle him from
recovering the loss, which he suffers, unless some unlawful act or conduct of plaintiff is
connected with the harm suffered by him as part of the same transaction (Pollock). Thus,
he may lose his action if his wrongful act is the real cause of his harm. In order to claim
compensation, his wrongful act should be quite independent of harm caused to him.
In Bird v Holbrook (“Spring Gun Case”) (1828) 4 Bing. 628, held that the trespasser on
the defendant’s land is entitled to claim compensation for the injury caused by spring
guns set by the defendant without notice in his garden (though the plaintiff was a
trespasser as he climbed over defendant’s wall in pursuit of a fowl, and the injury would
not have occurred if he had not trespassed).
If the owner of the house deliberately throws stones on a trespasser to his land he will be
liable for the throwing of stones although he can bring action against the trespasser for
the trespass.
(3)
Inevitable Accident
It means an unexpected injury, which could not have been, avoided in spite of a
reasonable care on the part of the defendant. It means an accident which is physically
unavoidable. It may be caused by forces of nature (act of God) or due to factors which are
within human control. The accident should not have been capable of being prevented by
ordinary skill and diligence.
It is important to note that this defence is available only if the accident occurs during the
prosecution of a lawful act and not when
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Law of Torts
the act done is unlawful. In Brown v Kendall (1850) 6 Cush (60 Mass.), 292 (an
American case), the plaintiff’s and the defendant’s dogs were fighting. The defendant
was beating them in order to separate them and the plaintiff was looking on. In so doing,
the defendant accidentally hit the eye of the plaintiff, inflicting upon him a severe injury.
Held, that defendant’s action was a lawful and proper act in itself, which could be done
by proper and safe means. Now, if in doing it, he accidentally hit the plaintiff in the eye
and wounded him, it was the result of a pure accident.
In the famous “Nitro-Glycerine Case” (1872) 15 Wallace 524, the defendants (carriers),
received a wooden case for transmission, without being informed of the nature of the
contents. The contents were found to be leaking, and the defendants thereupon took the
case to their office for examination. While doing so, the nitro-glycerine contained in the
case exploded, and the building was damaged. In an action by the owner of the building
against the carriers, it was held to be a case of sheer accident, as the defendants were not
bound to know the nature of the contents, unless the appearance excited suspicion. The
court observed, “No one is responsible for injuries resulting from unavoidable accident
whilst engaged in lawful business. The measure of care against accident which one must
take to avoid responsibility is that which a person of ordinary prudence and caution
would use, if his own interest were to be affected and the whole risk were his own.”
If A fires at a bird but the pellet from the gun strikes a tree and rebounds and injures B in
a different direction, A can take the defence of inevitable accident [Stanley v Powell
(1891) 11 Q.B. 86], In this case, B was part of the shooting party and was engaged in
carrying cartridges and game for the party. The ratio decidendi in this case has been
criticized as erroneous, though the decision itself can be supported on the ground of
volenti non fit injuria.
Similarly, if the driver is not able to control the horses in the public highway, which are
startled by a barking dog, and the plaintiff is thereby injured, the defendant will not be
liable [Holmes v Mather (1857)]. In this case, the driver tried to guide them as best as he
could. At last, he failed to turn them clear round a sharp comer, and they stuck the
balcony of the plaintiff’s house. The plaintiff who was standing on the balcony was
injured.
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Defences against Tortious Liability
In Assam State Coop. Ltd. v Smt. Anubha Sinha (AIR 2001 Gauh 18), the defendant
tenant requested the plaintiff landlord to repair the defective electric wiring. But the latter
failed to do so. There occurred an accidental fire in the premises probably due to short
circuit of electric connection. There was found to be no negligence on the tenant’s part.
In an action by the landlord to claim compensation from the tenant, it was held that since
it was a case of inevitable accident, the tenant was not liable.
(4)
Act of God- vis Major9
Pollock defines the Act of God as- “an operation of natural forces so unexpected to
anticipate it.” Act of God is also known as vis major in Latin. It may be noted that the
expression force majeure is not a mere French version of the act of God; it is a term of
wide import and includes act of God, war, riot, strike, earthquake, storm, flood, fire, etc.
The expression “force majeure” (literally “superior force”) means irresistible force or
compulsion or circumstances beyond one’s control (such clause is common in a
construction contract).
Two important essentials are needed for the defence of act of God:
(i)
There must be working of natural forces (like exceptionally heavy rainfall,
storms, tempests, earthquakes, tides and volcanic eruptions) without any human
intervention.
(ii)
The occurrence must be extraordinary and not one which could be anticipated and
reasonably guarded against.
Act of God is a kind of ‘inevitable accident’ with the difference that it does not
incorporate any human intervention. Accidents may happen by reason of the play of
natural forces or by intervention of human agency or by both, but it is only those acts
which can be traced to natural forces and which have nothing to do with the intervention
of human agency that could be said to be acts of God. The rule of strict liability (rule in
Rylands v Fletcher) also recognizes act of God to be a valid defence for the purpose of
liability under that rule.
_________________
9.
Write a short note on ‘Act of God’ as a defence of tort.
[D. U. -2007/2008/2011] [C.L.C. -92/99/2003; L. C. II-94/2000/2002/2005]
Page 54
Law of Torts
The occurrence need not be unique or one that happens for the first time, it is enough that
it is extraordinary and could not have been avoided by any amount of foresight and pains
and care reasonable to be expected of the person sought to be made liable for it. A road
accident resulting due to heavy fog is not covered under the act of God. Fog is not such a
natural phenomenon that no human foresight could guard against it. In Nichols v
Marsland (1876) 2 Ex. D. 1, the defendant created some artificial lakes on his land. Once
there was an extraordinary heavy rainfall, stated to be the heaviest in human memory, as
a result of which overflow of water from lakes washes away four bridges belonging to the
plaintiff. Held, that the defendants were not liable as the loss had occurred due to act of
God (If in this case, the rainfall is a normal one which could be expected in a certain area,
the defence of act of God cannot be pleaded).
In Slater v Worthington (1941) 1 K.B. 488, owing to the extraordinary severe snowstorms, snow and ice had accumulated on the roof of the defendant’s premises. No steps
were taken to remove the snow or to warn the public of its presence. The plaintiff, while
standing on the pavement outside the premises and looking through the window of the
defendant’s shop, was injured by a fall of snow which had accumulated on the roof. The
snow could have been removed from the roof, but this was not done. It was held that
there was a duty on the part of the defendants to safeguard members of the public using
the pavement from the danger occasioned by the snow. The plea that the storms were acts
of God was no defence, as it was the snow, and not the storms, which directly caused the
injury.
In Kallulal v Hemchand (AIR 1958 M.R 48), the wall of a building collapsed on a day
when there was a rainfall of 2.66 inches. That resulted in the death of respondent’s two
children. Held, that the defendant couldn’t take the defence of act of God as that much of
the rainfall during the rainy season was not something extraordinary but only such as
ought to have been anticipated and guarded against.
In Ramalinga Nadar v Narayyana Reddiar (AIR 1971 Ker 197), an unruly mob (‘jatha’)
robbed the goods transported in the defendant’s lorry. Held, that it wasn’t an act of God
as there was a human intervention.
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Defences against Tortious Liability
LEADING CASE: MANINDRA NATH MUKHERJEE v MATHURADAS
CHATTURBHUJ (AIR 1946 Cal 175)
In this case, the defendants, the owners of a certain cinema, had put up a huge hoarding at
a crossing. The hoarding was many feet long and consisted of iron poles. During a severe
storm a banner on the hoarding collapsed and fell on the plaintiff’s head causing a severe
injury. It was found that in the framework of the hoarding there was no device by means
of which the banners could be held firmly and secured in place - no bolts, slots, grooves,
flanges of screws. The banners were held against the galvanised sheet by means of cheap
coir ropes which were fastened to the four comers of the wooden frame.
Held, that it was a case of pure negligence and not an act of God. The occurrence was not
due to severe storm or any unavoidable or unexpected cause. The fact that the velocity of
the wind which caused the fall of the banner was less than 27 miles per hour in the city of
Calcutta during the monsoon season itself showed that the defendant was guilty of
negligence. Proper care was not taken to secure the banner in such a way as to prevent it
from being blown into the street during monsoon weather. The defendants could have
easily visualized the severity of the rains and storms and should have taken sufficient care
to prevent such accidents.]
(5)
Private Defence
It is human instinct to repel force by force, and this instinct is allowed, even approved, by
law as a natural right. Private defence is a good ground to negative a tortious liability.
Although the general exceptions of the Indian Penal Code do not, in terms, apply to a suit
based on a tort, the principle of self-defence is applicable in such cases (Debendra Bhoi v
Meghu Bhoi AIR 1986 Ori. 226).
The law permits the use of reasonable force to protect one’s person or property. This may
even be done for a wife or husband, a parent or child, a master or servant. For this, the
following conditions
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Law of Trots
have to be satisfied- (i) there was an imminent and immediate danger, (ii) the
force
employed was not out of proportion, and (iii) the force is employed only for the purpose
of defence. Thus, necessity must be proved. It may be noted that a person cannot, for the
purpose of self- defence, do an act which is injurious to his neighbour.
The force should not be used by way of retaliation after the danger is over. In Morris v
Nugent [(1836) 7 C. & P. 572)], the defendant shot the plaintiff’s dog after the dog
attempted to bite him and in fact was running away. Held, that the right of private
defence could not be pleaded. But, in a case where a vicious dog continued attacking the
defendant’s horses, and the defendant was compelled to disable the dog with a spear
which resulted in its death, it was held that the defendant could successfully plead the
right of private defence [Turner v Jagmohan Singh (1905) ILR 27 All 531].
Fixing of broken glass or spikes on a wall, or keeping of a fierce dog can be justified for
the protection of the property, but fixing up of spring guns without any warning to a
trespasser (Bird v Holbrooke and Hot v Wilkes), or live electric wire to keep the
trespassers away (Cherubin Gregory v State of Bihar AIR 1964 SC 205), cannot be
justified.
In Ilot v Wilkes (1820) 3 B. & Ald. 304, the trespasser hit by spring gun held not entitled
to recover compensation as he had gone there having a notice of the existence of danger.
There was volenti non fit injuria. But the result would be different if the plaintiff has no
knowledge of the risks and dangers involved in the trespass as was the case in Bird v
Holbrooke cited earlier.
Trespassers must know - If the defendant wants to put up a private defensive measure
against trespassers, he must put up a clear NOTICE (e.g. ‘Beware of Dogs’, ‘Beware of
Fatal Injury’) in the local and other languages of the existence of such a danger. He need
not clarify what defences he has put up for personal reasons, but the notice must be such
as to make the trespassers ‘aware and conscious of the fatal injury’ in case of trespass.
Further, he must ensure that the defence is not against his friends who may not be aware
of the existence of such a defence.
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Defences against Tortious Liability
(6)
Mistake
Mistake, whether of fact or law, is generally no defence to an action of tort. Entering the
land of another thinking that to be one’s own is trespass, driving of plaintiff’s sheep
amongst one’s own herd is trespass to goods, injuring the reputation of another without
an intention to defame is defamation.
In Consolidate Company v Curtis & Son (1892) 1 Q.B. 425, the owner of certain
household furniture assigned it by a bill of sale to the plaintiffs. Subsequently, the
assignor employed the defendants, a firm of auctioneers, to sell it by auction at her
residence. The defendants, who had no notice of the bill of sale, accordingly sold the
furniture and delivered it to the purchasers. The defendants pleaded that they had acted
under a mistake as to the true ownership of the property. Held, that the mistake of fact
was no excuse for trespassing or interfering with plaintiff’s property so wrongfully sold
and delivered.
However, in torts requiring malice, such as the wrong of malicious prosecution and deceit
the liability does not arise when the defendant acts under an honest and mistaken belief.
Similarly, mistaken arrest of an innocent person on suspicion of felony is not actionable.
Thus, a mistake of fact is an excuse in the cases where motive is an essential ingredient
constituting the wrong. It may be noted that in matters of criminal law, mistake of fact is
generally a good defence. Even in the law of tort itself, the courts are often required to
ascertain whether a person has acted “reasonably” (e.g. in the case of negligence).
(7)
Necessity (Jus necessitatis)
An act causing damage, if done under necessity to prevent a greater evil is not actionable
even though harm was caused intentionally. Throwing goods overboard a ship to lighten
it for saving the ship or persons on board the ship, or for a competent surgeon to perform
an operation on an unconscious person to save his life, or where private houses are pulled
down to stop a fire, are the examples of necessity.
The defence of necessity applies to the cases of public necessity (a person’s own
individual welfare can be placed in jeopardy for the public goods), private necessity and
the assistance given to the third
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Law of Torts
person without his consent as a matter of necessity. The welfare of the people is the
supreme law - salus populi suprema lex.
However, the defence is confined to the urgent and transient situations of great and
imminent danger to life. For example, a fire originates in A’s house through some
unknown electrical defect and in extinguishing it, B’s adjoining property is damaged by
water. B cannot succeed in an action, since A was acting under sheer necessity.
In Kirk v Gregory (1876) 1 Ex. D. 55, on the death of X in a state of delirium tremens,
his sister-in-law removed X’s jewellery, from the room where he lay dead, to another
room, where she thought they would be safer. However, the jewellery was stolen by some
unknown persons. Held, that she was liable, as there was no proof that her interference
was reasonably necessary.
The master of a vessel on the high seas or in a foreign port has disciplinary powers, not
only over the crew, but the passengers also. Such powers are based upon necessity and
are limited to preservation of discipline and safety of the ship.
(8)
Statutory Authority10
If the Legislature has authorised the doing of an act, no action can be maintained for that
act. The person injured by such an authorised act can have no remedy, except the one (if
any) provided by the statute itself. This defence is founded on the principle that the law,
which recognizes a right, can abolish it, modify it and regulate it. Thus, the damage
resulting from an act, which the legislature authorizes or directs to be done, is not
actionable even though it would otherwise be a tort. For such a statutory authority is also
a statutory indemnity, taking away all legal remedies except those which are expressly
provided by the statute itself. This defence has its most important application in actions
of nuisance, but it is one of general application throughout the whole sphere of civil
liability.
_________________
10.
The principle of law deducible from judicial decisions is that a man exercising
rights under the Statute is not liable unless it is proved that, he had acted unseasonably or
negligently. Elucidate.
[C.LC.-93]
Write a short note on ‘Statutory authority’ as a defence to tortious liability.
[D. U. -2007/2009]
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Defences against Tortious Liability
Immunity under statutory authority is not only for that harm which is obvious, but also
for that harm which is incidental to the exercise of such authority. Therefore, if a railway
line is constructed, there may be interference with private land or the running of train
may cause harm due to noise, smoke, etc. In Vaughan v Taff Vale Rail Co. (“Engine
Spark Case”) (1860) 5 H & N 679, sparks from an engine of the respondent rail company
set fire to the appellant’s woods on the adjoining land. Held that since the respondent had
taken proper care to prevent the emission of sparks (it was impossible to totally prevent
the escape of sparks) and they were doing nothing more than what the statute had
authorized them to do, they were not liable.
Similarly, in Hammer Smith Rail Co. v Brand (1896) L.R. H.L. 171, the value of the
plaintiff’s property had considerably depreciated due to the noise, vibration and smoke
caused by the running of trains. The damage being necessarily incidental to the running
of the trains authorized by the statute, it was held that no action lies for the same.
However, where an act authorized by the legislature is done negligently, than an action
lies. In Smith v London & South Western Railway Co. (1870) L.R. 6 C.R 14, the servants
of a Railway Co. negligently left trimmings of grass and hedges near a rail line. Sparks
from an engine set the material on fire. By a heavy wind the fire was carried to the nearby
plaintiff’s cottage, which was burnt. Since it was a case of negligence on the part of the
Railway Co., they were held liable.
A gas company had statutory powers to place mains and pipes under certain highways
within the jurisdiction of the defendants, who were, by virtue of a statute, bound to repair
the highways. The defendants began to use steam-rollers of considerable weight for the
purpose of repairing the highways, and thereby damaged the pipes belonging to the
company laid under the highways. The gas company sought an injunction restraining the
defendants from using such rollers. The defendants pleaded that the damage complained
of was incidental to an authorised act. It was held that the gas company was entitled to an
injunction. The defendants had the power to use steam-rollers for repairing the highways,
but that did not mean that they were obliged to use such heavy rollers as would damage
the gas pipes [Gas Light Coke v Vestry of St. Mary Abbots, Kensington (1885)
Q.B.D.I.].
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LEADING CASE: RAMCHANDRARAM NARGAM RICE & OIL MILLS LTD. v
MUNICIPAL COMMISSIONER, PURULIA MUNICIPALITY (AIR 1943 Pat. 408)
In this case, the plaintiff had dispatched hundreds of ‘canisters’ full of mustard oil,
manufactured by them. At the railway station, these ‘canisters’ were seized by the
Sanitary Inspector and were loaded in a truck, which was used for carrying rubbish and
night soil. Owing to this action (which was alleged to be mala fide action on the part of
the Inspector in collusion with the defendants), the plaintiffs suffered a huge loss.
It was alleged that their customers refused to take delivery of the tins on the ground that
they had been carried in a municipal vehicle which was used to carry rubbish and
consequently the oil had become inconsumable or unfit for human consumption. The
plaintiffs alleged that not only did they lose their goodwill and suffered damages, they
had to sell their oil at a much lower rate than the prevailing rate in the market.
Held, that the action of the municipality was unreasonable and that it negligently caused
damage to the plaintiff. There were many other methods available to the municipality to
achieve its object for which the tins of mustard oil were seized. But the way the
employees handled the canisters by loading them in the vehicle used for carrying rubbish
certainly caused damage to the plaintiffs. The action of the municipality was held to be
negligent and hence it was held liable for the damages.
Comments - It is clear from the above case that the act done in pursuance of the statutory
powers must be done with due care and caution i.e. without negligence. The statutory
powers are not charters of immunity for any injurious act done in exercise of them.
However, in the two cases discussed below, the statutory authority was held not liable.
Also, the distinction between the absolute and conditional statutory authority may be
noted in this regard.
In Ram Gulam v U.P Govt. (1951) 1 All 135, the plaintiff’s ornaments were exhibited in
a ‘theft case.’ By a strange
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coincidence, they were once again stolen while in custody of the Court. The plaintiff sued
the Government for the ornaments or their value. Held, that the Government was not
liable, as the alleged tortuous act was performed in discharge of an obligation imposed by
law.
In Bhogi Lal v The Municipality of Ahmedabad (3 Bom. L.R. 415), the municipality
demolished the plaintiff’s wall under its statutory powers. The demolition of the wall also
resulted in the falling of the roof of the defendant (municipality) on the wall. In an action
by the plaintiff for the damage to property, it was held that no suit will lie on behalf of a
person who sustains a private injury by the execution of powers given by a statute, these
powers being exercised with judgment and caution.]
Absolute and conditional statutory authority - Absolute authority is authority to do the act
notwithstanding the fact that it necessarily causes a nuisance or other injurious
consequences. Conditional authority is authority to do the act provided it can be done
without causing a nuisance or other injurious consequences. Such a condition may be
express or implied. The Railway Acts are generally construed to be conferring an
absolute authority to set up the railway, whether any nuisance is thereby caused or not.
If the terms of a statute are permissive, and not imperative, the powers conferred by the
legislature should be exercised with due regard to the common rights of others. In
Metropolitan Asylum District v Hill (1881) 6 A.C. 193, a local authority, having statutory
authority to erect a smallpox hospital, was restrained from erecting one in a place in
which it would have been a source of danger to the residents of the neighbourhood. This
statutory authority was construed, not as an absolute authority to erect a hospital where
the defendants pleased, and whether a nuisance was thereby created or not, but as
conditional authority to erect one if they could obtain a suitable site where no nuisance
would result.
(9)
Acts causing Slight Harm
The law does not take account of trifles - de minimis non curat lex. Nothing is a wrong of
which a person of ordinary sense and temper
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would not complain. The principle is also recognized in Sec. 95 of the Indian Penal Code.
For example, A is driving along a dusty road at a good speed, and the wheels of his
motor-car throw a little dust on the clothes of B, a pedestrian, which does him no harm. A
is not liable. In Coward v Baddeley (1859) 4 H & 478, a bystander touched a fireman on
the arm to attract his attention to another part of a building where a fire was raging. On a
suit filed by the fireman for battery, the court held that the bystander was not liable for
battery.
But, the maxim has no application where there is an injury to a legal right. Thus, A walks
across B’s Land (without B’s permission), not thereby damaging, in any way, the soil of
B. This will amount to a tort, because, if repeated, such an act would establish A’s right
of way across B’s land. Likewise, X casts and draws a net in water where Y has the
exclusive right of fishing. Now, whether any fish is caught or not, X has committed a tort
against Y, because the act, if repeated, would tend to establish a claim or right to fish in
that water [Holford v Bailey (1849) 18 L.J.Q. B. 109].
FURTHER QUESTIONS
Q.1. A motor car race was held at Discoland on a track owned by D. During the race
there was collision between two cars, one of which was thrown among the spectators,
thereby injuring P. P sues D to claim damages for injuries suffered by him. D pleads
‘volenti non fit injuria’. Decide.
[C.L.C.-94]
A.1. Volenti non fit injuria (Defence of Consent)
In an action for a tort, the defendant may avoid his liability by taking the plea of
‘voluntary assumption of risk’ by the plaintiff as a ground of defence. No injury is done
to one who consents. One’s consent is a good defence against oneself. This is so because
the harm voluntarily suffered doesn’t constitute the legal injury. Salmond said: “Thus
consent may deprive a plaintiff of a right of action in trespass which he would otherwise
have had for an injury inflicted accidentally.”
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Thus, where a person submits to a surgical operation or where a spectator watches a game
in the stadium or where a person takes a lift in the vehicle, they all have voluntarily
agreed to suffer any harm resulting from operation, playing of game or driving of vehicle.
In order to successfully plead the defence of volenti non fit injuria, three things should be
proved concurrently(1)
that the plaintiff freely and voluntarily accepted the risk,
(2)
that he had knowledge of the risk, and
(3)
that he fully appreciated the risk.
The consent must not have been induced by fraud, compulsion, misrepresentation,
mistake, etc. Thus, where a servant is compelled to do some work in spite of his protests,
there is no volenti non fit injuria (Bowater v Rowley Regis Corpn.). The mere knowledge
of the risk is not enough. The plaintiff must also fully appreciate the risk. In other words,
he knowing the risk, agreed to suffer (South Indian Industries Ltd. v Alamelu Ammal).
It is important to note that the defence of consent can be defeated if the plaintiff can
prove foul play, wilful assault or negligence on the part of the defendant. Thus, where a
spectator suffers injury due to negligent act of players or if a surgeon negligently
performs an operation, the defence of volenti cannot be pleaded. Thus the act causing the
harm must not go beyond the limit of what has been consented.
The present problem is based on the case - Hall v Brooklands Auto Racing Club. In that
case, the plaintiff was a spectator at a car race. During the race, there was a collision
between two cars, one of which was thrown away and injured the plaintiff. Held, that the
plaintiff impliedly took the risk of such injury, as any spectator could see that danger was
inherent in the sport.
Similarly, in Woolridge v Summer (1963) 2 Q.B. 43, a photographer , who was taking
photographs at a horse show while standing at the boundary of the arena was seriously
injured by a galloping horse who rounded the bend too fast. It was held that since the
defendants (who owed the horses) had taken due care they were not liable. The duty
towards spectator was the duty of care rather than the duty of skill. The spectator in such
game takes the risk of such damage even though
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Law of Torts
there may have been error of judgment or lapse of skill, unless the participant’s conduct
is in reckless disregard of the spectator’s safety.
Decision of the case in question
P cannot claim damages from D. D can successfully plead the defence of volenti non fit
injuria.
Q.2. (a) P requested X, a car driver to give him lift. X said, “The headlights of the car are
not in order and it is not safe to travel in a car with defective lights." P got in the car
saying, “Thank you, Sir, I gladly share the risk with you.” After a while the car met with
an accident hitting an electric pole and thereby injuring P. It was found in evidence that
the accident occurred despite the pole being clearly visible in the street lights and was
mainly due to absent mindedness on the part of X. P sues X for damages. Will he
succeed?
(b) A snake-charmer, X, was exhibiting the show of snakes on roadside. Many persons
assembled there. At the time of starting the show, he cautioned the spectators that all
snakes are poisonous. Later on, due to slight carelessness, a poisonous snake came out of
the 'peetara' (i.e. charmer’s basket) and started creeping towards a spectator, a boy of 10
years. As soon as the snake reached the boy and was going to bite him, a spectator, B, ran
to save him. He saved the boy, but in doing so, he was bitten by the snake and in
consequence remained ill for two months. B sues X for damages, but X raises the defence
of volenti non fit injuria. How will you decide?
P married S in 1991. Soon after the marriage, the differences arose among them. One
day, he took her for the pleasant trip to Simla. He threw her out of the running train. R,
who was also travelling in the same train, pulled the chain and also jumped to save her.
He suffered injury. He claims damages. Decide.
[L.C. I-94/95]
In a collision between two trains caused on account of the negligence of the Central
Railways, X voluntarily took an active part in rescue operations at the scene of accident.
As a result of the horror experienced there, X suffered a prolonged mental illness
requiring hospital treatment. In an action brought by X,
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Defences against Tortious Liability
the Central Railways pleaded volenti non fit injuria as a defence. Will it succeed? Decide.
[C.L.C.-2001]
A.2.(a) Yes, P will succeed, because P had agreed to suffer the harm that may be caused
due to defective head-lights in the car. P had not consented to the risk that may be caused
due to X’s negligence.
(b) Rescue Cases
These form an exception to the application of the doctrine of volenti non fit injuria. When
the plaintiff voluntarily takes a risk (even of death) to rescue somebody from an
imminent danger created by the wrongful act of the defendant, he cannot be met with the
defence of volenti non fit injuria.
The danger invites rescue. The cry of distress is the summons to relief. The law does not
ignore these reactions. It recognizes them as normal. The wrong that imperils life is
wrong to the imperiled victim; it is a wrong to the rescuer also. The risk of rescue is born
of the occasion for which the negligent person is responsible (Wagner v International
Rail Co.).
In rescue cases, it is immaterial whether the plaintiff acted deliberately from a sense of
moral duty, or on impulse, for the exercise in such a case leaves no choice in acting as he
did. Also it doesn’t matter that the person endangered is one to whom he owes a duty of
protection, as a member of his family, or is a mere stranger to whom he owes no such
special duty (.Haynes v Harwood).
Once it is determined that the act of the rescuer was the natural and probable
consequence of the defendant’s wrong doing which the latter could’ve foreseen there is
no longer any room for the application of the maxim volenti non fit injuria (Baker v T.E.
Hopkins & Sons).
Decision of the cases in question
The ‘first case’ is clearly a rescue case. Act of B was the natural and probable
consequence of the defendant X’s wrongdoing, thus there is no room for the application
of the maxim volenti non fit injuria. Similarly, the ‘second case’ is a rescue case. R can
recover damages. The ‘third case’ is also a rescue case, and the Central Railways will not
succeed.
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Law of Torts
Q.3. (a) D, a driver employed by the owner of a Red Line Bus, had been ordered by his
employer to drive a bus, which to the knowledge of both of them had faulty brakes;
although the legislation on road traffic makes it an offence to run a vehicle with such
brakes and imposes a duty on its owner to maintain the brakes in perfect order. D did
drive the bus and for about a week all went well. On the fateful day, however, the brakes
failed to function and in the resulting collision D was injured severely. D sues for
damages. The employer sets up the defence of 'volenti non fit injuria'. Decide the case.
[C.L.C.-95]
(b) R was employed as an inspector by Armament Inspection Department. R was directed
to report on duty to M/s L and Co., to which she resisted but joined. Before the accident
took place in the premises of L and Co. in which R was injured, the employer had offered
clerical work at a lower wage which she refused. R sues L and Co. for damages. L and
Co. in defence argued that even if R had not agreed at the time she began to work in L
and Co., but she had given her consent subsequently when she refused to accept other
employment offered to her. State the law. Decide. Cite judicial precedents.
[C.L.C.-92]
A.3.(a) Master-Servant Relationship and Defence of Consent
The maxim volenti non fit injuria is one which in the case of master and servant is to be
applied with extreme caution. Indeed it can hardly ever be applicable where the act to
which the servant is said to be volens arises out of his ordinary duty, unless the work for
which he is engaged is one in which danger is necessarily involved. Where a man is
required to undertake a risky operation, it is not enough to show that whether under
protest or not, he obeyed an order, it must be shown that he agreed that what risk there
was should lie on him and not on his master (Bowater v Rowley Regis Corpn.).
When the acceptance or non-acceptance of the risk is left to implication, the workman
cannot reasonably be held to have undertaken it unless he knew of its existence and
appreciated its danger. But assuming that he did so, it cannot be suggested that the mere
fact of his continuing at his work, with such knowledge and appreciation, will in every
case necessarily imply his acceptance (Smith v Baker).
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Defences against Tortious Liability
Further, in the case of breach of a statutory duty by the employer, the maxim ‘‘volenti
non fit injuria'' is no answer to a claim made by the workman against his employer for
injury caused through the breach. The workman cannot be said to volens in such situation
(Wheeler v Mertor Board Mills Ltd). If the workman ignores employer’s instructions and
contravenes statutory provisions thereby causing damage to himself he can certainly be
met with the defence of volenti non fit injuria (Imperial Chemical Industries v Shatwell).
Decision of the case in question
In view of the case-law discussed above, it is clear that the employer cannot set up the
defence of volenti non fit injuria, as the employer acted in a breach of statutory duty
(legislation on road traffic).
(b) A consent obtained under compulsion is no consent in the eyes of law. A free consent
is necessary to evoke the defence of volenti non fit injuria.
In Mrs. Read v J. Lyons and Co. (1947) A.C. 156, Mrs. Read had been employed as an
inspector by the Armament Inspection Department. She had not voluntarily undertaken
the work but had been directed to it under the Essential Work Order. Before the accident,
she had been offered other employment but she had refused to accept this offer as it was a
lower post. It was argued for the defendants that though she may not have ‘volens’ at the
time when she began to work in the factory but when she was offered a lower job and she
didn’t accept this offer, she must’ve taken voluntarily continuing to work in the factory
with its attendant dangers. Held, that the element of compulsion had not entirely vanished
and accordingly the defence failed.
Decision of the case in question
The offer of clerical work at a lower wage doesn’t give a free choice to R, who, therefore
continues to do her job under compulsion and without her consent. The defendant cannot
take the benefit of volenti non fit injuria. R can recover damages.
Q.4. On one winter morning, while the weather was very foggy and visibility was very
poor, M drove from Shakti Nagar to the Dhaula Kuan and on his way had an accident
with L, who was killed as a consequence. L’s heir filed a case against M
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Law of Torts
seeking damages. M pleaded Act of God as a defence. Discuss the liability of M.
[C.L.C-93]
A.4. Act of God
The law recognizes certain situations when the defendant is entirely helpless, in the
sense, an unexpected injury is caused to the plaintiff which could not have been foreseen
and avoided in spite of reasonable care. Act of God or vis major is a defence in such
situations where the injury is caused by the working of natural forces like exceptionally
heavy rainfall, storms, tempests, tides and volcanic eruptions.
As regards the present case, the accident resulted due to foggy weather. Fog is not such a
natural phenomenon that no human foresight could guard against it. On the other hand,
the very act of M in undertaking to drive in poor visibility conditions is a rash and
negligent act.
Furthermore, an act of God must be something overwhelming or extraordinary and not
merely an ordinary accidental circumstance and it must not come from the act of man. A
road accident is generally out of the category of things happening on account of natural
forces.
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3
Negligence
Generally speaking one is responsible for the direct consequences of his negligent acts
where he is placed in such a position with regard to another that it is obvious that if he
does not use due care in his own conduct he will cause injury to another. Negligence
causes risk, danger or harm.
Theories of Negligence
There are two rival theories of the meaning of the term negligence. According to the one,
negligence is a state of mind (subjective theory); according to the other, it is merely a
type of conduct (objective theory).
(1)
Subjective theory - It is given by Salmond. His view is that negligence is culpable
carelessness. Although negligence is not the same as thoughtlessness or inadvertence, it is
nevertheless essentially an attitude of indifference. Negligence essentially consists in the
mental attitude of undue indifference with respect to one’s conduct and its consequences.
A person is made liable on the ground of negligence because he does not sufficiently
desire to avoid a particular consequence - a harm. He is careless about the consequence
and does the act notwithstanding the risk that may ensue. Winfield, an advocate of this
theory, says that ‘as a mental element in tortious liability, negligence usually signifies
total or partial inadvertence of the defendant to his conduct and for its consequences’.
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Law of Torts
(2)
Objective theory - It is given by Pollock. His view is that negligence is an
objective fact. It is not a particular state of mind or form of the mens rea at all, but a
particular kind of conduct. Negligence is a ‘breach of duty to take care’, and to care
means to take precautions against the harmful results of one’s actions and to refrain from
unreasonably dangerous kinds of conduct. To drive at night without lights is negligence,
because to carry lights is a precaution taken by all reasonable and prudent men for the
avoidance of accidents. Pollock says that ‘negligence is the contrary of diligence, and no
one describes diligence as a state of mind’. So it is never a mental state. This view
obtains strong support from the law of tort, where it is clearly settled that negligence
means a failure to achieve the objective standard of the reasonable man. If the defendant
has failed to achieve this standard it is no defence for him to show that he was anxious to
avoid doing harm and took the utmost care of which he was capable. The same seems to
hold good in criminal law.
Reconciliation of the two views
Negligence is sometimes used in one sense (subjective) and sometimes it is used in the
other sense (objective) and, therefore, its meaning depends upon the context in which it is
used. When negligence is contrasted with intention, it is used in the subjective sense. As
the wrongful intention is a state of mind, negligence is also a state of mind. Cases of
negligence, on examination of the defendant’s mind, turn out to be the cases of wrongful
intention. If a father who neglects to provide food to his infant child and if the child dies,
the father may be guilty of wilful murder rather than of mere negligence. In these cases
one can’t distinguish between wrongful intention and negligence without looking into the
mind of the wrongdoer, and observing his mental or subjective attitude towards his act
and its consequences. If one tries to judge them objectively, the two classes of offences
are indistinguishable.
The subjective theory then has the merit of making clear the distinction between intention
and negligence. The wilful wrongdoer desires the harmful consequences, and therefore
does the act in order that they may ensue. The negligent wrongdoer does not desire the
harmful consequences, but in many cases is careless whether they
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Negligence
ensue or not, and therefore, does the act notwithstanding the risk that may ensue. The
wilful wrongdoer is liable because he desires to do the harm; the negligent wrongdoer
may be liable because he does not sufficiently desire to avoid it.
But to identify negligence with any one state of mind is confusion and an
oversimplification. When negligence is contrasted with inevitable accident it means a
particular kind of conduct. In cases where there is no question of wrongful intention but
the point to be determined is as to whether the wrongdoer caused the harm without any
fault on his part, or by his unintentional fault, it is decided on the basis as to whether his
conduct conformed to the standard of a reasonable man. He is liable only when he has not
taken the care which a reasonable man would have taken. In such cases the state of mind
of the wrongdoer is irrelevant and everything is judged objectively.
Meaning and Definition of Negligence
As noted above, negligence has two meanings in law of torts:
(1)
Negligence as state of mind- Negligence is a mode of committing certain torts,
e.g. negligently or carelessly committing trespass, nuisance or defamation. This is the
subjective meaning of negligence advocated by the Austin, Salmond and Winfield. In the
words of Salmond: Negligence essentially consists in mental attitude of undue
indifference with respect to one’s conduct and its consequences.
The negligence is defined as ‘the absence of such care as it was the duty of the defendant
to use’ [Gill v General Iron Screw Colliery Co. (1886) LR 1 CP 612],
(2)
Negligence as a type of conduct- Negligence is a conduct, not a state of mindconduct, which involves the risk of causing damage. This is the objective meaning of
negligence, which treats negligence as a separate or specific tort.
According to Dr. John G. Fleming, “Negligence is conduct that fails to conform to the
standards required by law for safeguarding others (actionable negligence) or oneself
(contributory negligence) against unreasonable risk of injury.”
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Law of Torts
“Negligence is the omitting to do something that a reasonable man would do, or the doing
of something which a reasonable man would not do” [Blyth v Birmingham Water Works
Co. (1856) 25 LJ Ex 213].
Negligence means “careless conduct in commission or omission of an act, whereby
another to whom the plaintiff owed duty of care has suffered damage.” Mis-feasance
(positive action) is wilful, reckless or heedless conduct in commission of a positive act
lawfully done but with improper conduct. Non-feasance (omission) means nonperformance of some act which ought to be performed or omission to perform required
duty or total neglect of duty. In the case of misfeasance, the defendant is the author of the
source of danger to cause damage due to careless conduct, to the person/property of the
plaintiff. He has knowledge that the act may give rise to tort but in the case of
nonfeasance several factors require consideration for giving rise to actionable negligence
[Rajkot Municipal Corpn. v Manjulben Jayantilal Nakum (1997) 9 SCC 552],
In this chapter, negligence has been treated as separate or specific
tort.
Negligence is also of two kinds:
(a)
Advertent negligence - It is called wilful negligence or recklessness also. In this
negligence, the harm done is foreseen as possible or probable, but it is not willed. For
example, a person who drives furiously in a crowded street and causes injury or harm to
persons commits it by advertent negligence. For legal purposes, such negligence is
classed with intention.
(b)
Inadvertent or simple negligence - It is a result of ignorance, thoughtlessness or
forgetfulness. In such negligence the harm caused is neither foreseen nor wilful. For
example, a doctor who treats a patient improperly through negligence.
Negligence connotes inadvertence to the consequences of his conduct which can be a
measure of behaviour where one person had been careless in that he did not behave as a
prudent man would have done whether by advertence or otherwise. The tort of negligence
always requires some form of ‘careless conduct’ which is usually, although not
necessarily, the product of inadvertence. Not every careless conduct
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Negligence
which causes damage, however, will give rise to an action in tort. The negligence lies in
failure to take such steps as a reasonable, prudent man would have taken in the given
circumstances. What constitutes carelessness is the conduct and not the result of
inadvertence. Thus negligence in this sense is a ground for liability in tort [Rajkot
Municipal Corpn. v Manjulben Jayantilal Nakum (1997) 9 SCC 552].
The jurisprudential concept of negligence differs in civil and criminal law. For
negligence to amount to an offence, the element of mens rea must be shown to exist.
Generally speaking, it is the amount of damages incurred which is determinative of the
extent of liability in tort. But, in criminal law, it is not the amount of damages but the
amount and degree of negligence that is determinative of liability. For an act to amount to
criminal negligence, the degree of negligence should be much higher i.e. “gross” or of a
“very high degree.” Negligence which is neither gross nor of a higher degree may
provide a ground for action in civil law but cannot form the basis for prosecution [Jacob
Mathew v State of Punjab AIR 2005 SC 3180],
Essentials of Negligence1
Actionable negligence consists in the neglect of the use of ordinary care or skill towards a
person to whom the defendant owes the duty of observing ordinary care or skill, by which
neglect the plaintiff has suffered injury, to his person or property [Heaven v Pender
(1883) 11 Q.B.D. 503]. The tort of negligence is a tort which can be committed with
respect to both, person and property.
According to Winfield, “negligence as a tort is a breach of a legal duty to take care which
results in damage, undesired by the defendant to the plaintiff’. In an action for
negligence, the plaintiff has to prove the following essentials:
(1)
That the defendant owed duty of care to the plaintiff.
(2)
The defendant made a breach of the duty i.e. he failed to exercise due care and
skill.
(3)
Plaintiff suffered damage as a consequence thereof.
_________________
1.
What is negligence? Discuss its essential ingredients with the help of cases.
[D. U. -2007][L. C. I-93/94/95]
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Law of Torts
(1) Duty of Care to the Plaintiff2
An action for negligence proceeds upon the idea of an obligation or duty on the part of
the defendant to use care, a breach whereof results in the plaintiff’s injury. It is not
necessary that the duty neglected should have arisen out of a contract between the
plaintiff and the defendant. However, the duty may arise by a statute or otherwise. Thus,
the idea of negligence and duty are strictly correlative, and there is no such thing as
negligence in the abstract; negligence is simply neglect of some care which one is bound
by law to exercise towards another. Austin defines negligence thus: “In case of
negligence, a party performs not an act to which he is obliged; he breaks a positive duty.”
For example, if a man is driving on a barren plain, and no other person is near him, he is
at liberty to drive as fast and as recklessly as he pleases. But if he sees another carriage
coming near to him, immediately a duty arises not to drive in such a way as is likely to
cause an injury to that other carriage.
(i)
Legal Duty3
‘Duty of care’ means a legal duty rather than mere moral, religious or social duty. In the
absence of such legal duty, negligence in the popular sense has no legal consequences. It
is not sufficient to show that the defendant was careless; the plaintiff has to establish that
the defendant owed to the plaintiff a specific legal duty to take care. It depends on each
case whether a duty exists.
The duty of care is crucial in understanding the nature and scope of tort of negligence.
Negligence does not entail liability unless the law exacts a duty in the given
circumstances to observe care. Duty is an obligation recognized by law to avoid conduct
fraught with unreasonable risk of damage to others. The question whether duty exists in a
particular
_________________
2.
Examine how and when a duty of care arises, breach of which on part of the
defendant makes him liable in an action for negligence.
[I.A.S.-96]
“Whenever there is a breach of duty there is a cause of action in tort.” Discuss.
[I.A.S.-2001]
“The law takes no cognisance of carelessness, where there is no duty to take care”.
Discuss.
3.
“In the absence of legal duty to take care, negligence has no legal consequences”.
Discuss.
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Negligence
situation involves determination of law. How much of the damage to be compensated by
the defendant should be attributed to his wilful conduct and how much to his wilful
negligence or careless conduct or remissness in performance of duty, are all relevant facts
to be considered in a given act or omission in adjudging ‘duty of care’ [Rajkot Municipal
Corpn. v Manjulben Jayantilal Nakum (1997) 9 SCC 552].
LEADING CASE: DONOGHUE V STEVENSON4 (“SNAIL-IN-THE-BOTTLE
CASE”)
[(1932) A.C. 562]
In this case, a fundamental principle of the English law of negligence was affirmed by the
House of Lords in a majority judgment. The court treated negligence, where there is a
duty to take care, as a specific tort in itself. During the course of judgment, Lord Atkin
re-defined the concept of duty of care. Earlier, in Heaven v Pender (1883) 11 Q.B.D. 503,
it was laid down that under certain circumstances one may owe a duty to another, even
though there is no contract between them. If one man is near to another or near to the
property of another, a duty lies upon him not to do that which may cause a personal
injury to that other or which injures his property.
In the present case, the appellant plaintiff (Donoghue) drank a bottle of ginger beer which
was brought from a retailer
_________________
4.
X, a manufacturer of ginger-beer supplies it to retailer who sold it to A. A gave it
to his friend Miss D. She consumed the contents of the beer. The contents contained the
decomposed remains of a snail which were not, and could not be, detected until the
greater part of the contents of the bottle had been consumed. As a result she became
seriously ill. She sues the manufacturer. How will you decide?
[D.U.-2007][L.C.I
-93]
Discuss the principle of liability for tort of negligence as laid down by Lord Atkin in the
famous case of Donoghue v Stevenson. [D.U.-2009] [L.C. 1-94]
We must take reasonable care to avoid acts or omissions which we can reasonably
foresee would be likely to injure our neighbour. Who, then, in law is my neighbour? How
was this question answered by Lord Atkin in Donoghue v Stevenson? Discuss fully the
product liability of a manufacturer on the basis of the principle laid down in the above
case. [D.U.-2008] [L.C.I-95]
“The liability for negligence is based upon a general public sentiment of moral wrongdoing, for which the offender must pay." Discuss the statement with special reference to
Donoghue v Stevenson.
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Law of Torts
by her friend. The bottle in fact contained the decomposed body of snail, which was
found out by her when she had already consumed a part of the contents of the bottle. The
bottle was of dark opaque glass sealed with a metal cap so that its contents could not be
ascertained by inspection. The plaintiff brought an action against the manufacturer of
beer (Stevenson) to recover damages which she suffered due to serious effects on her
health by shock and severe gastro-enteritis. The plaintiff claimed that it was defendant’s
duty to have a system of work and inspection sufficient to prevent snails from getting into
ginger beer bottles.
The suit was defended on the following grounds:
(1)
that the defendant did not owe any duty of care towards the plaintiff, and,
(2)
that the plaintiff was a stranger to the contract and thus her action was not
maintainable.
The House of Lords rejected both the pleas of the defendant and held that the
manufacturer of the bottle was responsible for his negligence towards the plaintiff. It was
the duty of the manufacturer to use reasonable diligence to ensure that the bottle did not
contain any noxious or dangerous matter.
According to Lord Atkin: “A manufacturer of products, which he sells in such form as to
show that he intends them to reach the ultimate consumer in the form in which they left
him with no reasonable possibility of intermediate examination and with the knowledge
that the absence of the reasonable care in the preparation or putting up of the products
will result in an injury to consumer’s life or property, owes a duty to the customer to take
that reasonable care.”
The House of Lords also rejected the second plea that there was no contractual
relationship between the manufacturer and plaintiff and allowed the consumer of drink an
action in tort. Lord Atkin said: “You must take reasonable care to avoid acts or omissions
which you can reasonably foresee would be likely to injure your neighbour. Who, then, in
law is my neighbour? The answer seems to be - persons who are so
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Negligence
closely and directly affected by my act, that, I ought reasonably to have them in
contemplation, as being so affected when I am directing my mind to the acts or omissions
which are called in question. The rule that you are to love your neighbour becomes in law
‘you must not injure your neighbour'. This appears to me to be the doctrine of privity of
contract.”
Comments - This case thus established that the doctrine of privity of contract do no apply
to a tort action. Thus, the same facts may give rise to both a contractual as well as a
tortuous liability. However, in such cases, it is wrong to assume that just because A is
bound by a contract to B, therefore, the harm resulting from A’s breach of that contract to
C, a third party, can never give rise to a liability in tort on A’s part to C.
The learned Lords who gave a dissenting judgment in this case seem to have been
influenced by the fallacy that because there was no contractual liability, therefore, the
manufacturer was not liable in tort also. This fallacy died a hard death in Donoghue's
case, and was finally buried by the Privy Council four years later in Grant v Australian
Knitting Mills Ltd. (1936) A.C. 85. This case is an authority for opening up new
categories of liability (e.g. manufacturer’s liability). The manufacturer’s liability is also
emphasized in the case of Grant v Australian Knitting Mills.
In Home Office v Dorset Yacht Co. Ltd. (1970 A.C. 1004), Lord Reid observed as
follows: “Donoghue v Stevenson may be regarded as a milestone, and the well-known
passage in Lord Atkin’s speech should, I think, be regarded as a statement of principle.”
In Barnett v Packer & Co. (1940) 3 All ER 575, the defendants were manufacturers of
sweets. A box of sweets manufactured by them was sold to a middleman, who in turn
supplied it to the plaintiff. When the plaintiff was putting the sweets in a displaying tray,
his finger was injured by a piece of wire in one of the sweets. In a suit filed by the
plaintiff, the court held that the defendants were clearly negligent and were, therefore,
liable.
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Law of Torts
In Austin v Great Western Rly. (1867) 2 Q.B. 442, a lady, carrying in her arm her son
(over three years old and subsequently liable to pay half-fare), took a ticket for herself,
but not for her son (S). Due to negligence of the Railways, an accident occurred to the
train, and S was injured. Held, that any passenger who has been injured by the negligence
of a railway company can sue them in tort, if they have invited or knowingly permitted
him to enter the train, whether or not there is also a contract for carriage between him and
the company. Thus, S was entitled to recover damages from the Railway Company, for
he had been accepted as a passenger.]
(ii)
Reasonable Foreseeability of Injury5
Whether the defendant owes a duty to the plaintiff or not depends on reasonable
foreseeability of the injury to the plaintiff. In other words, the duty to take care arises as
soon as there is reasonable probability of danger from the defendant’s conduct. In Heaven
v Pender, held that the duty arises only if a person is near to the person or property of
another.
Standard of a reasonable man - A useful test to decide culpability is to determine what a
‘reasonable man’ (i.e. a man of ordinary prudence or intelligence) would have foreseen
and behaved under the circumstances. The standard of foresight of the reasonable man is
an impersonal or objective test as it is independent of the idiosyncrasies (patterns of
behaviour) of the particular person whose conduct is in question. Some persons are very
cautious while others fail to foresee or disregard even the most obvious dangers. The
reasonable man is presumed to be free both from over-apprehension and from overconfidence. He is a person who is not in a hurry, but is cool and collected and remembers
to take precaution for his own safety even in an emergency.
However, the standard of care of the reasonable man involves in its application a
subjective element as it is the judge who decide what, in the circumstances of the
particular case, the reasonable man would
_________________
5.
“In the tort of negligence, the question as to whether the defendant has acted as a
reasonable man or not depends on many factors." Discuss. [I.A.S.-2001]
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Negligence
have had in contemplation, and what, accordingly, the party sought to be made liable
ought to have foreseen [Glasgow Corporation v Muir (1943) A.C. 448].
In Safdar Husain v Union of India (AIR 1978 All. 53) a Head Clerk of Northern Railway,
kept the cash-on-hand in an iron safe in his office room, placed the key of the safe in a
hidden place inside a wooden almirah and locked it with his own lock. On returning to
duty the next day, he found that the almirah lock had been broken open and the entire
cash was gone. The question was whether he could be said to be guilty of negligence.
Held, that the railway authorities had not provided any place for keeping the key of the
safe by its employees when home, and that Clerk’s act in keeping the safe-key in hidden
place in a locked almirah rather than in his personal custody, according to the consistent
practice of Chief Booking Clerks, did not amount to gross negligence, so as to render him
liable. In fact, he had exercised all the care which was expected of a prudent and
reasonable person in the circumstances.
In Rural Transport Service v Bezlum Bibi (AIR 1980 Cal 165), the conductor of an
overloaded bus invited passengers to travel on the roof of the bus. On the way the bus
swerved on the right side to overtake a cart. One of the passengers on the roof of the bus
was struck by an overhanging branch of a tree. He fell down and died because of injuries.
Held, that there was negligence on the part of both the driver and conductor of the bus.
The court observed that inviting passengers to travel on the top of a overcrowded bus is
itself a rash and negligent act and that apart when passengers were being made to travel
on the roof a great amount of care and caution on the part of the driver was called for
which he failed to show by swerving on the right so close to a tree with over-hanging
branch.
In Davies v Liverpool Corpn. (1949) 2 All ER 175, as the plaintiff was boarding a tramcar belonging to the defendant corporation, an unauthorized person gave the starting
signal. The car started, and the plaintiff fell and was injured. The conductor was not, at
that time, on the platform, which was proper place. It was held that the defendants were
liable, as. the conductor was negligent in not remaining on the platform. He should have
foreseen that any unauthorized person might start the tram.
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Law of Torts
In Farrugia v Grant Western Railway (1947) 2 All ER 565, a truck of the defendant
company was canying a large, tall container. The driver tried to go under a low bridge
and the container was thrown off the lorry, injuring the plaintiff who was running behind
the lorry. The company contended that it was not liable because the plaintiff was
trespassing on the highway, and, because they could not possibly have known of his
presence there. It was held that the defendant company was carrying a potential source of
danger, and owed a duty of care to anyone who might be on the highway, whether
lawfully or unlawfully.
In Sushma Mitra v M.P. State Road Transport Corpn. (1947) A.C. J. 87 (M.P.), the
plaintiff was resting her elbow on the widow sill. A truck coming from the opposite
direction hit her in her elbow as a result of which she received severe injuries. It was held
that the habit of resting elbow on the widow of the bus is so common that it must enter
into contemplation of a reasonable driver. It is the duty of the driver to pass on the road at
a reasonable distance from the other vehicles.
In a normal situation, a person can assume, from the fact that gates of railway level
crossing are open, that there is no danger in crossing the railway track at such level
crossing. When, therefore, a car or a truck is hit by a passing train, the fact that the gates
of the railway crossing were open at the time of the accident is prima facie evidence of
negligence on the part of the Railway Administration. There was negligence on the part
of the administration in not closing the level crossing gate when the train was about to
arrive (Mata Prasad v Union of India AIR 1978 All. 303). It may be observed that the
above observation proceeds on the assumption that the Railway crossing is a manned
crossing. At an unmanned crossing, the driver of a vehicle would be under a duty to take
proper precautions.
(iii)
When the Defendant is Not Liable for Negligence
(a)
When the injury to the plaintiff is not foreseeable, then the defendant is not liable.
In Cates v Mongini Bros. (1917) 19 Bom. L.R. 778, due to some latent defect in the
suspension rod of a ceiling fan fixed in the defendant’s restaurant, it fell on the plaintiff
and she was injured. It was held that since the defendants could not foresee the harm,
they were not liable.
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Negligence
In Glasgow Corpn. v Muir (1943) 2 All. E.R. 44, the managers of the defendant
corporation tearooms permitted a picnic party to have their food in the tearoom. Two
members of the picnic party were carrying a big urn containing 6-9 gallons of tea to a
tearoom through a passage where some children were buying sweets and ice creams.
Suddenly one of the persons lost the grip of the handle of urn and six children, including
the plaintiff, were injured. Held, that the managers could not anticipate that such an event
would happen as a consequence of tea urn being carried through a passage and, therefore,
she had no duty to take precautions. Hence, neither she nor the corporation could be held
liable for injury.
(b)
To establish negligence it is not enough to prove that the injury was foreseeable,
but a reasonable likelihood of the injury has also to be shown. Reasonable foreseeability
does not mean remote possibility. If the possibility of danger emerging is only a mere
possibility which could never occur to the mind of a reasonable man, then there is no
negligence in not having taken extraordinary precautions.
In Fardon v Harcourt (1932) 146 L.T. 391, the defendant parked his car by the roadside
and left a dog inside the car. The dog jumped out and smashed a glass panel. A splinter
from this glass injured the plaintiff while he was walking past the car. Held, that the
accident being very unlikely, the defendant was not liable. The duty is to guard against
reasonable probabilities rather than bare or remote or fantastic possibilities. The
occurrence was of such an unprecedented and unlikely character that according to no
reasonable standard could it be said that it ought to have been foreseen by the most
careful owner of a motor car with a dog in it on a highway.
Similarly, if a plug in a pipeline, which has been working satisfactorily, bursts because of
exceptionally severe frost which could not have been anticipated, and the water floods the
premises of the plaintiff, the plaintiff cannot bring an action for negligence [Blyth v
Birmingham Waterworks Co. (1856) 11 E. 781].
In Bolton v Stone (1951) A.C. 850, a person on road was injured by a ball hit by a player
on a cricket ground abutting on that highway. The ground had been used for 90 years and
during the last 30 years the ball had been hit in the highway on about six occasions but no
one
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Law of Torts
had been injured. Held, that the defendants (committee and members of cricket club)
were not negligent.
In Dr. M. Mayi Gowda v State, II (1996) C.P.J. 307 (Karnt), certain persons having a joyride on an elephant in Mysore Dasara Exhibition Ground got seriously injured when the
elephant became panicky in the rush hours and ran forward. It was found that the
elephant had participated in such rides and festivals for 13 years. Held that there was no
negligence on the part of the opposite parties who had organized the joy-ride. The reason
of the accident was unusual and unfortunate behaviour of the elephant, and therefore, the
complaint was dismissed.
(c)
When the defendant owed a duty of care to persons rather than the plaintiff, the
plaintiff cannot sue even if he might have been injured by the defendant’s act. Thus, the
duty must be owed to the plaintiff. There must be proximity in relationship i.e. parties are
so related that it is just and reasonable that the duty shall exist. In other words, the
relationship between the parties must have been such that the defendant like a reasonable
man ought to have the plaintiff in contemplation while doing the acts of which the
complaint is made. The test of proximity may be described as foreseeability of a
reasonable man.
In Palsgraf v Long Island Railroad Co. (1928) 284 N.Y. 339, a passenger carrying a
package was trying to board a moving train. He seemed to be unsteady as if about to fall.
A railway guard, with an idea to help him, pushed him from behind. In this act, the
package (of fire works) fell resulting in an explosion, as a result of which the plaintiff
was injured. Held, that the guard if negligent to the holder of the package was not
negligent In relation to the plaintiff standing far away (about 25 feet).
In P. Pearl (Exporters) Ltd. v Camden London Borough Council (1983) 3 W.L.R. 769,
the defendants had a broken lock on the front door of their premises. During a weekend,
thieves entered the defendant’s premises and through it, entered the neighbouring
premises of the plaintiffs, whose garments they stole. Held that the defendants did not
owe a duty of care to their neighbours, and were, therefore, not liable for acts of an
independent third party (i.e. the thieves).
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Negligence
(d)
Policy considerations do not negative the existence of a duty to the plaintiff. Such
considerations are material in limiting the persons who can claim that a duty of care (viz.
not to cause economic loss) was owed to them by a person committing a wrong.
In Hill v Chief Constable, West Yorkshire (1988) 2 All ER 238, the Constable was held
not liable to the mother who lost her child at the hands of a murderer who couldn’t be
detected for his earlier murders on account of errors in investigation. Held, that public
policy requires fearless and efficient investigation without the shadow of potential action
for damages for negligence.
(2)
Breach of Duty6
It means not taking due care which is required in a particular case. The law requires
taking of two points into consideration to determine the standard of care required:
(i)
The importance of the object to be attained- The law does not require greatest
possible care but the care required is that of a reasonable man under certain
circumstances. The law permits taking chance of some measure of risk so that in public
interest various kinds of activities should go on.
In Latimer v A.E.C. Ltd. (1953) A.C. 643, due to heavy rain a factory was flooded with
water, which got mixed with some oily substance. The floors in the factory became
slippery. The factory owners spread all the available sawdust but some oily patches still
remained there. The plaintiff slipped and was injured. He sued the defendants and
contented that, as a matter of precaution the factory should have been closed down. Held,
that the risk created was not so great as to justify that precaution. The defendants had
acted reasonably and, therefore, they were not liable.
(ii)
The magnitude of the risk- The degree of care varies according to the likelihood
of harm and seriousness of injury. A person handling a loaded gun is expected to take
more care than a
_________________
6.
“The defendant must not only owe the plaintiff a duty of care, he must be in
breach of it.” In the light of the above statement examine as to how would the court find
out as to whether there is a breach of duty on the part of the defendant or not. Refer to
case law.
[I.A.S.-2011]
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Law of Torts
person carrying an ordinary' stick. The driver of a vehicle has to observe greater care
when he is passing through a school zone, or he finds a blind man, a child or an old man.
The degree of care also depends upon the kind of services offered by the defendant; thus,
a five star hotel which charges high price from its guests owes a high degree of care as
regards quality and safety of its guests.
The amount of care may vary to the greatest extent, while the standard of reasonable man
itself remains the same. Thus, persons who profess to have special skill, or who have
voluntarily undertaken a higher degree of duty, are bound to exercise more care than an
ordinary prudent man. But, the test is the standard of the ordinary skilled man exercising
and professing to have that special skill.
In Smt. Shivkor v Ram Naresh (AIR 1978 Guj 115), two teachers accompanied a group
of 60 boys to a picnic. Both the teachers started taking meals at the same time. Some of
the boys went to a nearby river and one of them, aged 12 years was drowned. It was held
that the teachers were negligent as they did not take proper care of the boys. In such a
case, the test to be applied is the test of what a reasonably careful parent would have done
in like circumstances. Of course, this test would apply only to an extent, as a parent who
takes his boys to such a picnic- spot may ordinarily have to look after two (or three, or
four) boys, whereas here, two teachers were in charge of 60 boys. However, as river
water is always an allurement for young boys, and excessive enthusiasm would prove a
trap, a greater degree of supervision became necessary. Moreover, the danger could have
been foreseen. Thus, reasonable care required that the two teachers ought not to have
started taking their food together, and one of them could have supervised the boys’
movements.
The presence of a small boy, wandering outside the school premises on a busy highway,
at a time when he was in the care of the school authorities, indicated lack of reasonable
precautions on the part of the authorities [Carmarthenshire County Council v Lewis
(1955) 1 All ER 565],
In Nitin Walia v Union of India (AIR 2001 Del 140), a child visitor of Delhi zoo aged 3
years put his hand inside the iron bars where a tigress was kept and his hand was crushed
by the tigress. It was held that the zoo authorities should’ve put iron mesh on the rods and
were liable in damages for the injury and the child was not guilty of any contributory
negligence.
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Negligence
In Glasgow Corporation v Taylor (1922) 1 A.C. 44, poisonous berries were grown in a
public garden under the control of the defendant corporation. The berries looked like
cherries. A child, aged 7, ate those berries and died. It was found that the shrub bearing
the berries was neither properly fenced nor a notice regarding poisonous berries was
displayed. Held that the defendants had not taken proper care and so were liable.7
In Manchester Corporation v Markland (1936) A.C. 360, the Manchester Corporation’s
service water-pipe in a road burst, and caused a pool of water to form on the road. The
water lay unheeded for three days. On the third day, a frost occurred, the water froze, and
on the ice so formed, a motor-car skidded, and knocked down and killed a man. The
Corporation was not informed until after this accident that the service pipe had burst.
Held, that the Corporation was liable in not having taken prompt steps to attend to the
leak, and thus preventing the road from being dangerous to traffic.
In Foster v Gilingham Corporation (1942) All ER 304, a crater created by a bomb had
been fenced by a local authority, and, lamps were placed around it. A strong wind blew
out these lamps and the man on night duty failed to turn up that night. A cyclist collided
with this unit barrier and sustained injuries. It was held that the local authorities were
liable, because if they had kept an obstruction on the road, it was their duty to keep it
lighted at night.
In S. Dhanaveni v State of Tamil Nadu (AIR 1997 Mad 257), the deceased slipped into a
pit filled with rainwater in the night. He caught hold of a nearby electric pole to avert a
fall. Due to leakage of electricity in the pole, he was electrocuted. The respondent, who
maintained the electric pole was considered negligent, and was held liable for the death
of the deceased.
(3)
Damages
It is also necessary that the defendant’s breach of duty must cause damage to the plaintiff.
The plaintiff has also to show that the damage thus caused is not too remote a
consequence of the defendant’s negligence.
_________________
7.
A question based on the facts of this case.
[D.U.-2011]
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Law of Torts
[Note: The law as to damages has been discussed in a separate chapter in the present
book.]
RES IPSA LOQUITUR8
(Proof of Negligence)
As a rule, the onus of proving negligence is on the plaintiff. He must not merely establish
the facts of the defendant’s negligence and of his own damage, but must show that the
one was the effect of the other. There are, however, certain cases when the plaintiff need
not prove that and the inference of negligence is drawn from the facts. Thus, direct
evidence of the negligence is not always necessary and the same may be inferred from
the circumstances of the case. There is a presumption of negligence according to the
Latin maxim ‘res ipsa loquitur’ which means the thing speaks for itself.
When the accident explains only one thing i.e. the accident could not ordinarily occur
unless the defendant had been negligent the law raises a presumption of negligence on the
part of the defendant. In such a case, it is sufficient for the plaintiff to prove accident and
nothing more. The defendant can, however, avoid his liability by disproving negligence
on his part (rebuttal of the presumption of negligence).
The application of the maxim has been explained thus: “There must be reasonable
evidence of negligence, but where the thing is shown to be under the management of the
defendant or his servants, and the accident in such as, in the ordinary course of things,
does not happen, if those who have the management use proper care, it affords reasonable
evidence, in the absence of explanation by the defendant that the accident arose from
want of care” [Scott v London & St. Katherine Docks Co. (1865) 3 H&C 596],
_________________
8.
Write a short note on ‘Res Ipsa Loquitur[D.U.-2007-2009/2011] [I.A.S.-2010]
[C.L.C.-92/94/95/99/2002/2004, L.C.II-94]
What are the conditions of application of the maxim res ipsa loquitur? How it affect the
burden of proof in cases of negligence?
[I.A.S.-91]
“The maxim res ipsa loquitur is not a rule of law but a rule of evidence.” Explain.
[I.A.S-94]
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Negligence
The well-established doctrine of res ipsa loquitur, in connection with proof of negligence,
has been consistently followed in India.
Important Points
(1)
By applying this maxim the burden of proof is shifted from the plaintiff to the
defendant. Instead of the plaintiff proving negligence the defendant is required to
disprove it. The maxim is not a rule of law. It is a rule of evidence benefiting the plaintiff
by not requiring him to prove negligence.
(2)
The maxim applies when- (i) the injurious agency was under the management or
control of the defendant, and (ii) the accident is such as in the ordinary course of things,
does not happen if those who have the management use proper care. There must be no
evidence of the actual cause of the accident.
(3)
The rule that it is for the plaintiff to prove negligence is in some cases, of
considerable hardship to the plaintiff, because it may be that the true cause of the accident
lies solely within the knowledge of the defendant who caused it. The plaintiff can prove
the accident but he cannot prove how it happened so as to show its origin in the
negligence of the defendant. The hardship is avoided to a considerable extent by the
maxim.
(4)
The rule in Rylands v Fletcher is not an illustration of the mere principle of res
ipsa loquitur. The liability arising out of the principle can be repelled by proof that the
defendant was not negligent, whereas under the Rylands rule it is no defence to say that
defendant took every possible precaution to prevent the escape of the injurious thing.
(5)
The principle of res ipsa loquitur has no application where the circumstances in
which the accident has taken place indicate that there must have been negligence but do
not indicate as to who was negligent or when the accident is capable of two explanations.
The story must be clear and unambiguous, and if it tells one of half a dozen possible
stories, the maxim cannot be applied. Also, the maxim does not apply when the facts are
sufficiently known.
(6)
Res ipsa loquitur is a common sense approach, not limited by technical rules, to
the assessment of the effect of evidence in
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Law of Torts
certain circumstances. It means that a plaintiff prima facie establishes negligence where
(i)
it is not possible for him to prove precisely what was the relevant act or omission
which set in train the events leading to the accident, but
(ii)
on the evidence as it stands i.e. in the absence of any evidence from the defendant,
it is more likely than not that the effective cause of the accident was some act or omission
of the defendant.
“The maxim possesses no magic quality. Nor has it any added virtue, other than that of
brevity, merely because it is expressed in Latin. When used on behalf of a plaintiff, it is
generally a short way of saying, “I admit that the facts and circumstances which I have
proved establish a prima facie case of negligence against the defendant.” There are
certain happenings that do not normally occur in the absence of negligence, and upon
proof of these, a court will probably hold that there is a case to answer” [Morris L.J. in
Roe v Minister of Health (1954) 2. Q.B. 66],
The maxim only shifts the onus of proof in that a prima facie case is assumed to be made
out, throwing on the defendant the task of proving that he was not negligent. This does
not however mean that he must prove how and why the accident happened; it is sufficient
if he satisfies the court that he personally was not liable.
Illustrations/Cases
The accident itself constitutes reasonable evidence of negligence in the particular
circumstances. If a brick falls from a building and injures a passerby on the highway, or
the goods while in the possession of a bailee are lost, or a stone is found in a bun, or a bus
going on the road overturns, or death of a person is caused by live broken electric wire in
a street, or portico of a newly constructed hospital building falls down and results in the
death of a person, a presumption of negligence is raised.
In Agya Kaurv Pepsu R.T.C. (AIR 1980 P & H 183), a rickshaw going on the correct side
was hit by a bus coming on the wrong side
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Negligence
of the road. The speed of the bus was so high that it, after hitting the rickshaw, also hit
the electric pole on the wrong side. Held that from these facts the only inference, which
could be drawn, was that the driver of bus was negligent.
Where an advertisement banner attached to a frame overhanging the road fell by a wind
velocity of less than 27 miles per hour, the defendant is clearly negligent and the maxim
is applicable to the case (Manindra Nath Mukherjee v Mathura Das AIR 1946 Cal 175).
Where a person fires an explosive which normally flies perpendicularly to the sky before
it explodes, but it flew at a tangent and fell and burst in the midst of a crowd in a maidan
causing injury to a spectator and it was found that the ejection equipment was defective
and not properly tested, it was held that defendants were negligent. Even if the negligence
is not established, the principle res ipsa loquitur could apply (Balakrishnan v
Subramanian AIR 1968 Ker 151).
Where a bus went off the road uprooting a stone which marked the nearby drain and
attacked a tree 25 feet away from the said stone with such a velocity that its bark was
peeled off and it could be stopped only after covering some distance from the said tree,
the maxim applies (Gobald Motor Services v Veluswami AIR 1962 SC 1).
Where a canal was in the management of the defendant, the State of Punjab, and as a
result of proper care not having been taken of it by the defendant a breach occurred in the
canal and loss was suffered by the plaintiff-cultivator by flooding of his lands, it was held
that the rule of res ipsa loquitur applied and the breach itself was prima facie proof of
negligence (State of Punjab v M/s Modern Cultivators AIR 1965 SC 17).
In Byrne v Boadle (1863) 2 H&C 722, the plaintiff was going in a public street when a
barrel of flour fell upon him from the defendant’s warehouse window. There was no
evidence on the part of the plaintiff as to how the accident happened, beyond the facts
that, while on the road, he was knocked down by the barrel, became unconscious and was
injured. Want of care on the part of the defendants was presumed and it was for him to
show that the same was not for want of care on his part, for the barrels do not usually fall
out from windows unless there is want of care.
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Law of Torts
Pollock C.B. said: “So in the building or repairing a house, or putting pots on chimneys,
if a person passing along the road is injured by something falling upon him, I think, the
accident alone would prima facie be evidence of negligence... I think it apparent that the
barrel was in the custody of the defendant who occupied the premises, and who is
responsible for the acts of his servants who had the control of it: and in may opinion the
fact of its falling is prima facie evidence of negligence, and the plaintiff who was injured
by it is not bound to show that it could not fall without negligence, but if there are any
facts inconsistent with negligence it is for the defendant to prove them.
Thus, if a hammer falls out of a window, it could be a case of somebody’s negligence, or
even mischief. But it is not a case of res ipsa loquitur, because it is not unusual for small
things to so fall out. But, suppose a chair, or a cupboard or a table falls out of a window.
Surely such articles never fall, or should fall, like that. This very fact is itself clear
evidence of somebody’s gross negligence - the fact speaks for itself - res ipsa loquitur.
Mere fall of the black-board in a classroom is not a case of res ipsa loquitur.
Where a bus knocked down the plaintiff (who was seated near his shop), it was argued,
on behalf of the owner of the bus that there was a latent defect in the vehicle, and that the
brakes had suddenly failed and the steering wheel had also gone out of order. The court
observed that notwithstanding the maxim, res ipsa loquitur, it is open to a defendant, in a
given case, to establish that there was no lack of reasonable care on his part, even though
he cannot explain exactly as to how the accident took place. However, the presumption
cannot be rebutted merely by proving latent defects in the vehicle, as the sudden failure
of the brakes and the steering wheel can also be due to carelessness on the defendant’s
part to keep the vehicle in a proper state of repairs. As the defendant had not further
proved that all necessary steps were taken for the proper maintenance and up-keep of the
vehicle, it was held that the plaintiff was entitled to claim damages from the defendant
(Amina Begam v Ram Prakash AIR 1978 All. 526).
In The National Small Industries v Bishambhar Nath (AIR 1979 All. 35), the combustible
material was stored in rooms which were in the exclusive control and supervision of the
defendants. It was also
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Negligence
shown that only the workers of the defendants had access to those rooms, and that they
were in the habit of smoking cigarettes and bid is inside the premises during working
hours. One day, a fire broke out, causing substantial damage. Applying the doctrine, the
court held that, having regard to the common course of natural events and human
conduct, it could be presumed that the fire must have been caused because of some
negligent act of the defendants or its employees.
In Shaymal Baran Saha v State of W.B. (AIR 1998 Cal. 203), the plaintiff (a young boy)
was standing in a queue for purchasing ticket of cricket match. Arrival of very large
number of people into the queue ended in a stampede. The boy trampled under the feet of
panic-stricken crowd. The incident occurred due to failure of Cricket Association
conducting the match and State Govt. to ensure safety/security of people in queue and to
provide proper facilities such as tickets, drinking water and medical relief. There was no
evidence to show that Cricket Association demanded increase in Police arrangement in
view of the large crowd. The defence by State behind the shield of delegated sovereign
power was held to be untenable. The defendants, Cricket Association and State Govt.,
thus, liable in negligence for breach of their lawful duties towards the plaintiff. The
principle of res ipsa loquitur clearly applies here.
LEADING CASE: MUNICIPAL CORPN., DELHI v SUBHAGWANTI9
(“CLOCK-TOWER CASE")
(AIR 1966 SC 1750)
In this case, due to the collapse of the Clock Tower situated opposite to Town Hall in the
main bazar of Chandni Chowk, Delhi, a number of persons died. The Clock Tower
belonged to the Municipal Corporation of Delhi and was exclusively under its control.
The trial court held that it was the duty of Municipal Committee to take proper care of the
building so that
_________________
9.
A clock tower belonging to the Municipal Corporation collapsed. Three persons
died due to collapse of the tower. The clock tower was 80 years old though its normal life
span was only 40 to 45 years. During the course of inspection it was found that the mortar
had lost its cementing power. The legal representatives of the deceased brought an action
against the Municipal Corporation. Decide. [L.C.II-94]
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Law of Torts
they should not prove a source of danger to the persons using the highway as a matter of
right.
The High Court held that the principle of res ipsa loquitur applied to case and that it was
the duty of the Municipal Committee to carry out the periodical examination for the
purpose of determining whether deterioration had taken place in the structure of building
and whether any precaution was necessary to strengthen it. The court found from the
evidence that apart from superficial examination from time to time, there was no
evidence of an examination ever made with a view to seeing if there were any latent
defects making the building unsafe.
In an appeal to the Supreme Court, the appellant’s contention was that the doctrine of res
ipsa loquitur do not apply to the case; that the fall of clock tower was due to an inevitable
accident which could not have been prevented by the exercise of reasonable care or
caution; and that since the defects which led to the collapse were latent, the appellant
could not be held guilty of negligence.
The issue before the Apex Court was whether the Municipal Committee was negligent in
looking after and maintaining the clock tower and was liable to pay damages for the
death of the persons resulting from its fall?
The Supreme Court observed that the normal rule is that it is for the plaintiff to prove
negligence and not for the defendant to disprove it. But there is an exception to this rule
which applies where the circumstances surrounding the thing which causes the damage
are at the material time exclusively under the control or management of the defendant or
his servants and the happening is such as does not occur in the ordinary course of things
without negligence on the defendant’s part.
It was held that the High Court was right in applying the doctrine of res ipsa loquitur in
the circumstances of the present case. The clock tower belonged to the Municipal
Corporation and was exclusively under its control. It was 80 years old but the normal life
of the structure of the top storey of the building,
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Negligence
which had fallen, could be 40-45 years having regard to the kind of mortar used. There
was evidence of the Chief Engineer that the mortar was deteriorated to such an extent that
it was reduced to power without any cementing properties. It was not the case of the
appellant that there was any earthquake or storm or any other natural event which was
unforeseen and which could have been the cause of the fall of the clock tower.
Held, that the fall of clock tower tells its own story in raising an inference of negligence
on the part of the defendant. The court further held corporation guilty of negligence for
not subjecting the clock tower to careful and systematic inspection which it was the duty
of the corporation. Since the defendants could not prove absence of negligence on their
part they were held liable.
The Supreme Court explained the legal position as: “There is a special obligation on the
owner of the adjoining premises for the safety of the structures which he keeps beside the
highway. If these structures fall into disrepair so as to be of potential danger to the
passerby or to be a nuisance, the owner is liable to anyone using the highway that is
injured by reason of the disrepair. In such a case it is no defence for the owner to prove
that he neither knew nor ought to have known of the danger. In other words, the owner is
legally responsible irrespective of whether the danger is caused by a patent or latent
(hidden) defect.”]
In Rajkot Municipal Corpn. v Manjulben Jayantilal Nakum (1997) 9 SCC 552, the
deceased while walking on the footpath of a public road was struck by a roadside tree
suddenly felling on him in a still weather condition resulting in his death. The damages
were claimed from the municipal corporation. The Supreme Court held: “When the
defendant was not in know of the discoverable defect or danger and it caused the damage
by accident like sudden fall of tree, it would be difficult to visualise that the defendant
had knowledge of the danger and omitted to perform the duty of care to prevent its fault.
Further, the conditions in India have not developed to such an extent that corporation can
keep constant vigil by testing the healthy condition of the trees in public places, roadsides, highways frequented by passers-by.” Thus, it was held that the corporation is not
liable for damages.
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Law of Torts
The court clarified: The breach of duty created by a statute, if it results in damage to an
individual prima facie, it is tort for which the action for damages will lie in the suit. The
statutory negligence is sui generis and independent of any other form of tortious liability.
The plaintiff must show that (a) the injury suffered is within the ambit of statute, (b)
statutory duty imposes a liability for civil action, (c) the statutory duty was not fulfilled,
and (d) the breach of duty has caused him injury. However, statutory duty generally is
towards public at large and not towards an individual or individuals and the correlative
right is vested in the public and not in private person, even though they may suffer
damages. Further, there must exist some proximity of relationship, foreseeability of
danger and duty of care to be performed by the defendant towards the plaintiff. It would
be wrong to think that the local/statutory authority always owes responsibility and
continues to have the same state of affairs. It would be an intolerable burden of duty of
care on the authority. If the duty of maintaining constant vigil or verifying or testing the
healthy condition of trees at public place with so many other functions to be performed, is
cast upon it, the effect would be that the authority would omit to perform statutory duty.
In Municipal Corpn., Delhi v Sushila Devi (1999) 4 SCC 317, the plaintiff passing by the
road died due to injury sustained by the fall of a branch of a tree. The Corporation was
sued. The court found the Corporation liable and observed that the law is well settled that
if there is a tree standing on the defendant’s land which is dried or dead and for that
reason may fall or the defect is one which is either known or should have been known to
the defendant then the defendant is liable for any injury caused by the tree’s fall. The
injury was caused due to non-action of the municipality. It is no defence to say that the
Corporation had employed a competent person to keep the premises in safe repairs. The
premises must be maintained in a safe state of repair.
Defences to Negligence
The following defences can be raised in an action for negligence viz.
(a)
Vis major (Act of God); (b) Inevitable accident; (c) Contributory negligence of
the plaintiff; (d) Volenti non fit injuria (Defence of consent)
(e)
Express contract (clause for contracting out of negligence; the courts, however,
construe such exemption clauses very strictly); and
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Negligence
(f)
Judicial acts, executive acts and statutory authority- in very exceptional and
appropriate cases.
[Note: These defences have been discussed in detail elsewhere in the present book.]
(a)
Vis Major
Vis Major (or act of God) is such a direct, violent, sudden, and irresistible act of nature as
could not, by any amount of human foresight, have been foreseen, or, if foreseen, could
not, by any amount of human care and skill, have been resisted. Thus, acts which are
occasioned by the elementary forces of nature, unconnected with the agency of man or
other cause, will come under the category of acts of God, e.g. storm, tempest, lightning,
extraordinary fall of rain/ high tide/ severe frost, etc.
(b)
Inevitable accident
The second defence in an action for negligence is that of inevitable accident. Thus, A is
lying drunk on a roadway. B approaches in a motor-car round a bend in the road, but just
before he reaches the point at which, under ordinary circumstances, he would first see A,
a sheet of newspaper is blown by the wind against his windscreen and materially
obscures his view. He runs over A, and injures him. Here, A cannot succeed, it being a
case of inevitable accident or misfortune.
(c)
Contributory negligence of the plaintiff
The third defence to an action for negligence is that of the contributory negligence of the
plaintiff himself. In certain circumstances a person who has suffered an injury will not be
able to get damages from another for the reason that his own negligence has contributed
to his injury; every person is expected to take reasonable care of himself. Thus when the
plaintiff by his own want of care contributes to the damage caused by the negligence or
wrongful conduct of the defendant, he is considered to be guilty of contributory
negligence.
For example, a pedestrian tries to cross the road all of a sudden and is hit by a moving
vehicle, he is guilty of contributory negligence. In this case, the defendant could
completely escape his liability for the accident, on account of the plaintiff’s negligence
which contributed to his injury. Take another case, if the conductor of a bus invites
passengers
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Law of Torts
to travel on the roof of the bus, and one of the passengers travelling on the roof is hit by
the branch of a tree and falls down and gets killed after the driver swerves the bus to the
right to overtake a cart, there is not only negligence on the part of the conductor and on
the driver’s part (who ignored the fact that there were passengers on the roof and tried to
overtake a cart) but also contributory negligence on the part of the passengers (Rural
Transport Service v Bezlum Bibi AIR 1980 Cal. 165).
(d) Volenti non fit Injuria
No injury is done to one who consents. Everyone is the best judge of his interest and
therefore the one who voluntarily agrees to suffer harm is not allowed to complain for
that and one’s consent is a good defence against oneself. This is so because the harm
voluntarily suffered does not constitute the legal injury. No man can enforce a right,
which he has voluntarily waived or abandoned.
PROFESSIONAL LIABILITY FOR NEGLIGENCE
Every person who enters into a learned profession undertakes to bring to the exercise of it
such care and skill as becomes one belonging to that profession. A surgeon does not
undertake that he will perform a cure; nor does he undertake to use the highest possible
degree of skill; but he undertakes to bring a fair, reasonable, and competent degree of
skill.
(a)
Liability of Advocates for Negligence
Barristers and Solicitor Advocates till recently were immune under the English law from
being sued for professional negligence. But the House of Lords in Arthur J.S. Hall & Co.
v Simons (2000) 3 All ER 673, took away this immunity on the ground that neither
public policy nor public interest now justified its continuance.
In India, a legal practitioner (an advocate, vakil or attorney of any High Court, a pleader,
mukhtar or revenue agent) is liable for any negligence in the conduct of his professional
duties. In M. Veerappa v
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Negligence
Evelyn Squeria (AIR 1988 SC 506), the Supreme Court held that an advocate who has
been engaged to act is clearly liable for negligence to his client.
In Raman Services Pvt. Ltd. v Subhash Kapoor (AIR 2001 SC 207), the apex court held
that if an advocate fails to appear due to strike call given by the bar, he can be made
liable for the costs which the litigant has to pay for setting aside an ex parte decree. The
litigant who suffers entirely on account of his advocate’s non-appearance in court, has
also the remedy to sue the advocate for damages.
(b) Medical Negligence
A doctor when consulted by a patient owes him certain duties, viz. a duty of care in
deciding whether to undertake the case, a duty of care in deciding what treatment to give
and a duty of care in the administration of that treatment. A breach of any of those duties
gives a right of action for negligence to the patient (Phillips India Ltd. v Kunju Punnu
AIR 1975 Bom 306). The court also observed: In an action for negligence against a
doctor, the plaintiff has to prove three things viz.- (i) that the doctor was under a duty to
take reasonable care towards the plaintiff, to avoid the damage complained of, or not to
cause damage to the patient by failure to use reasonable care; (ii) that there was a breach
of such duty on the part of the doctor; and, (iii) that such breach of duty was the real
cause of the damage complained of, and such damage was reasonably foreseeable.
The Rajasthan High Court has held that, in a case against a doctor for damages, if the
plaintiff shows that the doctor was in fact negligent, but fails to prove that any loss or
injury was caused to him by such negligence, he cannot be awarded any damages, and his
claim will be dismissed (Sidraj Dhadda v State of Rajasthan AIR 1994 Raj. 68).
In Bolam v Friern Hospital Management Committee (1957) 2 All ER 118, the court
observed: “The test is the standard of the ordinary skilled man exercising and professing
to have that special skill. In the case of a medical man, negligence means failure to act in
accordance with the standards of reasonably competent medical men at the time.”
In Dr. Lakshman Balkrishna Joshi v Dr. Trimbak Bapu Godbole (AIR 1969 SC 128), the
appellant did not give anesthetic to the patient,
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Law of Torts
a 20 year old boy who had a fractured leg, but contended himself with a single dose of
morphine injection. He used excessive force in going through this treatment, using three
of his attendants for pulling the injured leg of the patient. The treatment resulted in shock
(as the patient was conscious during operation) causing the death of the patient. The
doctor was held guilty of negligence.
In Phillips India Ltd. v Kunju Punnu (AIR 1975 Bom 306), plaintiff’s son, who was
treated for illness by the defendant company’s doctor, died. The plaintiff in her action
contended that the doctor was negligent and had given wrong treatment. The court
observed that the standard of care which the law requires is not an insurance against
accidental slips. It is such degree of care as a normal skilful member of the profession
may reasonably be expected to exercise in actual circumstances of the case in question. It
is not every slip or mistake which imports negligence. Held that the plaintiff could not
prove that the death of her son was due to negligence of the doctor and, therefore
defendants could not be made liable.
In Ram Bihari Lal v Dr. J.N. Shrivastava (AIR 1985 M.R 150), the plaintiff’s wife got
abdominal pain, the defendant doctor advised that this was to be operated for
appendicitis, to which the plaintiff and this wife reluctantly agreed. The patient was put
under chloroform anesthesia. On incision the appendix was found to be normal. The
defendant then made another incision and removed the gall bladder of the patient without
taking her husband’s consent for the same, although he had been waiting outside the
operation theatre. The liver and the kidney of the patient, which were already damaged,
had been further damaged due to the toxic effects of the chloroform, and as a
consequence of the same the patient died on the third day after this operation. Held that
the patient died due to rash and negligent act of the surgeon and therefore he was liable
for damages.
Where the doctor was negligent in not performing the emergency operation, as a result of
which the patient died, he was liable for the death of the patient (Dr. T.T. Thomas v Elisa
AIR 1987 Ker. 42).
In State of Haryana v Smt. Santra (AIR 2000 SC 1488), the question concerned as to
what damages are recoverable in case of unwanted pregnancy resulting from medical
negligence in sterilization
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operation. The Supreme Court noticed that there was no unanimity on this point in
different countries but upheld the plaintiff’s claim both against the doctor and the
Government for damages for rearing up the child up to the age of puberty. In holding so
the court observed that “the damages for the birth of an unwanted child may not be of any
value for those who are already living in affluent conditions but those who live below the
poverty line or who belong to the labour class who earn their livelihood on daily basis by
taking up the job of an ordinary labour, cannot be denied the claim for damages on
account of medical negligence.”
In an English decision -McFarlane v Tayside Health Board (1994)
4
All ER 961 (HL), it was however held that on principle it was not fair, just or
reasonable to impose on the doctor or his employer the liability for damages for the
economic loss of bringing up a healthy child which must be held to fall outside the duty
of care which was owed to the parents. In holding so the House of Lords took into
account that in return for the love and expenses in caring, a healthy child also gives
pleasure and affection to the parents and the value attached to these benefits is
incalculable.
In a recent case, the Supreme Court of India has similarly held. In State of Punjab v Shiv
Ram (AIR 2005 SC 3280), it was held that a claim in tort in case of medical negligence
can be sustained only if there is negligence on part of the surgeon performing the surgery.
Merely because a woman having undergone sterilization operation becomes pregnant and
delivers a child, the operating surgeon cannot be held liable for compensation. Failure
due to natural causes would not provide any ground for a claim. It is for the woman who
has conceived the child to go or not to go for medical termination of pregnancy. If the
couple opts for bearing the child it ceases to be an unwanted child. Compensation for
maintenance and upbringing of such a child cannot be claimed.
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Law of Torts
LEADING CASE: PINNAMANENI NARASIMHA RAO v GUNDAVARAPU
JAYAPRAKASU (AIR 1990 A.P. 207)
In this case, the plaintiff, a student aged 17 years, suffered irreparable damage in the
brain due to negligence of the surgeon and the anesthetist. In this case, a proper diagnosis
was not done; the plaintiff had a minor ailment- chronic nasal discharge, and it was
diagnosed as nasal allergy requiring operation for removal of tonsils. If the surgeon had
not performed the operation, there was every possibility of the plaintiff being saved from
the brain damage.
Although the surgeon was aware that the plaintiff had respiratory arrest, still he carried
on the operation merely because the anesthetist informed him that the patient is fit for the
operation. The anesthetist was also negligent in so far as he failed to administer
respiratory resuscitation by oxygenating the patient with a mask/ bag, which is an act of
per se negligence in the circumstances.
The court observed: “A person engaged in some particular profession is supposed to have
the requisite knowledge and skill needed for the purpose and he has a duty to exercise
reasonable degree of care in the conduct of his duties. The standard of care needed in a
particular case depends on the professional skill expected from persons belonging to a
particular class. A surgeon or anesthetist will be judged by the standard of an average
practitioner of class to which he belongs or holds himself out to belong.”]
A patient is a “consumer” and the medical assistance a “service” and thus the patients
aggrieved by any deficiency in treatment from both private clinics and Government
hospitals, are entitled to seek damages under the Consumer Protection Act. The liability
to pay damages for negligence was not affected by the fact that the medical practitioners
are professionals and are subject to disciplinary control of the Medical Council of India
[Indian Medical Asscn. v V.P. Shantha AIR 1996 SC 550],
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Leading Case: JACOB MATHEW v STATE OF PUNJAB10 [(2005) 6 SCC 1]
Facts and Issue: On 15-2-1995, the informant’s father, late Jiwan Lal Sharma was
admitted as a patient in a private ward of CMC Hospital, Ludhiana. On 22-2-1995 at
about 11 p.m. Jiwan Lal felt difficulty in breathing. The complainant’s elder brother,
Vijay Sharma who was present in the room contacted the duty nurse, who in her turn
called some doctor to attend to the patient. No doctor turned up for about 20 to 25
minutes. Then, Dr. Jacob Mathew, the appellant, and, Dr. Allen Joseph came to the room
of the patient. An oxygen cylinder was bought and connected to the mouth of the patient
but the breathing problem increased further. The patient tried to get up but the medical
staff asked him to remain in bed. The oxygen cylinder was found to be empty. There was
no other gas cylinder available in the room. Vijay Sharma went to the adjoining room and
brought a gas cylinder therefrom. However, there was no arrangement to make the gas
cylinder functional and in- between, 5 to 7 minutes were wasted. By this time, another
doctor came who declared that the patient was dead.
Mainly, the submissions made by the learned counsel for the parties and the interveners
have centred around two issues:
(i)
Is there a difference in civil and criminal law on the concept of negligence? and
(ii) Whether a different standard is applicable for recording a finding of negligence when
a professional, in particular, a doctor is to be held guilty of negligence?
Observations: The court observed: In the law of negligence, professionals such as
lawyers, doctors, architects and others are included in the category of persons professing
some special skill or skilled person generally. A lawyer does not tell his client that the
client shall win the case in all circumstances. A physician
_________________
10. The Supreme Court of India in a recent judgment pronounced, “Doctors cannot be
held criminally liable under Sec. 304-A, Indian Penal Code, unless they are ‘grossly’ rash
or negligent in performing their duties”. Is the judgment in favour of doctors or is it
against the poor and illiterate patients in our country? Give your views with reasons.
[I.A.S.-2006]
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Law of Torts
would not assure the patient of full recovery in every case. A surgeon cannot and does
not guarantee that the result of surgery would invariably be beneficial, much less to the
extent of 100% for the person operated on. The only assurance which such a professional
can give of can be understood to have given by implication is that he is possessed of the
requisite skill in that branch of profession which he is practising and while undertaking
the performance of the task entrusted to him he would be exercising his skill with
reasonable competence. This is all what the person approaching the professional can
expect.
In Bolam v Frierr Hospital Management Committee (1957) 2 All ER 118, McNair, J. laid
down a test in relation to negligence by professionals: A professional man should
command the corpus of knowledge which forms part of the professional equipment of the
ordinary members of his profession. He should not lag behind other ordinary assiduous
and intelligent members of his profession in the knowledge of new advances, discoveries
and developments in his field. He should have such awareness as an ordinarily competent
practitioner would have of the deficiencies in his knowledge and the limitations on his
skill. He should be alert to the hazards and risks in any professional task he undertakes to
the extent that other ordinarily competent members of the profession would be alert. He
must bring to any professional task he undertakes no less expertise, skill and care than
other ordinarily competent members of his profession would bring, but need bring no
more. The standard is that of the “reasonable average”. The law does not require of a
professional man that he be a paragon combining the qualities of polymath and prophet.
The degree of skill and care required by a medical practitioner is so stated in Halsbury’s
Laws of England (4 th Edn., Vol. 30, para 35): Deviation from normal practice is not
necessarily evidence of negligence. To establish liability on that basis it must be shown
(1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and
(3) that the course in fact adopted is one no professional man of ordinary skill would have
taken had he been acting with ordinary care.
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Negligence
The court in the present case observed: Higher the acuteness in emergency and higher the
complication, more are the chances of error of judgment. At times, the professional is
confronted with making a choice between the devil and the deep sea and he has to choose
the lesser evil. The medical professional is often called upon to adopt a procedure which
involves higher element of risk, but which he honestly believes as providing greater
chances of success for the patient rather than a procedure involving lesser risk but higher
chances of failure. Which course is more appropriate to follow, would depend on the
facts and circumstances of a given case.
No sensible professional would intentionally commit an act or omission which would
result in loss or injury to the patient as the professional reputation of the person is at
stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule
of res ipsa loquitur is not of universal application and has to be applied with extreme care
and caution to the cases of professional negligence and in particular that of the doctors.
Else it would be counter-productive. Simply because a patient has not favourably
responded to a treatment given by a physician or a surgery has failed, the doctor cannot
be held liable per se by applying the doctrine of res ipsa loquitur.
A surgeon with shaky hands under fear of legal action cannot perform a successful
operation and a quivering physician cannot administer the end-dose of medicine to his
patient. Discretion being the better part of valour, a medical professional would feel
better advised to leave a terminal patient to his own fate in the case of emergency where
the chance of success may be 10% (or so), rather than taking the risk of making a last
ditch effort towards saving the subject and facing a criminal prosecution if his effort fails.
Such timidity forced upon a doctor would be a disservice to society.
Alan Merry and Alexander McCall Smith in their work Errors, Medicine and the Law
(Cambridge University Press, 2001) similarly opined: For a medical accident or failure,
the responsibility may lie with the medical practitioner and equally it may not. The
inadequacies of the system, the specific
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Law of Torts
circumstances of the case, the nature of human psychology itself and sheer chance may
have combined to produce a result in which the doctor’s contribution is either relatively
or completely blameless. Coupled with the complexities of medical science, the scope for
misimpressions, misgivings and misplaced allegations against the operator i.e. the doctor,
cannot be ruled out. One may have notions of best or ideal practice which are different
from the reality of how medical practice is carried on or how the doctor functions in real
life.
The court, in the present case, made the following conclusions:
(1)
Negligence is the breach of a duty caused by omission to do something which a
reasonable man guided by those considerations which ordinarily regulate the conduct of
human affairs would do, or doing something which a prudent and reasonable man would
not do. Negligence becomes actionable on account of injury resulting from the act or
omission amounting to negligence attributable to the person sued. The essential
components of negligence are three: “duty”, “breach” and “resulting damage”.
(2)
Negligence in the context of the medical profession necessarily calls for a
treatment with a difference. To infer rashness or negligence on the part of a professional,
in particular a doctor, additional considerations apply. A case of occupational negligence
is different from one of professional negligence. A simple lack of care, an error of
judgment or an accident, is not proof of negligence on the part of a medical professional.
So long as a doctor follows a practice acceptable to the medical profession of that day, he
cannot be held liable for negligence merely because a better alternative course of method
of treatment was also available or simply because a more skilled doctor would not have
chosen to follow or resort to that practice or
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Negligence
procedure which the accused followed. When it comes to the failure of taking
precautions, what has to be seen is whether those precautions were taken which the
ordinary experience of men has found to be sufficient; a failure to use special or
extraordinary precautions which might have prevented the particular happening cannot be
the standard for judging the alleged negligence. So also, the standard of care, while
assessing the practice as adopted, is judged in the light of knowledge available at the time
of the incident, and not at the date of trial. Similarly, when the charge of negligence
arises out of failure to use some particular equipment, the charge would fail if the
equipment was not generally available at that particular time (that is, the time of the
incident) at which it is suggested it should have been used.
(3)
A professional may be held liable for negligence on one of the two findings:
either he was not possessed of the requisite skill which he professed to have possessed,
or, he did not exercise, with reasonable competence in the given case, the skill which he
did possess. The standard to be applied for judging, whether the person charged has been
negligent or not, would be that of an ordinary competent person exercising ordinary' skill
in that profession. It is not possible for every professional to possess the highest level of
expertise or skills in that branch which he practices. A highly skilled professional may be
possessed of better qualities, but that cannot be made the basis or the yardstick for
judging the performance of the professional proceeded against on indictment of
negligence.
(4)
The test for determining medical negligence as laid down in Bolam case holds
good in its applicability in India.
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Law of Torts
(5)
The jurisprudential concept of negligence differs in civil and criminal law. What
may be negligence in civil law may not necessarily be negligence in criminal law. For
negligence to amount to an offence, the element of mens rea must be shown to exist. For
an act to amount to criminal negligence, the degree of negligence should be much higher
i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher
degree may provide a ground for action in civil law but cannot form the basis for
prosecution.
(6)
Res ipsa loquitur is only a rule of evidence and operates in the domain of civil
law, especially in cases of torts and helps in determining the onus of proof in actions
relating to negligence. It cannot be pressed in service for determining per se the liability
for negligence within the domain of criminal law.
The court held: We may not be understood as holding that doctors can never be
prosecuted for an offence of which rashness or negligence is an essential ingredient. All
that we are doing is to emphasise the need for care and caution in the interest of society;
for, the service which the medical profession renders to human beings is probably the
noblest of all, and hence there is a need for protecting doctors from frivolous or unjust
prosecutions. Many a complainant prefers recourse to criminal process as a tool for
pressuring the medical professional for extracting uncalled for or unjust compensation.
Such malicious proceedings have to be guarded against.
Decision: It is not the case of the complainant that the accused- appellant was not a
doctor qualified to treat the patient whom he agreed to treat. It is a case of nonavailability of oxygen cylinder either because of the hospital having failed to keep
available a gas cylinder or because of the gas cylinder being found empty. Then, probably
the hospital may be liable in civil law (or may not be - we express no opinion thereon)
but the accused-appellant cannot be proceeded against under the criminal law on the
parameters of the Bolam test.]
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Negligence
FURTHER QUESTIONS
Q.1. Explain the legal principle which is applied by the courts to decide whether a legal
duty to take care exists in a given case or not.
P boarded an over-crowed Red Line bus at the authorized bus stop. Just when he had
placed his foot on the foot board of the bus and had not yet gone in, the conductor in a
very great haste rang the bell and the driver started the bus. The driver made an attempt to
overtake another stationary bus so closely that P got squeezed between the two buses and
sustained serious injuries. P files a suit against the driver and conductor of the bus for
claiming damages suffered by him on account of injuries. Decide. [C.L.C.-94]
A.1. Negligence
Negligence means neglect to take care. Actionable negligence consists in the neglect of
the use of ordinary care/skill towards a person to whom the defendant owes the duty of
observing ordinary care/skill, by which neglect the plaintiff has suffered injury, to his
person or property (Heaven v Pender). The following principles are applied by the courts
to decide whether a legal duty to take care exist or not:(1)
‘Duty of care’ means a legal duty, rather than a mere moral or social duty.
Whether the defendant owes a duty to the plaintiff or not depends on reasonable
foreseeability of the injury to the plaintiff. A useful test to decide culpability is to
determine what a reasonable man would’ve foreseen and behaved under the
circumstances. The reasonable man, is presumed to be free both from over-apprehension
and over-confidence.
Thus, in Sushma Mitra v M.P. State Road Transport Corpn. 1947 A.C. J. 87 (M.P.), the
plaintiff was resting her elbow on the window sill. A truck coming from the opposite
direction hit her in elbow as a result of which she received severe injuries. It was held
that the habit of resting elbow on the window of the bus is so common that it must enter
into contemplation of a reasonable driver. It is the duty of the driver to pass on the road at
a reasonable distance from the other vehicles so as to avoid any injury to the passengers
whose limbs might be protruding beyond the body of vehicle in the ordinary course.
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The driver of a bus which carries passengers owes a duty of care for the safety of the
passengers. He must avoid acts or omissions which can reasonable be foreseen to injure
them and in deciding so he must bear in mind the normal habits of the passengers. When
the vehicles came so close while crossing each other as injure the elbow of the plaintiff, it
must be inferred in these circumstances that both the drivers or one of them was guilty of
negligence in coming too close while crossing each other.
(2)
When the injury to the plaintiff is not foreseeable, then the defendant is not liable.
Thus, in Cates v Mongini Bros., due to some latent defect in the suspension rod of a
ceiling fan fixed in the defendant’s restaurant, it fell on the plaintiff and she was injured.
It was held that since the defendants could not foresee the harm, they were not liable (See
also Glasgow Corpn. v Muir).
(3)
To establish negligence it is not enough to prove that the injury was foreseen, but
a reasonable likelihood of the injury has also to be shown. ‘Reasonable foreseeability’
does not mean remote possibility. Thus, if a plug in a pipeline, which has been working
satisfactorily, bursts because of exceptionally severe frost which couldn’t have been
anticipated, and the water floods the premises of the plaintiff, the plaintiff can’t bring an
action for negligence (Blyth v Birmingham Waterworks Co.) (See also Fardon v
Harcourt).
(4)
Finally, the duty must be owed to the plaintiff and no other person. Thus, in
Bourhill v Young (1943) A.C. 92, a fishwife had just alighted from a tramcar. A speeding
motor cyclist passed on the other side of the tramcar and immediately afterwards collided
with a motor car and was killed. The fishwife did not see the motor cyclist or the accident
but she simply heard the noise of the collision. In consequence she sustained nervous
shock. Held that the cyclist was under no duty to her to foresee that his negligence in
driving at an excessive speed and colliding with a car might result in injury to her for
such a result could not reasonably and probably be anticipated.
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Negligence
Decision of the case in question
The driver and conductor of a bus owe a duty of care for the safety of the passengers.
They were both rash and negligent in starting and overtaking when a passenger had not
fully boarded the bus. It was held so in Ishwar Devi v Union of India (AIR 1996 Del.
183) and Makbool Ahmed v Bhura Lal (AIR 1986 Raj. 176). In these cases, the facts
were similar as given in the present problem. Thus, P can claim damages.
However, where the plaintiff in attempting to board a tram which was in motion, slipped
and fell and received injures, he was not entitled to recover damages as he himself was
negligent (Temulgi Jamshedji v The Bombay Tramway Co.).
Q.2. “Every person who puts on the market a dangerous article must take reasonable
steps in all circumstances”. Explain and illustrate in relation to the liability of a
manufacturer for injury to the consumer.
[L.C.I-97/98]
(a)
The plaintiff purchased wollen garments from a retailer which was manufactured
by the defendant. He suffered from acute dermatitis as a result of wearing wollen garment
because of the presence of excess sulphite which, it was found, had been negligently left
in the cloth in the process of manufacture. The plaintiff filed the suit for damages against
the defendant. How will you decide? [L.C.I-95]
(b)
H, a hair dresser treated X’s hair with a dye and as a result X contracted
dermatitis. The manufacturers of the dye had delivered the dye to H in labelled bottles
together with a small brochure of instruction. Both the label and the brochure contained a
warning that the dye might be dangerous to certain skins and a test of skin was
recommended before it was used. X sues the manufacturers for negligence. Will X
succeed? What would be the liability of H towards X?
[D.U.-2008/2011] [C.L.C.-98]
A.2. The present problems are based on the ‘Manufacturer’s liability’ under the tort of
‘Negligence’. Please see Donoghue v Stevenson in the text of the present chapter.
(a)
In Grant v Australian Knitting Mills Ltd. (1936) A.C. 85, on the similar facts as in
the present problem, the court held that the plaintiff (consumer) can claim damages from
the
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Law of Torts
manufacturer. A consumer could bring action in tort against the manufacturer even
though there was no contract between the manufacturer and consumer. The manufacturer
of chattels owes a duty to the ultimate user or consumer. This duty had its origin in the
law of tort and not in the law of contract.
In a case, with a view to protect the cattle from the adverse effects of floods, a veterinary
surgeon inoculated the cattle of his village. Many cattle fell ill because of the presence of
some deleterious substance in the vaccine used by surgeon, who purchased it from a
chemist. The chemist in turn had bought the same from the manufacturer. In considering
the liability of the manufacturer of the vaccine, the chemist and the surgeon, the court
held that only the manufacturer was liable.
(b) In the case in question, the manufacturers will not be liable for negligence as they
sold the product (dye) with a reasonable possibility of intermediate examination i.e.
provided for instructions before the use of the dye. The hair dresser, H, however, will be
liable for negligence as he failed to follow the instructions while using the dye. A
manufacturer will not be liable where the retail dealer had an opportunity of inspection
and could by a simple test have ascertained the unsuitability of the goods for the purpose
for which they were sold [Kubach v Hollands (1937) 3 All ER 907],
Q.3. Study very carefully the following two situations:
Situation A: While playing on a cricket ground owned by the defendant, a batsman hit the
ball so hard that it went over the boundary wall and hit the plaintiff walking on an
adjoining street. In the history of the eighty year old ground the ball had been so hit out 5
or 6 times.
Situation B: Trespassing children used to play football in an open area belonging to the
defendant adjoining a busy road, in the absence of a high boundary wall the ball used to
go on the road frequently and children used to go there to fetch the ball back. One day the
ball was shot out on the road where it hit a scooter driver causing him to fall and suffer
injuries.
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Compare the tortious liability of the defendants in above mentioned situations. Give
reasons and cite case-law.
[I.AS.- 94]
A was going on a motor-cycle on a road adjoining a piece of land owned by B. Some
children were playing foot-ball on that land with the B’s permission. The ball, during the
play, crossed the boundary of the land and went on to the road hitting A, resulting in the
death of A. A suit was filed against B on the ground that B was negligent in allowing the
children to play on his land without taking proper precautions as to prevent the ball from
going to the road. Decide B's liability.
[C.L.C.-97]
A.3. To establish negligence it is not enough to prove that the injury was foreseeable, but
a reasonable likelihood of the injury has also to be shown, because “foreseeability does
not include any idea of likelihood at all.” The duty is to guard against probabilities rather
than bare possibilities. In Fardon v Harcourt, Lord Dunedin said that “if the possibility of
danger emerging is only a mere possibility which could never occur to the mind of a
reasonable man, then there is no negligence in not having taken extraordinary
precautions. People must guard against reasonable probabilities but they are not bound to
guard against fantastic possibilities.”
If somebody suddenly came in front of a fast moving car without any warning to the
driver, the driver cannot be made liable for negligence (Sukhraji v State R.T.C., Calcutta
AIR 1966 Cal. 620).
In Bolton v Stone (1951) A.C. 850, a person on road was injured by a ball hit by a player
on a cricket ground abutting on that highway. The ground was enclosed on that side by a
7-feet high fence, the top of which owing to a slope stood 17 feet above the level of the
pitch. The wicket from which the ball was hit was about 78 yards from the fence and 100
yards from the place where the injury occurred. The ground had been used for 90 years
and during the last 30 years the ball had been hit in the highway on about six occasions
but no one had been injured. Held that the defendants (committee and members of cricket
club) were not negligent because the chance of a person ever being struck even in a long
period of years was very small and even the likely risk created was not substantial.
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Law of Torts
Lord Reid in that case said: ‘The test to be applied here is whether the risk of damage to a
person on the road was so small that a reasonable man in the position of the defendants
considering the matter from the point of view of safety, would’ve thought it right to
refrain from taking steps, to prevent the danger. In considering the matter it would be
right to take into account, not only how remote is the chance that a person might be
struck, but also how serious the consequences are likely to be if the person is struck.”
Thus, in the Situation A, the defendant cannot be held liable in a tort action. But in the
Situation B, the defendant is liable for negligence in not erecting a high boundary wall or
stopping children to play there. The football used to go on the road frequently and a
football can cause serious consequences if it hit a person, especially while driving. Thus,
there is a reasonable likelihood of the injury. The defendant was thus negligent in not
preventing the danger.
Q.4. A notorious criminal murdered several persons in the city of Delhi. The Delhi Police
failed to identify and apprehend him. The criminal killed another person, M. The parents
of M sued Delhi Police for its breach of duty towards the members of the public. Will
they succeed in their action? Decide.
A.4. There are three requirements necessary to establish a ‘duty of care’. They are: (i)
foreseeability of harm, (ii) proximity in relationship i.e. parties are so related that it is just
and reasonable that the duty should exist, and (iii) policy considerations do not negative
the existence of a duty.
In Hill v Chief Constable, West Yorkshire (1988) 2 All ER 238, the Constable was held
not liable to the mother who lost her child at the hands of a murderer who couldn’t be
detected for his earlier murders on account of errors in investigation. The House of Lords
held that the police did not owe any general duty of care to the individual members of the
public to identify and apprehend an unknown criminal even though it may be reasonably
foreseeable that harm was likely to be caused to a member of the public if the criminal
was not defected and apprehended.
It was again laid down that “foreseeability of likely harm is not in itself a sufficient test
of liability in negligence. Some further investigation
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Negligence
is needed to establish proximity of relationship”, which was lacking in the case. It was
also held that public policy requires fearless and efficient investigation without the
shadow of potential action for damages for negligence. Thus, in the present case, the
parents of M will not succeed in their action.
Q.5. BPL Sanyo, a company, erected huge hoarding displaying their products at a road
trisection. On a windy day the hoarding fell down and seriously injured a cyclist going
alongside the road. He has no proof of negligence. Will he succeed in action against the
company? Decide.
[L.C.II-97]
A.5. Res ipsa loquitur
Ordinarily, mere proof that an event or accident, the cause of which is unknown, has
happened is no proof of negligence. The maxim res ipsa loquitur means that an accident
may by its nature be more consistent with its being caused by negligence for which the
defendant is responsible than by other causes, and that in such a case the mere fact of the
accident is prima facie evidence of such negligence.
Merely proving (by the defendant) that there occurred some events like heavy rain or
wind or flood before the event had happened is not enough. To rebut the presumption of
negligence it has also got to be proved that to ward off the evil consequences of such
events necessary preventive measures have been taken.
In S.Vedantacharya v Highways Dept, of South Arcot (1987 CJ 783), a bus plunged into
a channel after a culvert on the highway maintained by the Highway Department of the
Government gave way, resulting in the death of the plaintiff’s son. The State Government
tried to rebut the presumption by proving that there were very heavy rains during the last
15 days; further the culvert was in a sound condition on the previous day and the normal
traffic had also passed through it. The Supreme Court held that the Highway Department
had not made suitable provisions for straightening the culvert in order to prevent such
happening in the event of heavy rain and flood, and had thus failed to rebut the
presumption of negligence by proving, taking care on its part.
In Manindra Nath Mukherjee v Mathura Das (AIR 1946 Cal. 175) an advertisement
banner attached to a frame overhanging the road fell by a wind velocity of less than 27
miles per hour, the defendant was
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Law of Torts
held to be clearly negligent. Similarly, held in Municipal Corpn. of Delhi v Subhagwanti
(AIR 1966 SC 1750) (‘Clock-tower case”). Thus, in the case in question, the plaintiff will
succeed in his action against the company.
Q.6. Whether the maxim ‘res ipsa loquitur" applies in the following cases? Give reasons
with your answer. Cite judicial precedents.
(1)
Where the two buses brushed each other in such a way that the left hands of two
passengers travelling in one of these buses were cut off below the shoulder joint.
(2)
Where on a narrow road, having ditches on its two sides, a child suddenly comes
on the road and the driver of a bus swerved the bus to the right to save the child but the
child was hit by the bus and he died.
(3)
Where the tyres of a taxi burst, the tyres being old and unroadworthy and the
speed of taxi was excessive.
(4)
Where a brick falls from a building and injures a passerby on the highway.
(5)
Where a person was hit and knocked down when the bus was being reversed at
the bus stop where he was waiting for the bus.
A.6. (1) The accident itself speaks volumes for the negligence on the part of drivers of
both the vehicles. The maxim res ipsa loquitur applies (Karnataka State R.T.C. v
Krishnan AIR 1981 Karnt. 11).
(2)
It does not lead to a clear inference of negligence on the part of the driver. At best
what could be assumed against the driver was misjudgment on his part. The maxim is not
applicable (Syed Akbar v State of Karnataka AIR 1979 SC 1848).
(3)
The maxim clearly applies (Gangaram v Kamlabai AIR 1979 Karnt. 106).
(4)
The incident raises a presumption of negligence. The maxim applies.
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Negligence
(5)
Where a bus is being reversed in a place (a bus stand), where there are bound to
be number of persons waiting for the buses, the driver and conductor of the bus are
expected to take extreme care and caution. The bus being under the sole care and
management of these persons the accident would not have occurred in the ordinary
course but for their negligence. The maxim res ipsa loquitur applies (Kannu Rowther v
Kerala State R.T.C. AIR 1975 Ker. 109)
Q.7. Kumari Alka, aged 6 years, was residing with her parents in a residential quarter
attached to the Shakti Nager Telephone Exchange, Delhi. The defendant, Union of India,
had installed a water pump in a room near the residential quarter. The equipment was
attended by a person retained to look after the pump while it was running. One day
Kumari Alka was playing in the compound. The water pump though running was lying
open and unattended. Kumari Alka did not realize the nature and consequences of the
danger and went in the pump room. The moving wheel of the motor allured her and she
put her hand on the belt of the pump, which was also without cover. Kumari Alka
suffered injuries and the two fingers of her right hand were completely damaged. Kumari
Alka files a suit through her father claiming damages. State the law. Decide, giving
reasons.
[C.L.C.-95]
There is negligence on the part of the defendants in leaving the pump room open and
unattended. The water pump being installed near the residential quarters, it was
foreseeable that a child could get hurt by playing with the motor. Thus, the defendants
owed a duty of care to the plaintiff, which they failed to fulfill.
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4
Nervous Shock
Nervous Shock: Reasonably Foreseeable Consequence of Negligence1
Nervous shock literally means ‘shock of the nerve and brain structures of the body.’
The common law gives no damages for grief, emotional distress, anxiety and depression.
Under ‘nervous shock’, a claim for damages can be made without showing direct impact
or fear of immediate personal (bodily) injuries. Thus, it provides relief when a person
may get physical injury not by an impact e.g. by stick, bullet, etc., but merely by a
nervous shock through what he has seen or heard. But it is only the shock, which can be
measured by direct consequences on bodily activity, which can form the basis for an
action. Causing of nervous shock itself is not enough to make it an actionable tort, some
injury or illness must take place as a result of emotional disturbance, fear or sorrow.
The rationale behind is that the body is controlled by its nervous system and if by reason
of an acute shock to the nervous system the activities of the body are impaired and it is
prevented from functioning normally, there is a clear “bodily injury”.
__________________
Discuss the law relating to Nervous Shock with the help of decided cases.
[L. C. I-93/94/95/2000/2003/2005]
Discuss critically the law relating to tortious liability for nervous shock. [D.U.-20072009]
Discuss the historical development of the law relating to 'Nervous Shock.'
[D.U.-2011]
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Nervous Shock
It may be noted that this branch of law is comparatively of recent origin. The courts have
been quite reluctant to award damages for emotional disturbances, such as the difficulty
of proving the link between the defendant’s conduct and the shock to the plaintiff, the
risk of fictitious claim and excessive litigation. It was felt that no action would lie for
mere mental anguish or suffering or emotional distress, without visible and provable
illness, as it was not capable of being assessed as measurable damage. But of late, the
trend of judicial decisions is in favour of regarding mental shock as real a damage to the
sufferer as a broken limb- less obvious to a layman, but now-a-days equally ascertainable
by the physician.
The nervous shock may be caused by words or act of the defendant. It may be induced by
some accident due to the defendant’s negligence or on account of a false statement
willfully made or due to intimidation (intentional wrongdoing). In such a case, the
question is whether the shock and illness are in fact the natural and direct consequences
of the wrongful act or default; if they are, the illness, and not the shock, furnishes the
measurable damage.
The plaintiff could suffer nervous shock by witnessing (seeing or hearing) personal injury
(or an accident) or destruction of his property caused by the defendant’s wrongful act.
Under the cases of nervous shock, the plaintiff has to prove the following things:
(i)
He has to show the necessary chain of causation between his psychiatric illness
(nervous shock) and the death or injury of one or more third parties caused by the
defendant’s wrongful act. Physical injury is not necessary.
(ii)
The plaintiff need not be in the area of physical injury to himself, it is enough that
he is so placed that a shock could be caused to him by his seeing or hearing something.
In other words, the plaintiff must be so placed where injury through nervous shock can be
foreseen by a reasonable man (Bourhill v Young 1943 A.C. 92).
(iii)
The plaintiff will have to show close relationship of love and affection with the
primary victim and also that his proximity to the accident was sufficiently close in time
and space.
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However, it has been held that the primary victim need not be a near relative of the
plaintiff. Thus, a man who came up on a scene of serious accident for acting as a rescuer,
when suffered a nervous shock, was allowed to claim damages [Chadwick v British
Transport Corpn. (1967) 1 WLR 912], Also, where a crane driver, the plaintiff, suffered a
nervous shock when he saw that by the breaking of a rope of crane its load fell into the
hold of a ship where some men were at work, was allowed damages when the rope had
broken due to the negligence of the defendants [Dooley v Cammell Laird & Co. (1951) 1
Llyod’s Rep. 271].
However, plaintiffs, who suffered nervous shock when disaster at a football match was
televised live and in news bulletins but without depicting the suffering or dying of
recognizable individuals, were held not entitled to damages [Alcock’s case (1991) 4 All
ER 907].
(iv)
Damages for nervous shock were not limited to psychiatric damage resulting from
witnessing personal injury, but could be recovered where the plaintiff witnessed
destruction of his property caused by the defendant’s wrongful act [Attia v British Gas
Plc. (1987) 3 All ER 455],
Illustrations/ Cases
Victorian Railways Commissioner v Coultas (1888) L.R. 13 A.C. 322 - The gate-keeper
of a railway company negligently invited the plaintiffs, a husband and his wife, to drive
over a level crossing when it was dangerous to do so, and their buggy was nearly, but not
quite, run down by passing train. The wife fainted and received a serious nervous shock,
leading to a severe illness. On a suit filed by the plaintiffs for damages, the court held that
the damage was too remote to be recovered. The court did not recognise injury caused by
a shock sustained through the medium of ear or eye without direct contact.
However, the ruling in Victorian Railways’ case has not been followed in subsequent
cases like Hambrook v Stokes and King v Phillips.
Dulieu v White and Sons (1901) 2 K.B. 669 - The defendant’s servants negligently drove
a horse van into a public house. The plaintiff, a pregnant woman, was standing behind the
bar of that house. The
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plaintiff in consequence sustained a nervous shock and became seriously ill and gave
premature birth to a child, who in consequence of the shock sustained by the plaintiff was
born an idiot. Held, that the defendant was liable, as the premature child birth with the
physical pain and suffering which accompanied it was a natural and direct consequence
of the shock.
In this case, however, held that it was not every nervous shock occasioned by negligence
and producing physical injury to the sufferer which would give rise to an action for
nervous shock, the shock must be such as “arises from reasonable fear of immediate
personal injury to oneself” (This ruling was overruled in later cases). In the present case,
the court found that the negligent driving of the defendant’s servants reasonably and
naturally caused nervous shock to the plaintiff by her reasonable apprehension of
immediate bodily hurt.
Janvier v Sweeney (1919) 2 K.B. 316 - The defendant, a private detective, after making
false statements to the plaintiff, used threats to her, with the result that she became
seriously ill. It was held that the defendant was liable.
LEADING CASE: HAMBROOK V STOKES BROS.
[(1925) 1 K.B. 141]
In this case, held, that it is not necessary that shock must be such as arises from
reasonable fear of immediate personal injury to oneself. The defendant’s servants left a
motor lorry at the top of steep street unattended, with the engine running. The lorry
started off by itself and ran violently down the incline.
The plaintiff’s wife, who had been walking up the street with her children, had just parted
with them a little below a point where the street made a bend, when she saw the lorry
rushing round the bend towards her. She became very frightened for the safety of her
children, who by that time were out of sight round the bend. When told by some
bystander that a child answering the description of one of her children had been injured,
she suffered nervous shock which resulted in her death.
The defendants were held liable even though the lady suffering the nervous shock was
not herself within the area of physical injury. It was held that, on the assumption that the
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shock was caused by what the woman saw with her own eyes, as distinguished from what
she was told by bystanders, the plaintiff was entitled to recover, notwithstanding that
shock was brought about by fear for her children’s safety, and not by fear for her own.
The court in this case, thus, disapproved the ruling stated in Dulieu v White. Bankes, L.J.
gave an illustration: “Assume two mothers are crossing this street at the same time when
this lorry comes thundering down, each holding a small child by the hand. One mother is
courageous and devoted to her child. She is terrified but thinks only of the damage to the
child and not at all about herself. The other woman is timid and lacking in the motherly
instinct. She is also terrified but thinks only of the damage to herself and not at all about
her child. The health of both mothers is seriously affected by the mental shock
occasioned by fright. Can any real distinction be drawn between the two cases? Will the
law recognize a cause of action in the case of less deserving mother and none in the case
of more deserving one? I think, not.”]
Ownes v Liverpool Corpn. (1939) 1 K.B. 394 - A funeral procession was going along a
road, a tram-car negligently driven by the defendant’s servants violently collided with a
hearse and caused the coffin to be overturned as a result of which the mourners (relatives
of the dead man) at the funeral suffered severe mental shock. The mourners were allowed
damages for mental shock, although there was no apprehension, or actual sight, of injury
to a human being.
Lords Wright and Porter have, however, disapproved of the above view in Bourhill v
Young (1943) A.C. 92.
LEADING CASE:BOURHILL (OR HAY) v YOUNG2 [(1943) A.C. 92]
In this case, a motor cyclist, while negligently driving at an excessive speed, collided
with a motor-car and was killed. The plaintiff, a fish-wife, standing about 45 feet from
the point of impact heard the noise although she did not see the accident.
__________________
2.
A question based on the same facts.
[L.C.II-94]
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After the body of the motorcyclist had been removed the fishwife happened to go to the
scene of the accident and saw the blood on the road. She suffered fright resulting in
severe nervous shock. At that time she was eight months pregnant and about a month
later the child was stillborn, owing to the injuries sustained by her. She sued the personal
representatives of the motorcyclist.
The House of Lords observed that “the crude view that the law should take cognizance
only of physical injury resulting from actual impact has been discarded. It is now well
recognized that an action will lie for injury by shock sustained through the medium of the
eye or ear without direct contact.” In the present case, however, the deceased could not be
expected to foresee any injury to the plaintiff and, therefore, he did not owe any duty of
care to her and as such his personal representatives could not be made liable. The duty of
the motorcyclist on the public road to other persons using it was to drive with such
reasonable care as would avoid the risk of injury (including injury by nervous shock) to
such persons as he could reasonably foresee might be injured by his failure to exercise
that care. The plaintiff was not within the area of potential danger arising as the result of
his negligence and, accordingly, he owed no duty of care to her.
This result was reached on the reasoning that “the driver of a car or vehicle even though
careless is entitled to assume that the ordinary frequenter of the streets has sufficient
strength to endure such incidents as may from time to time be expected to occur in them,
including noise of a collision and sight of injury to others, and is not to be considered
negligent towards one who does not possess the customary phlegm.”
The court stated that “a man is not negligent in the air”. The duty only arises towards
those individuals of whom it may be reasonably anticipated that they will be affected by
the act which constitutes the alleged breach. In the present case, the plaintiff was not
involved in the accident and she even did not see the accident, being far away from it.
The motorcyclist could be held to be negligent only with the occupants of the motor car
or any person near or about the place of accident.
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LEADING CASE: KING v PHILLIPS3 [(1953) 1 Q.B. 429]
In this case, a taxi driver backed his taxicab negligently and ran into a child on a tricycle
immediately behind him, slightly injuring him. The child’s mother, who was in her
house, 70 or 80 yards away, heard him scream and looking out of a window saw the cab
back into a tricycle, but she could not see the child. She suffered nervous shock.
In an action by her for damages, it was held that the test of negligence vis-a-vis the
mother was whether the taxi driver could reasonably have foreseen the risk of damage to
her. According to Singleton L.J., “The driver owed a duty to the boy, but he knew
nothing of the mother, she was not on the highway - he could not have known that she
was at the window, nor was there any reason why he should anticipate that she would see
his cab at all.” Held that the mother was wholly outside the area of reasonable
apprehension and the defendants were not liable. “There is no such thing as negligence at
large: the liability only arises where there is a duty to take care and where failure in that
duty has caused damage.” The court thus placed reliance on the judgment in Bourhill v
Young case.
The facts in this case do not appear to be much different from those in Hambrook case.
The court observed that though in Hambrook case and the present case too, the mother
was not herself in any personal danger, but in Hambrook case the mother was in the street
and here she was at the window of the house which although might not make any
difference but the shock in this case is too remote to give a cause for action.
__________________
3.
A, the driver of a car, B, his friend, and B’s son were travelling together. They
stopped for petrol and A asked B to go into the office to pay. B and his son got out of the
car and while B was in office, A negligently backed the car into B’s son. B, who was
hardly a few yards away in the office, heard the boy's screams and rushed to help him. He
saw the boy injured by the car and suffered nervous shock followed by serious illness. B
filed a suit for damages against A. How will you decide? [L.C.I-93/95]
A question based on the facts of this case. [D.U-2007]
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The slow backing of the taxi was clearly different from violent running of unattended
lorry which could reasonably shock the mother of children in the danger area.
For the purpose of an action for nervous shock a person need not be in the area of
physical injury to himself, it is enough that he is so placed that a shock could be caused to
him by his seeing or hearing something. It therefore, appears that the case of King v
Phillips requires consideration (Winfield).]
Halligua v Mohansundaram (1951) 2 MLJ 471 - The plaintiff who was travelling with her
husband in a taxi, sustained injuries consequent on a collision between the taxi and a tram
car. The issues were: Did the plaintiff suffer any bodily or a mental injury as a result of
the accident? Whether an insurance company evades liability for damages for nervous
shock on the strength of a clause in the policy which makes the company legally liable to
pay in respect of death or “bodily injury” to any person?
The Madras High Court held that the theory that damages at law could not be proved in
respect of personal injuries unless there was some injury which was called “bodily” or
“physical”, but which necessarily excluded an injury which was only “mental” is wrong
at the present day. The body is controlled by its nervous system and if by reason of an
acute shock to the nervous system, the activities of the body are impaired and it is
prevented from functioning normally, there is clear “bodily injury”. The insurance
company cannot seek to evade liability for damages for such nervous shock.
The court, following the Hambrook’s case, appreciated the difficulty in assessing the
damages claimed on the basis of nervous shock. It is only shock of such a description
which can be measured by direct consequence on bodily activity which can form the
basis for action in damages. It is not possible to lay down any hard and fast rule and each
case has to be dealt with on its own merits. The measure of damages, in a case of this
type is difficult to assess since nervous complexes of persons are different and so are
their reaction to violent shock and even to physical injury.
Schneider v Eisovitch (1960) 2 Q.B. 430 - In this case, Mr. S and Mrs. S were involved
in an accident caused by Mr. E’s negligent driving. Mr. S was killed in the accident and
Mrs, S was injured and rendered
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unconscious. After regaining her consciousness, Mrs. S was told of the death of her
husband, and suffered nervous shock on hearing the news. Held that she could recover
damages for shock as well as for her other injuries.
LEADING CASE: MCLOUGHLIN V O’ BRIAN [(1982) 2 All ER 298]
In this case, the plaintiff’s husband and three children were involved in a road accident
which was caused by the negligence of the defendants. One child was killed and the
husband and two other children were severely injured. The plaintiff at the time of the
accident was two miles away. After being told of the accident, the plaintiff was taken to
the hospital where she saw the injured husband and children and heard about the death of
her daughter. She suffered severe nervous shock. The House of Lords allowed the
plaintiff’s claim for damages for nervous shock even though she was not at or near the
scene of the accident at the time or shortly afterwards, the nervous shock suffered by her
was a reasonably foreseeable consequence of the defendant’s negligence.
The court held that some limitation should be placed upon the extent of admissible claims
under the ‘nervous shock’, as a ‘shock’ is capable of affecting a wide range of people. In
comparison to the close members of the family claiming for the shock, the ordinary
bystanders’ claims are not recognized because the defendant cannot be expected to
compensate the world at large. As regards proximity to the accident, this must be close in
both time and space (to prove the fact and consequence of the defendant’s negligence).
However, to insist on direct and immediate sight or hearing would be impractical and
unjust and the one who, from close proximity, comes very soon upon the scene should
not be excluded (“aftermath” doctrine; by analogy with “rescue” situations). Normally, a
parent or a spouse could be regarded as being within the scope of foresight and duty.
The court, in this case, relied on the test of ‘reasonable foreseeability’. Regarding the
question whether the law should,
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as a matter of policy, define the criterion of liability in such cases, by reference to some
other test, it observed that a policy narrowing the scope of the negligent tortfeasor’s duty
must be cogently and intelligibly justified and must be capable of defining the
appropriate limits of liability.]
Hevican v Ruane (1991) 3 All ER 65 (QBD) - The plaintiffs son was killed when the
school minibus in which he was travelling collided with a lorry as the result of the
minibus driver’s negligence. The plaintiff was told shortly after the collision that the
minibus had been involved in a serious accident and was driven to a police station where
he was told that his son was dead. He then went to the mortuary, where he saw his son’s
body. He continued working for about another two months but found he was unable to
cope and was made redundant. He was diagnosed as suffering from continuing reactive
depression which prevented him from returning to work. He brought an action against the
minibus driver’s estate claiming damages for his reactive depression.
The court held in favour of the plaintiff. It observed that the defendant’s duty must
depend on reasonable foreseeability and must necessarily be adjudicated only upon a
case-by-case basis. What has to be reasonably foreseeable as a likely consequence of bad
driving is emotional trauma or nervous shock to near relatives of those likely to be killed
or injured by negligent driving. A plaintiff who sustains a mental shock as a predictable
result of learning of a loved one’s death or injury and in consequence becomes ill either
in the mind, as here, or in the body, for example by suffering a heart attack, is entitled to
recover damages against a defendant whose negligent act caused the death or injury.
Ravenscroft v Rederiaktiebolaget Transatlantic (1991) 3 All ER 73 (QBD) - In this case,
again, the issue was whether the liability for nervous shock extends to psychiatric illness
arising from being told of the tragedy and thereafter failing to cope with its
consequences. It was held that the reasonable foreseeability of the harm, the proximity of
the relationship and the concepts of reasonableness, justice and fairness compels one to
add to this category of negligence that increment of liability which may arise when the
psychiatric illness is caused by being told of the disaster though not witnessing it or its
aftermath. The psychiatric damage was indirect because it was occasioned to another
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person (the plaintiff) at another time and place, but it was linked back to the event (death)
directly caused by the negligence.
LEADING CASE: PAGE v SMITH
[(1995) 2 All ER 736 (HL); (1996) 3 All ER 272 (CA)]
In this case, the plaintiff who was involved in a motor accident due to negligence of the
defendant did not suffer any physical injury. He though in a position of primary victim,
being directly involved in the accident, remained unhurt. He, however, suffered ‘myalgic
encephalomyelitis’, a psychiatric illness with which he had earlier suffered but which was
then in remission.
This illness which the plaintiff suffered as a result of motor accident was not foreseeable
in a person of ordinary fortitude but as personal injury of physical harm which the
plaintiff did not suffer was foreseeable, the plaintiff succeeded in recovering damages for
psychiatric illness suffered by him. The balance of medical opinion was to the effect that
the accident could have materially contributed to the recrudescence of plaintiff’s illness
and the plaintiff was awarded damages on that basis.
The case also highlights the principle that the defendant’s wrongful act need not have
been the sole or principal cause of the damage. The defendant would be liable for the
damage if his wrongful act caused or materially contributed to it notwithstanding that
there were other factors for which he was not responsible which had contributed to the
damage.
LEADING CASES: ALCOCK V CHIEF CONSTABLE OF THE SOUTH
YORKSHIRE POLICE
[(1991) 4 All ER 907 (HL)] &
WHITE v CHIEF CONSTABLE OF THE SOUTH YORKSHIRE POLICE [(1999)
1 All ER 1 (HL)]
In the White s case, the House of Lords reviewed and restated the common law regarding
compensation for pure psychiatric injury or nervous shock. The court noticed that this
branch of law “is a patch work quilt of distinctions which are difficult to justify”. The
court, however, declined to reform the law leaving this task to Parliament.
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According to White’s case, mental suffering has to be divided into different categories.
Mental suffering following from foreseeable physical injury is routinely compensated
under the head ‘pain and suffering’ while awarding compensation for personal injury.
Mental suffering, which is not a concomitant of physical injury, is further subdivided into
two groups. The first group embraces that mental suffering which does not amount to a
recognizable psychiatric illness even if it consists of extreme grief and the sufferer is
debilitating. The second group consists of that mental suffering which amounts to a
recognizable psychiatric illness. The difference between the two groups is often difficult
to draw and is a matter for expert psychiatric evidence.
Mental suffering not following physical injury which does not amount to a recognizable
psychiatric illness is not redressable under the common law. While that amounting to a
recognizable psychiatric illness is redressable in a limited number of cases for which
purpose the sufferers are divided into primary and secondary victims.
‘Primary’ victims are those who are participants in the event or are in the actual area of
danger of receiving foreseeable personal injury but suffer only a recognizable psychiatric
illness and escape personal injury by chance or good fortune. They are entitled to receive
compensation for mental suffering even if psychiatric illness was not foreseeable.
A ‘secondary’ victim is one who is not a participant in the event or is not in the area of
danger of receiving foreseeable personal injury but yet suffer recognizable psychiatric
illness. He can he allowed damages if the following conditions known as control
mechanism are satisfied: (i) The plaintiff must’ve close ties of love and affection with the
main victim. Such ties may be presumed in some cases (e.g. spouses, parent and child)
but must otherwise be established by evidence, (ii) The plaintiff must’ve been present at
the accident or its immediate aftermath (viz. an employee of the tortfeasor, a rescuer,
etc.). (iii) The psychiatric injury must’ve been caused by direct
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perception of the accident or its immediate aftermath and not upon hearing about it from
someone else.
The effect of the decision in White’s case is to finally replace the test of foreseeability of
psychiatric injury to a person of normal fortitude which started from Hay (or Bourhill) v
Young, by the test of foreseeability of personal injury in case of primary victims and by
the control mechanisms mentioned above in case of secondary victims. These tests which
are reaffirmed in this case have their origin in Alcock’s case and Page v Smith. Policy
considerations have played an important role in treating pure psychiatric injury different
from personal injury and in limiting the area within which compensation can be claimed
for the former.4
In the Alcock’s case, plaintiffs, who suffered nervous shock when disaster at a football
match was televised live and in news bulletins but without depicting the suffering or
dying of recognizable individuals, were held not entitled to damages.
FURTHER QUESTIONS
Q.1. “The crude view that the law takes cognisance only of physical injury resulting from
actual impact has been discarded, and it is now well recognised that an action will lie for
injury by shock sustained through the medium of the eye or the ear without direct
contact”. Discuss the historical development of the law relating to ‘Nervous Shock’.
Can a person claim damages, caused due to nervous shock, which he suffered on seeing
the aftermath of the accident after being told about the accident?
[D.U.-2008/2011] [L.C.I-97; C.LC.-97]
A.1. See under the text of the present chapter.
__________________
4.
See Rantanlal & Dhirajlal, The Law of Torts, 24th ed., pp. 200-201.
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Nervous Shock
A person can claim damages for nervous shock which he suffers on seeing the aftermath
of the accident after being told about the accident, but for that he will require existence of
close relationship of love and affection and close proximity in time and space with the
accident or its aftermath [Alcock’s case (1991) 4 All ER 907]. However, the primary
victim need not be a near relative of the plaintiff. Thus, a man who came up on a scene of
serious accident for acting as a rescuer, when suffered a nervous shock, was allowed to
claim damages [Chadwick v British Transp. Corpn. (1967) 1 All ER 912].
However, a mere bystander not in the danger zone cannot recover [Mc Farlane v E.E.
Caledonia Ltd. (1994) 2 All ER 1(CA)]. In Hay (or Bourhill) v Young (1943) AC 92, the
plaintiff heard the noise although she did not see the accident and suffered nervous shock.
It was held that she was not within the area of potential danger arising as a result of
defendant’s negligence. Though in Me Loughlin v O, Brian (1982) 2 All ER 298, the
plaintiff after being told of the accident was taken to the hospital where she saw the
injured husband and children. She was allowed the damages for nervous shock.
In Page v Smith (1995) 2 All ER 736 (HL), it was laid down: (1) In cases involving
nervous shock, it is essential to distinguish between the ‘primary victim’ and ‘secondary
victims’. (2) In claims by secondary victims the law insists on certain control
mechanisms and hindsight, in order as a matter of policy to limit the number of potential
claimants. Thus the defendant will not be liable unless psychiatric injury is foreseeable in
a person of normal fortitude. Therefore a person involved but not injured in an accident
could not recover for the revival of his psychiatric condition by reason of the shock.
[Note: Also see White v Chief Constable of the South Yorkshire Police (1999) 1 All ER 1
(HL).]
Q.2. On the eve of Deepawali, A was letting off fire works. While doing so he
negligently let a lighted squib fall down in the street. The fiery explosive burst suddenly
with a loud noise close to a woman who then was holding a child and was walking on
footpath. The loud burst also caused panic in the crowd. Though neither the woman nor
her child were directly hit but the woman who felt concerned about the safety of her child
both from the burst and the panic caused in the crowd
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because of the burst, suffered from nervous shock which ultimately resulted in disability.
Stating the law discuss the liability of A. Cite judicial precedents. [C.L.C.-92]
Also, discuss the liability of A if the explosion narrowly missed her husband who had
walked a little ahead of woman, and the shock from which woman suffered resulted by
seeing the husband just escape injury.
A.2. In the present case, in both the situations, A will be liable. The woman was so placed
where injury through nervous shock can be foreseen by a reasonable man. Further, her
proximity to the accident was sufficiently close in time and space.
Q.3. On 26th Nov. 1992, one Sridas, along with his wife Asha, was travelling by a bus
from Delhi to Roorkee. At the 10th milestone on the national highway, the bus plunged
into a channel, as a consequence of which, Sridas died on the spot and Asha became
unconscious. On regaining consciousness, she was informed about the death of her
husband, which caused her nervous shock and she remained bedridden for a month. Asha
filed a suit, alleging negligence by invoking the doctrine of res ipsa loquitur, claiming
damages for(i)
causing death of her husband,
(ii)
her physical injuries,
(iii)
causing nervous shock to her.
Would you, as a judge, award damages to Asha? [C.LC.-93]
Koki and her husband Keku were in a car, driver by Dilruban. Due to Dilruban’s
negligence, the car crashed killing Keku, while Koki became unconscious. In the nursing
home, after she recovered consciousness, she was informed that her husband had been
died in the accident. Consequently her memory got impaired and her hair turned grey on
account of the acute nervous shock she suffered because of the sad news. Plead the case
for Koki enunciating the law on nervous shock.
[C.LC.-95]
A.3. Asha can claim damages for the death of her husband, her physical injuries and for
nervous shock caused to her.
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The plaintiff has invoked the doctrine of res ipsa loquitur (i.e. the accident speaks for
itself) thus if the defendants are unable to rebut the presumption of their negligence, they
would be liable for all foreseeable injuries caused to the plaintiff.
The nervous shock suffered by Asha (and Koki, in the second case) was a reasonably
foreseeable consequence of the defendant’s negligence (See Mc Loughlin v O’ Brian in
the text).
Q.4. The gate-keeper at a rail crossing negligently allowed the gate to remain open and
therein impliedly invited people to cross the railway line. M and his wife W, who were
driving in a buggy entered the gate at the crossing with reasonable care on their part but
without realizing that a train was approaching fast. Luckily there was no collision with
the train, but the escape was so narrow and the danger so alarming that W fainted and
suffered a severe nervous shock which produced prolonged illness. X who had already
crossed the level crossing on foot, saw the hair-breadth’s escape of M and W, and also
suffered a nervous shock resulting in illness.
A.4. Both W and X can claim damages for the nervous shock resulting from the
defendant’s negligence. W and X were so placed where injury through nervous shock can
be foreseen by a reasonable man. Their proximity to the accident was sufficiently close in
time and space.
Regarding X’s claim it has been held that the primary victim need not be a near relative
of the plaintiff. Thus, a man who came up on a scene of serious accident for acting as a
rescuer, when suffered a nervous shock, was allowed to claim damages (Chadwick v
British Transport Corpn.).
Q.5. A by way of practical joke, falsely represented to P that her husband had met with a
serious accident whereby both his legs were broken. By reason of this misrepresentation
P suffered a severe nervous shock, and was made seriously ill, and her life was for some
time in great danger. P’s husband, who had to incur expenses for medical treatment for
her, claimed damages from A for shock caused by false news. Decide.
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A.5. A will succeed [Wilkinson v Downston (1897) 2 Q.B. 57]. In this case, on the
similar facts, held that the damages were not too remote, and, that the damage due to
illness could be recovered in an action for fraudulent misrepresentation.
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5
Remoteness of Damage
Remoteness: A Limitation to an Action for Negligence1
The law will permit no damages to be recovered, except such as are the natural and legal
consequences of a wrongful act. No person can be made liable ad infinitum for all the
consequences, which follow his wrongful act. A person is held responsible in law only
for consequences, which are not remote. In jure non remota causa sed proximo spectatur
(In law, the immediate and proximate, not the remote, cause must be considered).
A man is presumed to intend the natural, but not the remote, consequences of his act. The
law cannot take account of everything that follows a wrongful act; it regards some
subsequent matters as outside the scope of its selection because it were infinite for the
law to judge the causes of causes or consequences of consequences. The defendant is
liable for the wrongful act only if it is the proximate, direct or immediate cause of injury
(causa causans) and not merely a causa sine qua non (cause without any other cause).
The expression causa causans means the real cause or the cause of causes, while the
expression causa sine qua non means that cause
__________________
1.
Write a short note on ‘Remoteness of Damage’.
[C.L.C.-95, L.C.I-94]
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Law of Torts
without which, the event or the consequence would not have happened. For example, A
pushes B, who falls upon a stone negligently left by C, and is injured thereby. While A’s
pushing B is the causa causans, i.e. the effective cause or the real cause, the presence of
the stone which occasioned the injury, is the causa sine qua non or that cause without
which the event (i.e. the injury) would not have happened.
In Vendenburg v Truax, the defendant, quarrelling with the plaintiff’s servant, chased
him with a pick-axe, and the latter fled into the plaintiff’s store, and in running behind the
counter for shelter, knocked down a cask of wine whereby the wine was spilt. It was held
that the defendant was responsible for the loss of the wine.
It is not necessary that the event, which is immediately connected with the consequences,
is proximate and that farther from it is too remote. In Scott v Shepherd 17 W. BI. 892, A
threw a lighted squib into a crowd, it fell upon X. X in order to prevent injury to himself
threw it further, it fell upon Y and Y in his turn did the same thing and it then fell on B,
as result of which B lost one of his eyes. A was held liable to B. His act was proximate
cause of damage even though his act was farthest from the damage in so far as the acts of
X and Y had intervened in between.2
It is clear from the above case that a person is presumed to intend the natural and
probable consequences of his own act. Having done an act causing mischief, a man
cannot stop the risk or the consequences at his pleasure, nor is he able to confine the same
to the precise and definite objects he planned out, he will have to abide by the same fully
to the end.
__________________
2.
A threw a lighted cracker in a crowded market. It fell on B's shop. C was standing
nearby. To save himself and B’s shop too, C threw the cracker away. It then fell on D's
shop. D in his turn, threw it away which then fell on E who became blind. Decide, who is
liable to E? [I.A.S.-2008]
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Remoteness of Damage
Tests of Remoteness of Damage3
Damage is said to be too remote when, although arising out of the cause of action, it does
not immediately and necessarily flow from it, or is such which could not have reasonably
been foreseen. There are two tests to determine whether the damage is remote or not. It is
the test of reasonable foresight that now holds the field.
(1) Test of reasonable foresight- According to this test if a reasonable man could have
foreseen the consequences of a wrongful act they are not too remote. This view was
upheld in Rigby v Hewitt (1850 5 Ex. 240). The test of reasonable foresight is also called
as the test of probability (a man is responsible for the probable consequences of his act).
Thus, if A commits a wrong, A will be liable only for those consequences which he could
foresee, for whatever could not have been foreseen is too remote a consequence of his
wrongful act. Scott v Shepherd (above) illustrates the test of reasonable foresight. In that
case, the person intervening was not fully responsible for his act and the defendant should
have foreseen this irresponsibility; the chain of causation was unbroken and the defendant
was held liable.
In Greenland v Chaplin (1850) 5 Ex. 243, it was observed that a person is expected to
anticipate and guard against all reasonable consequences but he is not by the law of
England expected to anticipate and guard against that which no reasonable man would
expect to occur. In King v Philips (1953) 1 All ER 617, the court observed that the test of
liability for shock is foreseeability of injury by the shock. Thus, foreseeability becomes
the effective test.
__________________
3.
“Theoretically, the consequences of any conduct may be endless but no defendant
can be held liable ad infinitum for all the consequences which follow his wrongful acts.
He is liable only for those consequences which are not too remote" (Winfield). Do you
agree with this observation? Discuss with reference to the tests and leading cases to
determine the remoteness of damages.
[D. U.-2007][C.L. C. -93/94/99/2000-2006; L. C. I-93/95/97/99/2000/2002/2004/2006]
"In assessing damages, the law takes an account of certain consequences but considers
only proximate consequences.” State the test by which the remoteness of consequences is
determined by the courts for this purpose. Refer to judicial pronouncements.
[I.A.S.-2004]
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(2)
Test of directness- According to this test a person is liable for all the direct
consequences of his wrongful act (which are not due to the operation of independent
intervening causes), whether he could have foreseen them or not, because consequences
which directly follow a wrongful act are not too remote.
Where the causal connection between the wrongful act and the injury is not sufficiently
direct, that is to say, when the two cannot be connected as cause and effect, there is no
liability, for the damage is too remote.
In Smith v London & South Western Railway Co. (1870) L.R. 6 C.P. 14, this test was
first upheld. In this case, the railway company was negligent in allowing a heap of
trimmings of hedges and grass near a railway line. Spark from the railway engine set fire
to the material. Due to high wind the fire was carried to the plaintiff’s cottage (situated
200 yards from the spot where the fire began), which was burnt. The defendants were
held liable even though they could not have foreseen the loss of the cottage. The court
reasoned that when it has been once determined that there is evidence of negligence, the
person guilty of it is equally liable for its consequences, whether he would have seen
them or not. What a defendant might reasonably anticipate is only material with reference
to the question, whether the defendants were negligent or not, and cannot alter their
liability if they were guilty of negligence.
LEADING CASE: RE POLEMIS AND FURNESS, WITHY & CO.
[(1921) 3 K.B. 560]
In this case, the view taken in the Smith v London & South Western Railway Co. case
was followed. The defendants chartered a ship. The cargo to be carried by them included
a quantity of Benzene and Petrol in tins. Due to leakage in those tins some of their
contents collected in the hold of the ship. Owning to the negligence of the defendant’s
servants a plank fell into the hold, a spark was caused and consequently the ship was
totally destroyed by fire. It was held that defendants were liable for all the direct
consequences of their servant’s negligent act including destruction of the ship even
though consequences could not have been reasonably anticipated.
The court observed: “Given the breach of duty which constitutes negligence and given
the damage as a direct result
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Remoteness of Damage
of negligence, the anticipation of the person whose negligent act has produced the
damage appears to be irrelevant” (Bankers, L.J.). “The question whether the
consequences of any given act are such as could or could not be reasonably foreseen,
goes to culpability, not to compensation” (Scrutton, L.J.).
According to this case, once the tortious act is established, the defendant is to be held
liable for all the damage which “is in fact directly traceable to the negligent act and not
due to independent causes having no connection with the negligent act.” On this view, the
test of reasonable foresight is of relevance in determining whether there has been a
negligence or not, but when it has been once determined that there is negligence the
defendant is liable for its direct consequences, whether he could have foreseen them or
not.
LEADING CASE: LIESBOSCH DREDGER v EDISON [(1933) A.C. 448]
In this case, the ‘direct cause’ was interpreted which had the effect of limiting the scope
of Re Polemis. In this case, owing to the negligence of Edison, the dredger Liesbosch was
sunk. On account of financial difficulties, the plaintiffs (owners of Liesbosch) could not
replace the dredger and they had to hire another one at a very high rent for the
performance of a contract with a third party. The plaintiffs therefore suffered a very
heavy loss. They sued the owners of Edison for negligence and their claim for
compensation included (i) the price of the dredger, and
(ii)
the hire charges (i.e. extra expenses) which they had to pay from the date of the
sinking to the date they could actually ,purchase a new dredger.
The court accepted their claim under the first head, but not the second. The court allowed
compensation equal to market price of the dredger comparable to Liesbosch. As regards
the second head of claim the compensation allowed was for loss suffered in carrying out
the contract with the third party from the date of sinking of Liesbosch to the date when
another dredger could reasonably have been put to work. The court allowed the cost of
transporting a new dredger and also loss
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Law of Torts
due to suspension of work in the mean time together with interest on that sum. Thus the
claim after the time when a new dredger could have been purchased and put to work was
rejected.
The reason why the plaintiffs couldn’t purchase a new dredger was their inability viz.
poverty, and thus, additional loss suffered by them was too remote a consequence of the
defendant’s act.
The House of Lords in this case distinguished Re Polemis on the ground that the injuries
suffered were not the immediate physical consequence of the negligent acts. In the instant
case, the extra expenses had to be incurred by the plaintiffs, not on account of the
immediate physical consequence of the negligent act, but on account of the intervening
financial problems faced by the plaintiff. The plaintiffs could not claim for the extra
expenses. Thus, the direct consequences test of Re Polemis was modified by the ruling of
Liesbosch case.]
The rule in Re Polemis was also not followed by the Privy Council in the famous
‘Wagon Mound’ case, wherein held that the test of reasonable foresight is the better test.
LEADING CASE:OVERSEAS TANKSHIP (U.K.) LTD. v MORTS DOCK &
ENGG. CO. LTD. (“WAGON MOUND” CASE)4 [(1961) A.C. 388]
In this case, during bunkering operations (i.e. taking in oil) in Sydney harbour, a lager
quantity of oil was negligently allowed to spill on the water from the Wagon Mound, a
ship under the defendant’s control as charterers. The escaped oil was carried away by the
wind and the tide to a wharf (about 600 ft. away),
__________________
4.
“The test of foreseeability in preference to the test of directness has now become
established by a decision popularly known as the Wagon Mound Case." Discuss.
[C.LC.-98]
A cyclist negligently hits a pedestrian who was carrying a bomb in his pocket. The bomb
exploded and the pedestrian along with other five persons walking on the pavement died
as a consequence of the explosion. Also, due to explosion, a military tent close by caught
fire resulting in severe burn injuries to a jawan sleeping inside the tent. Determine the
extent of liability of the negligent cyclist, critically analyzing the reasoning given by the
Privy Council in Wagon Mound Case for rejecting the principle laid down in Re Polemis
Case. [C.L.C.-2001]
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Remoteness of Damage
owned by the respondents-plaintiffs, where another ship was being repaired. Soon after
the oil had spread itself on the water, the Wagon Mound left the harbour. About 60 hours
thereafter molten metal from the plaintiff’s wharf fell on the cotton waste on a piece of
debris floating on the oil, which ignited the fuel oil on the water and the fire caused great
damage to the wharf and the equipment.
The trial court and the Supreme Court of the New South Wales applied the Polemis rule
and mentioning that unforseeability of damage by fire was no defence, held the
defendants liable. On appeal the Privy Council held that Re Polemis was no more good
law and reversed the Supreme Court’s decision. Since a reasonable man could not foresee
such injury the appellants (defendants) were held not liable in negligence even though
their servant’s negligence was the direct cause of the damage.
The Privy Council, in this case, laid down the following two principles:
(1)
The only test applicable was foreseeability of the damage complained of, which
in' this case were the damage caused by fire.
(2)
The respondents could not be held liable for unforeseeable damage viz. damage
by fire. Though the contact of the oil with the respondent’s property caused damage by
interfering with the use of their shipways and this damage was foreseeable, no claim was
made for it.
Referring to the Polemis case, their Lordships said: “Polemis rule does not seem
consonant with current ideas of justice or morality, for an act of negligence, however
slight or venial, which results in some small foreseeable damage, the actor should be
liable for all consequences, however unforeseeable and however grave, so long as they
can be said to be ‘direct’. It is a principle of civil liability that a man must be considered
to be responsible for the probable consequences of his act. If some limitation must be
imposed upon the consequences for which the negligent actor is to be held responsible,
why should that test (reasonable foreseeability) be rejected which
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Law of Torts
corresponds with the common conscience of mankind, and a test (the ‘direct’
consequences) be substituted which creates insoluble problems of causation.”
After pointing out that the test of directness looked at the happenings, after the event, it
was further observed: “After the event even a fool is wise. But it is not the hindsight of a
fool; it is the foresight of a reasonable man which alone can determine responsibility.5
The Polemis rule by substituting “direct” to “reasonably foreseeable” consequence leads
to a conclusion equally illogical and unjust.”
The decision in this case has been considered good law by the House of Lords and the
Court of Appeal in subsequent cases.
LEADING CASE: HUGHES v LORD ADVOCATE [(1963) 1 All ER 705]
In this case, the post office employees opened a manhole for the purpose of maintaining
underground telephone equipments. In the evening they left it under the cover of a tent
but unattended, though surrounded by paraffin lamps to warn the public. An eight year
old child entered the tent and started playing with one of the lamps, which fell into the
manhole when the boy stumbled over it. A violent explosion followed and the boy
himself fell into the hole and sustained serious injuries. It was foreseeable that tampering
with the lamp could bum a child, but the explosion could not be foreseen.
The House of Lords held that since the kind of damage was foreseeable although the
extent was not, the defendants were liable i.e. the boy was entitled to recover damages. It
will be seen that the foreseeable and actual injuries were of the same kind i.e. bum
injuries resulting from kerosene coming in contact with the naked flame and the
difference only lay in the
__________________
5.
“It is not the hindsight of a fool, it is the foresight of a reasonable man which
alone can determine liability.” Discuss.
[I.A.S.-2008]
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Remoteness of Damage
manner in which the events were predictable and the way they happened.
This case illustrate that the test of foreseeability is satisfied if the damage suffered is
similar in kind though different in degree and that the precise sequence of events or the
extent of the damage need not have been foreseeable; but if the damage suffered is
altogether different in kind, the test of foreseeability is not satisfied, and the plaintiff
cannot recover.
LEADING CASE: SMITH v LEECH BRAIN & CO.
(“EGGSHELL SKULL” CASE) [(1962) 2 QB 405]
In this case, it was laid down that if the plaintiff suffers personal injury from the wrongful
act of the defendant, it is no answer to the claim that the plaintiff would have suffered
less injury “if he had not unusually thin skull or an unusually weak heart.” A tort-feasor
takes his victim as he finds him.
In this case, a workman of the defendants because of their negligence suffered a burn
injury on his lower lip which promoted cancer at the site of the bum resulting in his
death. But for the bum, the cancer might have never developed, though there was a premalignant condition and there was likelihood that it would have done so at some stage in
his life. In an action by the widow of the deceased workman, the defendants were held
liable for his death on the principle that a tort-feasor must take his victim as he finds him.
Smith’s case was followed in Robinson v The Post Office (1974) 2 All ER 737 (CA). In
this case, it was held that it was foreseeable that if a workman slipped from a ladder made
slippery because of the negligence of the employer, the workman was likely to suffer
injury needing medical treatment in the form of injection of ATS. Although it was not
foreseeable that the injection given even without any negligence on the doctor’s part
would cause encephalitis to the workman because he was allergic to the second dose of
ATS yet the Post Office were held liable on the principle that they were bound to take the
plaintiff as they found him.
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Law of Torts
LEADING CASE: DOUGHTY v TURNER MFTG. CO. LTD.
[(1964) All ER 98]
In this case, the plaintiff was employed by the defendant. Some other workmen of the
defendant let an asbestos cement cover to slip into a cauldron of hot molten liquid. It
resulted in an explosion and the liquid thereby erupted, causing injuries to the plaintiff,
who was standing nearby.
What happened actually was that the extreme heat caused the asbestos cement to undergo
a chemical change creating or releasing water which turned to steam and which in one or
two minutes later caused an eruption of the molten liquid from the cauldron injuring the
plaintiff. Thus the plaintiff was not injured by the splash, if any, from falling of the cover
into the liquid. Until the accident had been investigated, no one knew or suspected that
heat can cause such a chemical change in asbestos cement.
The Court of Appeal held the defendant not liable on the reasoning that the accident that
happened was of entirely different kind to that which was foreseeable.]
In S.C.M. (U. K.) Ltd. v W. J. Whittall & Sons6 (1971) 1 QB 337, due to the negligence
of the defendant’s workman an electric cable alongside the road was damaged. As a
result of the same, there was a seven hour power failure in the plaintiffs’ typewriter
factory. The plaintiff alleged that as a consequence of power failure there was damage to
materials and machines and consequent loss of production, and the same could have been
foreseen by the defendants. It was held that as the defendants knew that the said electric
cables supplied electric current to the factories in the neighbourhood, they could foresee
that if the current was cut off there could be consequent loss of production and, therefore,
they were liable for the damage caused to the plaintiff.
__________________
6.
Due to negligence of Delhi Vidyut Board an electric cable alongside the road in
an industrial area was damaged. As a result there was 10 hour power failure in plaintiff’s
factory. Plaintiff alleged that as a consequence of power failure there was damage to
material and machines and consequently loss of production. Plaintiff sued DVB for same.
Will he succeed? Decide. [L.C.II-97]
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Remoteness of Damage
Conclusions - Tests of Remoteness of Damage
In view of this position, it appears that the direct consequences test laid down in Re
Polemis is no longer to be followed. There is, however, some doubt as to the effect of the
rule in the Wagon Mound’s case. In Salmond’s Law of Torts, the following principles
modifying the above rule are laid down:
(1)
Y suffers foreseeable damage as the result of X’s activities. X is liable for that
damage, whether it is a direct or an indirect consequence of his acts.
(2)
Y suffers foreseeable damage as the result of X’s activities. That damage is much
greater in amount than could have been foreseen, but is still in general the kind of
damage that could have been foreseen. X is liable for it.
(3)
Y suffers foreseeable damage as the result of X’s activities (e.g. personal
injuries). Y also suffers unforeseeable damage as the direct result of those same activities
(e.g. he is forced into bankruptcy by reason of his want of means). Y can recover the
former head of loss, but not the latter.
(4)
Y suffers foreseeable damage as the result of X’s activities. Z also suffers direct
but unforeseeable damage as the result of those activities. X is liable to Y, but not to Z.
Intended Consequences
Intended consequences are not subject to the doctrine of remoteness. Such consequences
are never too remote. They are direct and immediate consequences, the causal connection
between the act and the consequence or the cause and effect being obvious. An
intentional wrongdoer’s liability will cover all consequences, whether foreseeable or not,
which result from his wrongful act. This is not affected by the Wagon Mound case.
Scott v Shepherd (above) illustrates the extent of intentional wrong doer’s liability. In an
action for deceit which is an intentional tort, the tort-feasor is liable for all actual damage,
whether foreseeable or not, which directly flows from the fraudulent act.
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Law of Torts
When the Damages Excluded as Too Remote
(1)
Where not a necessary result - Where the defendant’s act is not the ‘direct cause’
of the damage sustained by the plaintiff. Where the damage is neither the necessary nor
the probable result of the defendant’s act, nor is it such as can be shown to have been in
his contemplation when he committed the act, it can be said to be too remote.
In Sharp v Powell, the defendant’s servant, in breach of a Police Act, washed the
defendant’s van in a street, and allowed the waste water to run down the gutter towards a
grating leading to the sewer, about 25 yards off. In consequence of the extreme severity
of the weather, the grating was obstructed by ice and the water flowed over a portion of
the cause way and froze there. The plaintiff’s horse slipped upon the ice and broke its leg.
Held, that this was a consequence too remote to be attributed to the wrongful act of the
defendant.
In another case, the defendants found the plaintiff’s cow straying in their field and seized
it. While the cow was in their custody, it died. The plaintiff sued to recover the value of
the cow. It was held that the defendants were not liable because the death of the cow was
not a natural or probable result of the seizer [Mi Taw v Nga Ket (1904) U.B.R. 1],
(2)
Contributory negligence of the plaintiff - When the damage is caused, wholly or
principally, by the act of the plaintiff himself.
In Glover v London & S. W. Rly. (1867) 3 Q.B. 25, a railway passenger misplaced his
ticket, and could not produce it when demanded by the ticket collector. Thereupon, he
was removed from the carriage without any undue force. When so removed, he left his
race-glasses in the carriage, and lost them. It was held that the loss of the race-glasses
was not the necessary consequence of the removal of the passenger from the carriage, but
was owing to that passenger’s negligence or carelessness. The loss was too remote, and
the passenger could not recover it.
(3)
Wrongful act of third party (novus actus)/7 Interference of third person - When
the damage is due to the wrongful act of an
__________________
7. Write a short note on: Maxim Novus actus interveniens.
[D.U.-2011]
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Remoteness of Damage
independent third party, such as could not naturally be contemplated as likely to spring
from the defendant’s conduct.
The principle underlying the maxim novus actus interveniens (new acts intervening) is
that there are circumstances when an intervening act of third party breaks the chain of
causation between the wrongful act and the damage sustained by the plaintiff. However,
damage is recoverable if, despite intervening independent causes, the defendant ought
reasonably to have anticipated such interventions and to have foreseen that, it they
occurred, the result would be that his wrongful act would lead to mischief.
In Haynes v Harwood (1935) 1 K.B. 146, the defendant’s servants negligently left a horse
van unattended in crowded street. By the throwing of stones at the horses by a child, they
ran away and injured a person. The defendant pleaded the defence of novus actus
interveniens. Held that the defendant was liable. Because such a mischief on the part of
the children was anticipated. The accident was the natural and probable consequence of
the defendant’s wrongful act. The case also illustrates that children generally do not
constitute novus actus when their action is the result of their mischievous tendencies.
Where A left a loaded gun negligently and his son found it and pointed it in play at P who
was injured by the going off, held that A is liable to P [Sullivan v Creed (1904) 2 IR
317]. However, where A sustained serious injuries in a train accident and also lost the
money, which he was carrying, it was held that the loss of currency notes couldn’t be
directly connected to the accident. The railway company wouldn’t be liable for loss
resulting from the wrongful act (e.g. theft) of a third party. The maxim novus actus
interveniens applies (Secy. of State v Gokal Chand AIR 1925 Lah 636).
In those cases in which an accident is partly caused by the interference of a third person,
the defendant will be responsible if it is found that his negligence is the effective cause of
the accident [Scott v Shepherd (above)]. Rescue cases illustrate that a reasonable act done
by a person, in consequence of the wrongful act of the defendant, which results in further
damage does not constitute novus actus breaking the chain of causation.
In Pigney v Pointers Transport Services Ltd. (1957) 2 All ER 807, P, an employee of a
company was injured in an accident, for which the
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Law of Torts
company was liable to P in damages. As a result of this injury, p developed anxiety
neurosis, and after a year, committed suicide. P’s widow sued the company for damages.
Held that P’s widow was entitled to succeed, as it could be said that P’s death was
directly traceable to his injury in the accident for which the company was responsible.
Thus, P’s act of taking his own life could not be said to break the chain of causation.
FURTHER QUESTIONS
Q.1. (a) D, a big business magnate, celebrated the birthday of his son with great pomp
and show. During the display of fireworks, a lighted but unexploded ‘Rocket’ fell into a
crowd of children who had gathered there to witness that show. The fiery missile landed
upon X who, to protect himself, caught it and deliriously threw it away from himself. It
fell upon Y who then passed it on in precisely the same manner till it at last burst on P’s
face who, as a result, received severe burns on his face. P sues D who denies his liability
as damage suffered by P is ‘too remote’ a consequence of his act. Decide. [C.LC.-.93]
(b) Mr. and Mrs. Jain were travelling in a car driven by Mr. Jain. As a consequence of
rash and negligent driving by the driver of Delhi Transport Bus Service, the car met with
an accident and Mrs. Jain suffered serious disfigurement. She spent 6 weeks in hospital.
Mr. jain left Mrs. Jain forever saying that he was unable to bear the looks of Mrs. Jain.
Mrs. Jain claimed damages for disfigurement as well as for the loss of the company of
her husband. Delhi Transport Bus Service proved on record that Mr. and Mrs. Jain did
not enjoy cordial marital relations and that there was also litigation between the two.
Decide, giving reasons.
[C.L.C.-94/95]
A.1.(a) In the present case, D’s act was the real and proximate cause of the accident, even
though his act was farthest from the damage in so far as the acts of X and Y had
intervened in between. It is not necessary that the event which is immediately connected
with the consequences is proximate and that farther
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Remoteness of Damage
from it too remote (Scott v Shepherd, 17 W. Bl. 892). Thus, P can recover damages.
(b)
There may be various causes for damage to the plaintiff. In order that the action
against the defendant succeeds it has to be shown that the defendant’s wrongful act was
the real and proximate cause of the damage.
In Mrs. Lampert v Eastern National Omnibus Co. (1954) 1 WLR 1047, Mrs. Lampert had
strained relations with her husband. One day in an accident due to the negligence of the
defendants, she suffered severe disfigurement. Sometime afterwards her husband
deserted her. She wanted to claim damages for the loss of company of her husband. It
was found that the real cause of the desertion was not her disfigurement but the estranged
relation between her and her husband, which existed even before the accident. Held that
the defendant’s act was not the proximate cause of ‘loss of company’ and damages with
regard to the same were not true. But she can recover damages for her disfigurement.
Thus, in the present case, Mrs. Jain can claim damages only for her disfigurement and not
for the ‘loss of company’ which was a remote cause of the defendant’s act.
Q.2. Employees of the telecommunication department opened a manhole in a street near a
children’s park and in the evening left the open manhole covered by a canvas tent
unattended and surrounded by warning paraffin lamps. The plaintiff, a boy aged 8,
attracted by lamps and the tent entered into the tent. While peeping into the manhole he
stumbled over a lamp. The lamp fell into the manhole and in a violent explosion that
followed plaintiff sustained burn injuries. In an action in tort, the department pleads
remoteness of damage. Decide.
[D.U.-2011] [I.A.S.-93] [L.C.I-93/95]
A.2. See Hughes v Lord Advocate (1963) 1 All ER 705 in the text. The plaintiff can
recover damages since the kind of damage was foreseeable. There was no remoteness of
damage.
Q.3. (a) A left a loaded gun beside a gap from which a private path led over A’s lands
from the public road to his house. As son (aged 15), coming towards his father’s house
along the path, found the gun, and returning with it to the public road, not knowing it was
loaded, pointed it in play at P who was injured
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Law of Torts
by the going off. P sues A who contended that the damage caused was ‘too remote’.
Decide.
(b)
A who was travelling in a train sustained serious injuries in consequence of that
train colliding with another train. A died. His legal representatives in an action for the
pecuniary loss included a claim of Rs.1,300 on the ground that the notes were lost by
reason of the negligence of the railway administration. Decide.
A.3.(a) A is liable to P [Sullivan v Creed (1904) 2 IR 317].
(b)
The loss of currency notes could not be directly connected to the accident. The
loss could’ve occurred after the accident had taken place and might be work of someone
else. The railway company wouldn’t be liable for loss resulting from the wrongful act
(e.g. theft) of a third party, such as could not be naturally be contemplated as likely to
spring from the defendant’s conduct. The maxim novus actus interveniens applies (Secy.
of State v Gokal Chand AIR 1925 Lah. 636).
Q.4. Discuss whether the damage is a foreseeable consequence or is too remote in the
following cases:
(a)
Damage resulting from judicial act.
(b)
Damages resulting from the wrongful act of the defendant aggravated by unusual
sensitiveness of the plaintiff.
(c)
A sterilisation operation negligently performed by the doctors resulting in the
plaintiff becoming pregnant. She decided not to have abortion and later gave birth to a
child which was congenitally abnormal.
(d)
A’s car is damaged because of the B’s negligence and it is taken to a garage for
repairs where from it is stolen.
A.4.(a) Where there comes in the chain of causation the act of a person who is bound by
law to decide a matter judicially and independently, the consequence of his decision are
too remote from the original wrong which gave him a chance of deciding.
(b)
If the plaintiff suffers personal injury from the defendant’s wrongful act, it is no
answer that the plaintiff would have
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Remoteness of Damage
suffered less injury if he did not have unusually sensitive skull or weak heart. In Smith v
Leech Brain & Co. Ltd. (1962) 2 QB 405, a workman of the defendants because of their
negligence suffered a bum injury on his lower lip which promoted cancer at the site of the
bum resulting in his death. But for the bum, the cancer might never have developed,
though there was a pre-malignant condition. Thus a tort-feasor must take his victim as he
finds him.
(c)
The negligent operation had confronted the plaintiff with a dilemma of whether to
have the child or an abortion and the fact that she decided against the abortion was not a
novus actus inter veniens [Allen v Bloomsbury Health Authority (1993) 1 All ER 651],
(d)
B would not be liable to A for theft of the car from the garage.
Q.5. Whether the test of foreseeability could be applied to a tort of nuisance or a tort of
strict liability?
A.5. The test of foreseeability is not limited to the tort of negligence but applies also to
the tort of nuisance. In Cambridge Water Co. Ltd. v Eastern Countries Leather Plc.
(1994) 1 All ER 53, it was held that even in cases of strict liability governed by the rule
in Rylands v Fletcher, foreseeability of damage of the relevant type, if there be escape
from the land of things likely to do mischief, was a prerequisite of liability. However, in
an action for deceit, damages are not restricted to foreseeable damage.
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No Fault Liability: Strict and Absolute Liability
Strict Liability1
Simply stated the rule of strict liability makes the defendant liable for accidental harms
caused without any intention and negligence on his part. In other words, sometimes the
law recognizes ‘no fault' liability. The undertakers of hazardous or dangerous activities
have to compensate for the damage caused irrespective of any carelessness on their part.
The basis of liability is the foreseeable risk inherent in the very nature of the activities. In
this respect, principle of strict liability resembles negligence, but differs, as here the
defendant would be liable even if he could not by reasonable care have avoided the
damage. The rationale behind strict liability is that the activities coming within its fold
are those entailing extraordinary risk to others, either in the seriousness or the frequency
of the harm threatened.
The rule laid down in Rylands v Fletcher is called the rule of strict liability (it is not
called the rule of ‘absolute liability’ because of the various exceptions to it). The rule laid
down in M.C. Mehta’s case is called the rule of absolute liability i.e. stricter than strict
liability (as it
____________________
1.
Write a short note on ‘Doctrine of Strict Liability’. [C.L.C.-95/2002]
Discuss the rule of strict liability with the help of relevant case law.
[I.A.S.-2006]
“The law sometimes recognises 'no fault' liability.” Discuss what are the rules laid down
by the English and Indian Courts in this connection? [D.U.-2011]
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does not recognize any exceptions). Here, the wrong arises from the breach of an absolute
duty. An absolute duty may be defined as a duty which renders a man liable without any
fault of his, irrespective of any consideration of intention or negligence on his part, and,
no amount of care and caution expended by him to prevent the damage will excuse him.
The owner or occupier of land may lawfully use it for any purpose, for which it might, in
the ordinary (i.e. natural) course of the employment of land, be used. But, for any nonnatural user, such as the introduction on to the land of something which, in the natural
condition of the land, is not upon it, he is liable if damage results to his neighbour. The
strict principle of law is - sic utere tuo ut alienum non laedas (everyone must so use his
own as not to do damage to another). When this maxim is applied to landed property, it is
necessary for the plaintiff to show, not only that he has sustained damage, but that the
defendant has caused it by going beyond what is necessary in order to enable him to have
the natural use of his own land.
This is the established law, whether the things so brought be beasts or water, or filth or
stench, or electricity, or a traction engine, or a motor-car. It is immaterial whether the
person is or is not aware of the danger at the time when he brings and uses them.
RULE IN RYLANDS v FLETCHER2
The rule in Rylands v Fletcher (1868) LR 3 HL 330, (also known as the “wild beast
theory”), is the most important of those cases where a man acts at his peril and is the
insurer of the safety of his neighbours against accidental harm. Here, the duty is not
merely the general negative duty to refrain from active injury, but a positive duty to guard
and
2.
Discuss the facts and the law laid down in the case of Rylands v Fletcher.
[L.C.I-94/96/99/2000/2002, L. C.II-94]
“If a person brings or accumulates on his land anything which if it should escape may
cause damages to his neighbours, he does so at his peril.” Discuss the above statement by
referring the judicial pronouncements along with the exceptions thereto. [I.A.S.-2007]
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protect one’s neighbours, lest they suffer harm by reason of dangerous things artificially
brought on one’s land.
In this case, the defendant (Rylands) got a reservoir constructed through independent
contractors over his land for providing water to his mill. When the reservoir was filled,
water flowed down the plaintiff’s (Fletcher) neighbouring coal mine causing damage.
There was some negligence on the part of the contractors in not properly sealing disused
mine shafts which they had come across during the construction of the reservoir and it
was through those shafts that the water flooded the plaintiff’s mine. As the engineers
were independent contractors, the defendants could not be made vicariously liable for
their negligence. Even though defendant had not been negligent he was held liable. The
defendant, in bringing water into the reservoir, was bound to keep it there at his peril, and
was, therefore, liable.
The basis of liability was laid down by Blackburn J. in these words: “The rule of law is
that the person who, for his own purpose, brings on his land and collects and keeps there
anything likely to do mischief if it escapes, must keep it in at his risk; and if he does not
do so is prima facie answerable for all the damage which is the natural consequence of its
escape.” Thus, a man acts at his peril and is the insurer of the safety of his neighbour
against accidental harms.
The liability arises not because there was any fault or negligence on the part of person (it
does not matter however careful he may have been and whatever precautions he may
have taken to prevent the damage), but because he kept some dangerous thing on his land
and the same has escaped from there and caused damage. Since in such a case the
liability arises even without any negligence on the part of the defendant, it is known as
the rule of strict liability.3
The strict liability under the Rylands rule is based on the following two conditions:
(a)
Firstly, there should be an escape from the land of something likely to do mischief
if it escapes. The escape, for the
_________________________
3.
“Where persons possess or use dangerous things, they are bound to exercise more
than ordinary care in their control of them, and in any case, to keep them safe at their
peril.” Discuss.
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No Fault Liability: Strict and Absolute Liability
purpose of applying the proposition in Rylands, means escape from a place of which the
defendant has occupation of or control over land to a place which is outside his
occupation or control.
(b) Secondly, there should be some non-natural use of land. This means that land should
be brought under some special use, bringing with it increased danger to others, and must
not merely be the ordinary use of the land, or such a use as is proper for the general
benefit of the community.
Thus, the following three conditions are essential to apply the Rylands rule:
(1)
Dangerous thing - The defendant should bring or collect on his land some
dangerous thing i.e. a thing likely to do mischief if it escapes. The rule has been applied
to water, gas, electricity, vibrations, poisonous trees, explosives, noxious fumes and rusty
wire. The liability exists whether the land is or is not owned by the defendant.
(2)
Escape - The thing causing the damage must escape to the area outside the
occupation and control of the defendant. Thus if there is projection of the branches of a
poisonous tree on the neighbour’s land this amounts to an escape and if the cattle
lawfully there on the neighbour’s land are poisoned by eating the leaves of the same, the
defendant will be liable under the rule [Cheater v Cater (1908) 1 K.B. 247].
However, in Giles v Walker (1820) 24 QBD 656, it was held that the owner of the land is
not bound to prevent the growth of thistles on it and he is not responsible for the escape
of thistle seeds. The thing escaping should’ve been under the occupation and control of
the defendant.
In Mrs. Read v Lyons & Co. (1947) A.C. 158, the defendants undertook the management
and control of an Ordnance Factory where they made high explosive shells for the
Government. There was an explosion in the factory in which the plaintiff and some others
employed within the factory are injured. Even though the shell which had exploded was a
dangerous thing, it was held that the defendants were not liable because there was no
“escape” of the thing outside the defendant’s premises.
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In Firth v Bowling Iron Co. (1878) 3 CPD 254, the defendant’s land adjoining the
plaintiff’s was fenced by a wire rope. Through exposure the rope decayed and pieces of it
fell on the grass on the plaintiff’s land, whose cow in grazing swallowed one of the
pieces, and died in consequence. The defendants were held liable.
(3)
Non-natural use of land - For the use to be non-natural it must be some special use
(e.g. keeping 30 gas cylinders in a residential house) bringing with it increased danger to
others, and must not merely be the ordinary use of land or such a use as is proper for the
general benefit of the community. The concept of non-natural use is flexible. A use may
become unnatural in course of time and vice versa. Considerations of time, place,
surroundings, circumstances and purpose all enter in the determination of the question
whether a particular use is a natural use or not. Fire in a house in a grate is an ordinary,
natural, everyday use of the fireplace in the room and if this fire spreads to the adjoining
premises the liability under the rule cannot arise.4 Electric wiring in a house or a shop,
supply of gas pipes in a dwelling house are other examples of natural use of land.
Growing trees (non-poisonous) on one’s land are natural use of land. In Noble v Harrison
(1926) 2 K.B. 332, the branch of a non poisonous tree growing on defendant’s land,
which overhung on the highway, suddenly broke and fell on plaintiff’s vehicle passing
along the highway. The branch had broken due to some latent defect. Held that the
defendant could not be made liable under the Rylands rule, as growing of trees is not
non-natural use of land.
In Sarju Prasad v Mahadeo Prasad (AIR 1932 All. 573), the defendants dug a trench on
their own land, but adjoining the plaintiff’s wall. This resulted in uncovering of the
foundations of the plaintiff’s wall and the accumulation of water therein. Thus, damage
was caused
_________________________
4.
Ramesh lit a fire in his room in a grate and went out to purchase fruits from the
market. While he was out, for some unknown reason, his room caught fire; this fire
spread and damage was caused to Shyam’s property. Discuss the liability of Ramesh
under the rule of Rylands v Fletcher. [L.C. II-94]
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No Fault Liability: Strict and Absolute Liability
to the walls and floors of the plaintiff’s house. It was held that there was non-natural use
of the land on the part of the defendants.
In T.C. Balakrishnan v T.R. Subramanian (AIR 1968 Ker 151), it was held that the use of
explosives (extra-hazardous objects) in an open ground even on a day of festival is a
“non-natural” use of land because under the Indian Explosives Act for making and
storing explosive substances even on such places and at such occasions licenses have to
be taken.
Exceptions to the Rylands Rule (Defences)5
The rule of strict liability has been made subject to so many exceptions since it was
propounded in 1865 that it has lost much of its sting. The following exceptions to the rule
have been recognized by Rylands v Fletcher and some later cases:
(1)
Plaintiff’s own default (recognized in Rylands) - No action can be maintained for
any injury which has been brought about by the willful and the intentional act of the party
complaining. In Ponting v Noakes (1894) 2 QB 281, the plaintiff’s horse nibbed the
poisonous leaves on the boundary of the defendant and died. The defendant was held not
liable because damage would not have occurred but for the horse’s own intrusion into the
defendant’s land.
(2)
Act of God or vis Major (recognized in Rylands) - If the escape has been
unforeseen and because of supernatural forces without any human intervention the
defence of act of God can be pleaded. Thus, storm, tempest, lightning, extraordinary
rainfall, etc. fall under the category of act of God. In order that a phenomenon should fall
within the operation of the rule of law with regard to an act of God, it is not necessary
that it should be unique or that it should happen for the first time; it is enough to show
that it is extraordinary, and such as could not reasonably be anticipated.
_________________________
5.
What are the exceptions to the rule of strict liability? Briefly examine each of
them. [I.A.S.-99]
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Law of Torts
The phrase vis major means something abnormal i.e. the property by the act of God has
been rendered useless. Before an act of God may be admitted as an excuse, the defendant
must himself have done all that he is bound to do. The mere fact that vis major coexisted
with or followed on the negligence is no adequate defence.
If the embankments of ornamental lakes give way due to extraordinary rainfall the person
so collecting the water would not be liable under the rule (Nicholas v Marsland). But, in
Greenock Corpn. v Caledonian Railway (1917) AC 556, the court held otherwise. In that
case, the Corporation obstructed and altered the course of a stream by constructing a
padding-pond for children. Due to extraordinary rainfall a great volume of water which
would normally have been carried off by the stream overflowed the pond and caused
damage to the plaintiff’s property. Held that the rainfall was not an act of God and the
Corporation was liable as it was their duty “so as to work as to make occupiers on a lower
level as secure against injury as they would have been had nature not been interfered
with.”
The Supreme Court in another context said that before heavy rain can be accepted as a
defence for the collapse of a culvert or bridge the defendant must indicate what
anticipatory preventive action was taken (S. Vendantacharya v Highways Dept. of South
Arcot, 1987).
(3)
Act of third party/ stranger - If the harm has been caused due to the wrongful or
malicious act of a stranger, who is neither defendant’s servant or agent nor the defendant
has any control over him, the defendant will not be liable under this rule.
Where the reservoir of the defendant was caused to overflow by a third party sending a
great quantity of water down the drain which supplied it, and damage was done to the
plaintiff, it was held that the defendant was not liable [Box v Jubb (1879) 4 Ex D 79]. In
Richards v Lothian (1913) A.C. 263, the occupier of an upper storey was held not liable
for damage to those below, due to water escaping from a lavatory by the deliberate act of
a third person.
Though the act of a third party may be relied on by way of defence, the defendant may
still be liable in negligence if he failed in foreseeing and guarding against the
consequences to his works of that third party’s act. In Northwestern Utilities v London
Guarantee &
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No Fault Liability: Strict and Absolute Liability
Accident Co. (1913) AC 108, the appellants were a public utility company carrying gas at
a high pressure. During the construction of sewer by the city authorities a gas pipe
leaked, resulting in fire which destroyed the hotel insured by the respondents. Since the
operations of the city authorities were conspicuous and the danger to the gas pipes could
have been reasonably foreseen and guarded against, the failure to do that was considered
to be negligence on the part of the defendants.
(4)
Consent of the plaintiff - In cases of volenti non fit injuria, i.e. where the plaintiff
has consented to the accumulation of the dangerous things on the defendant’s land the
liability under the Rylands rule does not arise. Such consent is implied where the source
of danger is for the “common benefit” of both the plaintiff and the defendant (e.g. the
water system, gas pipes or electric wiring).
Where the plaintiff and the defendant occupy parts of the same building, whether it be
two floors of a ware house, two sets of offices, or two flats, and water which is laid on to
the building escapes and does damage, the person from whose part the escape takes place
is not liable unless he is negligent [Kiddle v City Business Properties Ltd. (1942) 1 KB
269], Thus, in Carstairs v Taylor (1871) LR 6 Ex 217, the defendant was the plaintiff’s
landlord and was living on the floor above him. Some rats damaged a rainwater box
maintained by the defendant for the benefit both of himself and plaintiff, and the water
running through injured plaintiff’s goods below. It was held that no action lay.
(5)
Statutory authority - No action will lie for doing that which the legislature has
authorized, if it were done without negligence, although it does occasion damage to
anyone; but an action does lie for doing that which the legislature has authorized, if it be
done negligently. The statute must authorize the use of the dangerous thing either
expressly or by necessary implication.
Thus, persons empowered by a statute to bring or keep upon their land a dangerous
substance are not liable (in the absence of negligence or an express provision in the
statute to the contrary) for damage caused by its escape. In Green v Chelsea Water Works
Co. (1894) 70 L.T. 547, the defendants were authorized by statute to store water for the
purpose of supply to the city. Owing to some accidental cause, the water
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Law of Torts
escaped and caused injury to the plaintiff. Held that where the accumulation of water by
the defendants was not for their own purposes, and where they had been authorized by
the statute to accumulate and keep it, they would not be responsible for any escape,
unless it was traceable to their own negligence.
Applicability of Rylands Rule in India
The rule of strict liability is applicable in India, however, with certain deviations. The
Motor Vehicles Act, 1988, recognizes liability of the owner or insurer of the vehicle,
without proof of any negligence (‘no fault liability”). Under the Indian Railways Act,
1961 and Carriers Act, 1865, the railways/ carriers can be made liable even if there is no
negligence on their part. The Public Liability Insurance Act, 1991, and, the National
Environment Tribunal Act, 1995, also recognizes no-fault liability.
It may be noted that under American law, the rule in Rylands has not been followed to
the full extent of all its implications.
The principle of Rylands v Fletcher is followed in several Indian cases:
Ramnath v Kalanath ILR 1950 Nag 509 - When a person constructs a dam on his land
which has the effect of diverting the water from its natural channel on to the land of a
neighbour and damage to neighbour’s property results, he is liable to his neighbour. An
owner of property has no right to let off water which has naturally accumulated therein
even for the purpose of protecting his property if this will have the effect of transferring
his misfortune to the property of another.
Darshan Ram v Nazar Ram AIR 1989 P & H 253 - Where the defendant installed a big
ore melting furnace near the plaintiff’s house, he was held liable for emission of harmful
gases with offensive smell and heating causing discomfort.
State of Mysore v Ramchandra (1970) 73 Bom LR 732 - The State Government erected a
reservoir adjoining the plaintiffs’ land in order to provide drinking water facilities to a
village in the State. Due to very heavy rainfall the water from the reservoir overflowed
and flowed over the plaintiffs’ land, causing considerable damage to the land and the
crops standing thereon. Held, that the fact that the danger materialized subsequently by
an act of God was not a matter which absolved the
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State from its liability for the earlier negligence in that no proper channel for the flow or
overflow of water from the waste-weir was constructed by it in time. The act of the State
in constructing the reservoir is a welfare act and not an act in its sovereign capacity.
Therefore, the State was liable in negligence for the loss caused to the plaintiff.
LEADING CASE: MADRAS RAILWAY CO. v ZAMINDAR OF
CARVETNAGARAM [(1874) 1 I.A. 364 (P.C.)]
In this case, there was escape of water as a consequence of bursting of two ancient tanks
situated on the respondent’s zamindary. These tanks, which had been in existence since
ages, existed not merely for the benefit of the Zamindar, but also for the benefit of his
ryots (villagers). The escaping water caused damage to the appellant’s property and three
of the railway bridges were destroyed.
The respondent contended that it was not due to his negligence but it was an act of God.
He further pleaded that the said tanks were ancient and absolutely necessary for irrigation
and the practice of storing water was lawful and sanctioned by usage and customs. The
evidence showed that the respondent was not negligent. The issue, thus, was whether
respondent could be made liable on the principle of Rylands v Fletcher or whether the
case is covered by any of the exceptions to the principle?
Their Lordships observed that the liability as laid down in Rylands v Fletcher is
applicable only where a man exercises right which belongs to him. But the rule does not
apply where the defendant is empowered to exercise his right conferred by statute (an
exception to Rylands rule). The ancient tanks formed a part of national system of
irrigation recognised by Hindu and Mohammedan Laws by regulations of the East India
Company. And now Zamindars were vested with the statutory rights of maintaining the
tanks, a duty originally undertaken by the government.
Their Lordships further observed that considering the enormous benefit conferred on the
public by these tanks, it
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Law of Torts
would be injustice to impose upon the owners of the land, on which these tanks are
situated, a greater obligation than to use all ordinary precautions to prevent the water
from escaping and doing injury to their neighbours. It was held that under these
circumstances the Rylands rule was not applicable and as the Zamindar was not negligent
he was not liable for the damage caused by the overflowing water.
It was held that because of peculiar Indian conditions, the escape of water collected for
agricultural purposes might not be subject to strict liability. The owner on whose land
such water is collected is liable only if he is negligent.]
A similar view was taken in the following cases:
K. Nagireddi v Govt. of Andhra Pradesh AIR 1982 A.P. 119 - In this case, the plaintiff
had planted around 300 fruit bearing trees on his land. Due to seepage and percolation of
water in a Branch Canal under Nagarjunasagar project constructed by the State
Government, all those fruit trees absorbed excess water and died. In an action against the
State Government, the plaintiff contended that the percolation and seepage of water was
due to the fact that the government had failed to cement or line at the floor of the said
canal.
Following the decision in Madras Railway Co. v Zamindar, the High Court held that the
State was not liable. The court reasoned that in India, the question to be asked is “how
could people live if there was no water” in tanks and reservoirs. Enormous benefits
follow from dams and irrigation ... and without them, the country would be desert.
N. Narayana Bhattathrippad v Travancore Govt. AIR 1966 Travco. 225 - In this case, the
plaintiff was using a nearby stream under the alleged right of easement, as an outlet for
the excess water collection in his paddy fields. The State Government constructed a dam
across the said stream for storing the water to be used for irrigation purposes by the
adjacent land owners including the plaintiff. As a result of unusually heavy rainfall in a
particular year, the whole of the excess water collected could not be drained through the
sluices provided in the dam with the result that the water spread over the paddy lands of
the plaintiff and remained there for a number of days. The plaintiff also could not do
other cultivation during the year.
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In a suit against State for damages, it was contended on behalf of the State that the dam
was constructed at the instance of the adjoining land owners including the plaintiff who
took active part in the construction and that he himself and other landlords had actually
been benefited by the dam. Further, the lands were flooded because of unusual rainfall
i.e. an act of God.
Since it was not disputed that the plaintiff’s land remained submerged under water, it was
claimed that State was responsible for the resultant damage independent of the question
of negligence. In other words, the State was sought to be made liable on the basis of the
strict liability rule.
The court noted that the plea of act of God will be of no avail in localities where
excessive rains and consequent floods are matters of common occurrence. The court,
however, found that there was ample evidence to prove that the plaintiff had agreed to the
construction of dam and that along with others he too was benefited by the dam. Even
apart from defendant’s plea of two exceptions (act of God and plaintiff’s consent) as
recognised in Rylands rule, the two essential conditions necessary to attract the strict
liability rule are also missing: (i) That there was non-natural use of the canal as the dam
was constructed for storing water meant for irrigation. Indian law has all along
recognised the use of a property as a reservoir of water for irrigation purposes as a natural
use essential to the welfare of the community. (2) That there was no complaint that the
injury was caused by the escape of water stored up or collected in the dam. On the other
hand, the complaint was that the dam stood in the way of a speedy escape of the excess
water that had been collected in the plaintiff’s paddy lands as a result of very heavy rains.
Thus, held, that the State is not liable.
In Jayalakshmi Salt Works Pvt. Ltd. v State of Gujarat (1994) 4 SCC 1, the apex court,
however, observed: “In a welfare society construction of dam or bundh for the sake of
community is essential function and use of land or accumulation of water for the benefit
of society cannot be non-natural user. But that cannot absolve the State from its duty of
being responsible to its citizens for such violations as are actionable and result in damage,
loss or injury. What is fundamental is injury and not the manner in which it has been
caused.” In the present case, the appellant suffered loss due to action of Government’s
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officers both at the stage of construction of dam and failure to taken steps even at the last
moment (viz. flood situation), it was liable to be compensated.
In Kusuma Begum (Smt.) v The New India Assurance Co. Ltd. (AIR 2001 SC 485), the
apex court extended the strict liability rule laid down in Rylands v Fletcher. It applied it
to accidents arising out of use of motor vehicles on the road, in addition to no fault
liability statutorily provided in the Motor Vehicles Act, without the necessity of
establishing any negligence on the part of the driver of the motor vehicle causing the
accident.
However, this decision is open to criticism. It is difficult to see how the conditions for
applicability of the rule of Rylands are satisfied in case of an accident arising out of the
use of a motor vehicle on the road. Use of a motor vehicle on the road cannot be said to
be in modem times non-natural use of either the vehicle or the road and a motor vehicle
causing the accident on the road cannot also be said to have escaped from land/ premises
in occupation of the owner of the motor vehicle.
Leading CASE: M.P. ELECTRICITY BOARD v SHAIL KUMAR (AIR 2002 SC
551)
In this case, the apex court applied the rule of strict liability.
The defence of the dangerous being an ‘act of the stranger’ (an exception to the rule of
strict liability) was not allowed because the same could have been foreseen.
The deceased was riding on his bicycle while returning from his factory in night. A
snapped live electric wire was lying on the road. There was rain and the road was
partially filled with water. The cyclist could not notice the electric wire and as he came in
contact with the same, he died instantaneously due to electrocution. An action was
brought against the M.P. Electricity Board.
The court held that the Board had statutory duty to supply electricity in the area. If the
energy so transmitted causes injury or death of a human being, who gets unknowingly
trapped into it, the electric supplier shall be liable for the same. If the
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No Fault Liability: Strict and Absolute Liability
electric wire was snapped the current should have been automatically cut off. Authorities
manning such dangerous commodities have extra duty to chalk out measures to prevent
such mishaps. So long as the voltage of electricity transmitted through the wires is
potentially of dangerous dimensions the managers of its supply have the added duty to
take all safety measures to prevent escape of such energy or to see that the wire snapped
would not remain live on the road as users of such roads would be under peril.
The court clarified that even assuming that all such measures have been adopted, a person
undertaking an activity involving hazardous or risky exposure to human life is liable
under law of torts to compensate for the injury suffered by any other person, irrespective
of any negligence or carelessness on the part of the managers of such undertaking. The
basis of such liability is the foreseeable risk inherent in the very nature of such activity.
This liability, known as “strict liability”, differs from the liability which arises on account
of the negligence or fault in this way. In the latter case, if the defendant did all which
could be done for avoiding the harm he cannot be held liable, but in the former case, the
defendant is liable irrespective of whether he could have avoided the particular harm by
taking precautions.
The Privy Council has observed in Quebec Railway, Light Heat & Power Co. Ltd. v
Vandry & Others (AIR 1920 PC 181) that the company supplying electricity is liable for
the damage without proof that they had been negligent. Even the defence that the cables
were disrupted on account of a violent wind and high tension current found its way
through the low tension cable into the premises of the respondents was held to be not a
justifiable defence.
The defence that the snapping of wire was due to the act of the stranger who might have
tried to pilfer the electricity was rejected. Such act should have been foreseen by the
Electricity Board and at any rate, the consequences of the stranger’s act should have been
prevented by the Board. Merely because the illegal act could be attributed to a stranger is
not
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Law of Torts
enough to absolve the liability of the Board regarding the live wire lying on the road.]
RULE OF ABSOLUTE LIABILITY6
(Rule in M.C. Mehta v Union of India)
In M.C. Mehta v Union of India (AIR 1987 SC 1086), the Supreme Court evolved the
new principles of tortuous liability, not even recognized by English Courts. It evolved the
rule of ‘absolute liability’ as part of Indian law in preference to the rule of strict liability
laid down in Rylands v Fletcher. It expressly declared that the new rule was not subject to
any of the exceptions under the Rylands rule. Because those who had established
hazardous industries in and around thickly populated areas could escape the liability for
the havoc caused thereby pleading some exception to the Rylands rule. For instance when
the escape of the substance causing damage is due to the act of a stranger, say due to
sabotage, there is no liability under the Rylands rule.
In the original petition by M.C. Mehta, a social activist lawyer, he seek closure of
Shriram Industries as it is engaged in manufacturing of hazardous substances and is
located in a densely populated area of Delhi. While the petition was pending, oleum gas
leaked from one of its units affecting several persons. A three judge bench allowed the
partial reopening of the plant but directed the company to take all necessary safety
measurers. On behalf of those affected by the gas leak, the Delhi Legal Aid and Advice
Board and the Delhi Bar Association filed applications for compensation in the original
petition by M.C. Mehta.
_________________________
6.
Examine the validity of the Rylands rule laid down by Justice Blackburn, in the
light of Supreme Court’s decision in M.C. Mehta v Union of India.
[L.C.I-97/98/2004]
Discuss the law as laid down by the Supreme Court in M.C. Mehta’s case. [C.LC.-94]
Discuss the legal principles, in the background of the recent changes in the law,
applicable to the determination of liability for injury caused by “hazardous substances"
and also the nature of the said liability.
[M.S.-96]
A question based on the facts of the M.C. Mehta case. Decide the liability of the occupier
of industry engaged in hazardous substances. [I.A.S.-2000]
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No Fault Liability: Strict and Absolute Liability
The case is referred to a larger bench of five judges. While the 3-judge bench extended
the scope of the right to life and said that the State had power to place restrictions on
carrying of hazardous industrial activities, the 5-judge bench made further extension of
the right and held that the right to life contains the right to claim compensation to victims
of pollution hazards.
Measure of Liability
Regarding the measure of liability of “an industry engaged in hazardous or inherently
dangerous activity” in case of an accident, the court examined whether the rule in
Rylands would be applicable in such cases. The court held that the Rylands rule with all
of its exceptions is not applicable for the industries engaged in hazardous or inherently
dangerous activities.
The court observed: “This rule (Rylands v Fletcher) evolved in the 19th century at a time
when all these developments of science and technology had not taken place....We have to
evolve new principles and lay down new norms which would adequately deal with the
new problems which arise in a highly industrialized economy.” The court, thus, held that
it was not bound to follow the 19th century rule of English law, and it could evolve a rule
suitable to the social and economic conditions prevailing in India at the present day.
The court introduced a new “no-fault” liability standard (“absolute” liability or “stricter
than strict” liability): Where an enterprise is engaged in a hazardous or inherently
dangerous activity and harm results to anyone on account of an accident in the operation
of such hazardous or inherently dangerous activity resulting, for example, in the escape
of toxic gas the enterprise is strictly and absolutely liable to compensate all those who are
affected by the accident and such liability is not subject to any of the exceptions which
operate vis-a-vis the tortious principle of strict liability under the rule in Rylands v
Fletcher. Such enterprise owes an absolute and non-delegable duty to the community to
ensure that no harm results to anyone. Such enterprise must conduct its activities with the
highest standards of safety, and if any harm results, the enterprise must be absolutely
liable to compensate for such harm. It should be no answer to the enterprise to say that it
had taken
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all reasonable care and that the harm occurred without any negligence on its part.7
The bases of the new rule as indicated by the court are two:
(i)
If an enterprise is permitted to carry on an hazardous or inherently dangerous
activity for its profit, the law must presume that such permission is conditional on the
enterprise absorbing the cost of any accident (including indemnification of all those who
suffer harm in the accident) arising on account of such hazardous or inherently dangerous
activity as an appropriate item of its over-heads. Since the persons harmed would not be
in a position to isolate the process of operation from the hazardous preparation of
substance that caused the harm, the enterprise must be held strictly liable for causing such
harm as part of the social cost for carrying on the hazardous activities.
(ii)
The enterprise alone has the resources to discover and guard against hazards or
dangers and to provide warning against potential hazards.
Measure of Compensation8 (Quantum of Damages)
The Supreme Court also laid down that the measure of compensation should be
correlated to the magnitude and capacity of the enterprise, so that the compensation can
have the deterrent effect. The larger and more prosperous the enterprise, the greater must
be the amount of compensation payable by it (‘Deep pocket’ theory). Thus, unlike the
strict liability where ordinary or compensatory damages are awarded, under absolute
liability, exemplary damages are awarded.
_________________________
7.
“Any one engaged in hazardous enterprise is liable for bodily injury to any human
being resulting from the operation of typical risks associated with the activity of the
enterprise. Neither contributory negligence nor assumption of risk would be a defence to
enterprise liability.’ Fully explain this statement with reference to decided cases.
[C.L.C.-92/93]
8.
What is the measure of damages prescribed in M.C. Mehta’s case by the Supreme
Court of India? Do you agree with that?
[C.LC.-93]
What is the measure of compensation in cases of 'no fault' liability? [D.U.-2011]
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Certain observations in the opinion delivered in the Bhopal Gas Leak case (AIR 1990 SC
273) appear to weaken the Shriram Court’s standard that the quantum of damages should
be on the basis of the monetary capacity of the delinquent. In that case, Mukherji, C.J.
has pointed out that the Shriram standard of punitive liability is an “uncertain province of
the law” and it is premature to say whether this yardstick has been or will be accepted in
this country, not to speak of its international acceptance. However, in Bhopal case, in
determining compensation payable to Bhopal gas victims, Mehta principle was applied.
Absolute liability, admitting no defences, amounts to a “no fault” system. In a no-fault
system, the person or company made liable needs to know in advance what the quantum
of liability will be, so that he can obtain liability insurance. An indeterminate sliding
scale seems unconstitutionally vague, as well as bad public policy. If the objective of
providing immediate relief is to be achieved, the mandatory public liability insurance
should be on the principle of “no fault” liability as it is limited to only relief on a
‘limited’ or ‘fixed’ scale. The Public Liability Insurance Act, 1991, was thus enacted.
In Indian Council for Enviro Legal Action v UOI (AIR 1996 SC 1446), the apex court,
approving the rule laid down in Shriram case, reiterated that once the activity carried on
is hazardous or inherently dangerous, the person carrying on such activity is liable to
make good the loss caused to any other person by his activity irrespective of the fact
whether the reasonable care he took while carrying on his activity is by far the most
appropriate one. It is the enterprise alone that has the resource to discover and guard
against hazards or dangers and not the person affected and the practical difficulty (on the
part of the affected person) in establishing the absence of reasonable care or that the
damage to him was foreseeable by the enterprise.
Thus, the respondents, in this case, were held absolutely liable to compensate for the
harm caused by them to villagers in the affected area, to the soil and to the underground
water and hence, are bound to take all necessary measures to remove the sludge/ other
pollutants lying in the affected area, and also liable to the cost of the remedial measures
required to restore the ecology of the affected area.
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Hazardous Premises and Absolute Liability
Leading Case: KLAUS MITTELBACHERT v EAST INDIA HOTELS LTD.
(AIR 1997 Del. 201)
In this case, there was a contract between Lufthansa, a German Airline and Hotel Oberoi
Inter-Continental, Delhi for the stay of crew of Lufthansa as guests in the hotel. The
plaintiff, a copilot, while staying in the hotel received serious head injuries during
swimming in the hotel’s swimming pool. The pool was found to be having a defective
design. The plaintiff was paralyzed and continued in agony for 13 years before he died.
In an action for damages by the plaintiff, it was held that for an action under law of torts
for compensation the plea of stranger to contract (raised by the defendant) was irrelevant.
Due to hazardous nature of the premises, the rule of absolute liability was applied and the
defendants were required to pay exemplary damages amounting to 50 lac rupees. The
principle of res ipsa loquitur also clearly applies here. The hotel authorities failed to
explain as to what happened after swimmer plunged into water and before he came out
injured. Inference based on res ipsa loquitur stands drawn that the accident took place
from want of care on their part.
Explaining that in a 5-star hotel, the duty of care was higher in respect of defective
premises, the court observed: “A five-star hotel charging a high or fancy price from its
guests owes a high degree of care to its guests as regards quality and safety of its
structure and services it offers and makes available. Any latent defect in its structure or
service, which is hazardous to guests, would attract strict liability to compensate for
consequences flowing from its breach of duty to take care.
The five-star price tag hanging on its service pack attracts and casts an obligation to pay
exemplary damages if an occasion may arise for the purpose. A five star hotel cannot be
heard to say that its structure and services satisfied the standards of safety of the time
when it was built or introduced. It has to update itself with the latest and advanced
standard of safety”.
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In appeal in E. I. Ltd v Klaus Mittelbachert (AIR 2002 Del. 124), it was held by the
Division Bench that the death of the claimant while the suit was pending resulted in the
end of cause of action. Thus, the earlier Single Judge decision was reversed. However,
the principle laid down in the latter’s decision still holds goods.]
Electricity is a Hazardous Substance
In U.P. State Electricity Board v Dist. Magistrate, Dehradun (AIR 1998 All. 1), the High
Court observed that it is beyond doubt that electricity is ‘hazardous’ since it can injure or
even kill people if not properly handled. Further, electricity is a ‘substance’ since
electrons which constitute it, are material particles having specific physico-chemical
properties. Thus, electricity is a ‘hazardous substance’.
PUBLIC LIABILITY INSURANCE ACT, 19919
The Bhopal Gas Leak disaster and the Shriram Gas Leak tragedy provided an impetus for
the passing of the Public Liability Insurance Act, 1991. The Act provides for ‘mandatory
insurance’ for the purpose of providing an immediate relief to the persons affected by
accidents occurring while handling any hazardous substance. The Act covers every
industry, public or private, which handles hazardous substances.
A ‘hazardous substance’ is one which, by reason of its chemical or physio-chemical
properties or handling, is liable to cause harm to human beings, other living creatures,
property or the environment. ‘Handling’ in relation to any hazardous substance, means
the manufacture, processing, treatment, package, storage, transportation, use, collection,
destruction, conversion, etc. of such hazardous substance.
The Act incorporates the ‘no-fault’ liability standard. Thus, a defendant is liable for
accidental harms caused without any intention and negligence on his part. Section 3 of
the Act lays down an absolute
______________________
9.
Write a short note on 'Public Liability Insurance Act, 1991.’
[C.L.C. 92/93/99/2001/2004]
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Law of Torts
duty on the owner to compensate all deaths, injuries and damages to property which
result from the accident. The entire burden of paying compensation is not to exceed the
paying capacity of the owner.
Section 4 of the Act ordains every owner to take out, before he starts handling any
hazardous substance, one or more insurance policies providing for contracts of insurance
whereby he is insured against liability to give relief in case of death or injury to a person,
or damage to any property, arising from an accident occurring while handling any
hazardous substance. In respect of already established units, insurance policy or policies
to be taken as soon as possible, but within a maximum period of 1 year from the
commencement of the Act.
The Central Government may exempt any owner from taking out insurance, viz. the
Central or State Government or any corporation owned or controlled by them, or any
local authority. Provided that no such order shall be made in relation to such owner
unless a fund has been established and is maintained by that owner.
Reliefs and Penalties - The immediate relief is provided on a fixed scale, as provided
under the Act. The relief in the case of death is Rs. 25,000. The relief is also provided for
medical expenses (up to Rs. 12,500), loss of wages, and damage to property. The District
Collectors are placed under a duty to make summary inquiry and disburse relief quickly.
The Act provides for stiff penalties to the defaulting owners - Rs.1 lakh fine and up to 7
year imprisonment (Section 14). These penalties are similar to that provided under the
Environment Act, 1986, and the Water Act, 1974, and the Air Act, 1981. By 1992
amendment to the Act, the liability of insurer has been limited to the amount of premium
(proportionate to the paid-up capital of the unit); in addition, a similar amount (as of
premium) has to be given by the owner to an Environment Relief Fund. However, the
liability of the polluter (insured) is not limited. In other words, availability of immediate
relief would not prevent the victims to go to courts for claiming larger compensation.
A Public welfare law - The Act is very useful for the weaker sections, who have little
capacity to secure compensation, as the industries do not often readily compensate the
victims. Under Section 8 of the Act, the right to claim relief under the Act is without
prejudice to such claim under any other law for the time being in force in India.
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No Fault Liability: Strict and Absolute Liability
The Act also encourages industrial growth. The very process of compulsory insurance
will create a “safety consciousness” among the industries. Also the industries are
safeguarded against unanticipated liabilities in the event of accidents, as prior insurance
will enable them to face such situations.
However, under the Act, no scope has been provided for social action litigation and
public participation in claiming the compensation. The Act intends to protect the innocent
victims especially the weaker sections of the society but on the other hand it discourages
the representative suit, class action and social action litigation. Also, the exemption from
‘no-fault liability’ to Government or Government-owned or controlled corporations or
local authorities has been criticized as it may lead to the dilution of the concept of
mandatory insurance under the Act.
National Environment Tribunal Act, 1995
National Environment Tribunal Act, 1995, was formulated in view of the fact that civil
courts litigations take a long time (as happened in Bhopal case). The Act provides for
speedy disposal of environment related cases through environment tribunals. The Act
provides for strict liability for damages arising out of any accident occurring while
handling any hazardous substance. Under the Act, four benches of the tribunal will be set
up in Delhi, Calcutta, Madras and Bombay and 8,000 of the most Hazardous industrial
units in the country will be brought under its security.
FURTHER QUESTIONS
Q.1. (a) SFI, an industry was manufacturing caustic-soda, chlorine, etc. The oleum gas
stored by the industry leaked. Plaintiff A, who was then 2 miles away from the industry
suffered physical injuries and was hospitalized. The plaintiff claimed Rs. 1,00,000 as
compensation. The industry in defence pleaded no negligence on its part in keeping and
maintaining storage tanks, and that the doctrine of strict liability also has no application.
Argue the case for the plaintiff. Decide, giving reasons.
[C.L.C.-92]
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(b)
Some poisonous plants grow up on the land of Z in his absence. The branches of
the plants grow and cross the boundary of his land and are eaten by the horse of A. The
horse dies in consequence thereof. Discuss the liability of Z under the rule in Rylands v
Fletcher.
[C.L.C.-94]
A grows on his land poisonous plants, but constructs a seven feet high wall to ensure that
the branches of the plants do not cross the boundary of his land. In spite of this, the
branches cross the boundary and are eaten by two horses of B who die in consequence
thereof. Can B claim damages from A? Will it make any difference to your answer if the
horses had entered the land of A and then eaten the plants?
[C.L.C.-97]
A.1.(a) In M.C. Mehta v Union of India (AIR 1987 SC 1086), the Supreme Court laid
down a “no-fault” liability (‘stricter then strict’) standard according to which an industry
is liable irrespective of any negligence on its part. Thus, in the present case, SFI
(industry) is absolutely liable.
(b)
For the application of the Rylands rule, a dangerous thing must escape and the use
of land must be non-natural. The liability arises not because there was any fault or
negligence on the part of person, but because he kept some dangerous thing on his land
and the same has escaped from there and caused damage. That is why it is known as the
rule of strict liability. The basis of liability is the foreseeable risk inherent in the very
nature of the activities.
For the application of the Rylands rule the defendant should brought or collect on his
land some dangerous thing. The thing escaping should have been under the occupation
and control of the defendant. In the present case, some poisonous plants grow up on the
land of Z in his absence. Thus, Z has not brought or collected such plants and he has no
control over them. In Giles v Walker it was held that the owner of the land is not bound
to prevent the growth of thistles on it and he is not responsible for the escape of thistle
seeds. Thus, Z is not liable under the rule in Rylands v Fletcher.
If there is projection of the branches of a poisonous tree on the neighbour’s land this
amounts to an escape and if the cattle lawfully
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No Fault Liability: Strict and Absolute Liability
there on the neighbour’s land are poisoned by eating the leaves of the same, the defendant
will be liable under the rule [Cheater v Cater (1908) 1 K.B. 247], If the plaintiff’s horse
intrudes over the boundary and dies by nibbing the poisonous plant there, the defendant
cannot be liable because there is no escape of the vegetation in this case - Ponting v
Noakes (1894) 2 Q.B. 281. The damage would not have occurred but for the horse’s own
intrusion into the defendant’s land. Thus, in the case in question, B can claim damages
from A in the first situation, but not in the second situation.
Q.2. Examine the applicability of rule in Rylands v Fletcher in following cases:(a)
A and B resided on adjacent farms. B kept a number of beehives. One day, B for
removing honey, smoked the hives with a ‘smoker’ without warning A, who was tackling
his horse. The bees, irritated by the smoking operation, swarmed upon A and his horse.
The horse dragged A, and threw him violently against a wall, causing him severe injuries.
(b)
Z carried on the business of bone manure manufacturer on premises near P’s
farm. For the purpose of his business Z had on his premises a heap of bones, which
caused large number of rats to assemble there. The rats made their way from Z’s premises
on to P’s land, and ate his com, causing substantial loss.
(c)
Where an occupier of land allowed thistles, which he had not brought on to his
land, but which were its natural produce, to seed, so that the seed was carried on to the
adjoining land which was thereby injured.
A.2.(a) B is liable to A. Anyone who keeps bee-hives does so at his own peril, and is
responsible for all consequent injuries done to his neighbours [O’Gorman v O’Gorman
(1903) 2 IR 573].
(b)
Z is not liable because the bones were not kept in unusual quantity and rats were
not owned by him [Steam v Prentice Brothers, Limited (1919) 1 KB 394],
(c)
The owner of the land is not bound to prevent the growth of thistles on it and he is
not responsible for the escape of thistle seeds [Giles v Walker (1820) 24 QBD 656].
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Q.3. Examine the differences between the rule in Rylands v Fletcher and the rule in M.C.
Mehta v Union of India. Which rule will you advocate in the present-day Indian Society?
[C.L.C.-94]
Is there any difference between strict liability and absolute liability?
[I.A.S.-2006]
A.
3. The M.C. Mehta rule is more suitable to the social and economic conditions
prevailing in India at the present day. India is fast becoming a highly industrialized
economy. The industries do not often readily compensate the victims, the weaker
sections. The ‘high’ risk involved (to the life and property of the people) by the running
of these industries can only be commensurated by an absolute liability standard.
Otherwise, the industries could escape liability by pleading some exception to the
Rylands rule.
Rylands Rule
M.C. Mehta Rule
1.
The Rylands rule requires nonnatural use of land by the defendant and
escape from land of the thing which causes
damage.
1.
The rule in M.C. Mehta is not
dependant on these conditions (However,
like Rylands rule, it also deals with
dangerous things).
2.
The Rylands rule will not cover
cases of harm to persons within the
premises for the rule requires escape of
thing which causes harm from the
premises.
2.
The Mehta rule makes no such
distinction between persons within the
premises where the enterprise is carried on
and persons outside the premises, for
escape of the thing causing harm, from the
premises, is not a necessary condition for
the applicability of the rule.
3. It is called the rule of ‘Strict liability’.
However, the Rylands rule though strict in
the sense that it is not dependant on any
negligence on the part of the defendant and
in this respect similar to the new rule, is not
absolute as it is subject to many exceptions
e.g. Act of God, statutory authority, act of
stranger, etc.
3.
It is called the rule of ‘absolute
liability’. It is not only strict but absolute
and is subject to no exception. Thus, where
the damage is caused due to the act of a
stranger, say due to sabotage the owner of
the industry is still liable. Thus, it provides
a ‘stricter then strict’ liability.
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No Fault Liability: Strict and Absolute Liability
4. Damages awardable where the Rylands 4. Where the Mehta rule is applicable, the
rule applies will be ordinary or court can allow exemplary damages and the
compensatory.
larger and more prosperous the enterprise,
the greater must be the amount of
compensation payable by it.
Q.4. As a part of ‘grow more food’ campaign, a bone manure manufacturing plant was
set up by a State government in an agricultural area. As the raw material, a heap of bones
was collected on the premises of the plant which caused a large number of rats to
assemble there, which entered the nearby plaintiffs land, ate his corn causing substantial
loss to him. The plaintiff claimed damages from the Government pleading that
Government should be held liable for the loss, irrespective of the question of negligence.
The Government proved inter alia that the plaintiff along with other landowners were
beneficially using the manure so manufactured and he took an active part in persuading
the Government to set up the manure plant there. Can the Government be held liable on
the basis of the rule in Rylands v Fletcher? [C.L.C.-95]
4.
The present problem is based on the two cases:(i)
N. Narayana Bhattathrippad v Travancore Govt. (AIR 1966 Trav- Co. 225) - See
the text of the present chapter.
(ii)
Steam v Prentice Brothers, Limited (1919) 1 KB 394. The Government will not
be liable because of the following reasons
(1)
The bones were not kept in unusual quantity (i.e. there was no non-natural use of
land to attract Rylands rule).
(2)
The rats were not owned by the Government (i.e. the thing escaping to the
plaintiff’s land was not under the occupation and control of the Government to attract
Rylands rule). Further, rats were not accumulated on the land.
(3)
Two exceptions to the Rylands rule are attracted in the case- first, the plaintiff’s
consent (to the setting up of bone plant), and, second, the act of stranger or thing party
(rats).
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Q.5. A is the owner of a house adjacent to a factory, the machinery of which has, by its
vibrations, weakened and caused cracks to appear in the ceiling of A’s drawing-room.
While A is showing B, a prospective purchase, over the house, the ceiling falls and
injures both A and B. Has A any remedy against the owner of the factory?
A.5. The vibration is a dangerous force, for the escape of which the owner of the factory
is liable to A on the principle of Rylands v Fletcher. In Hoare & Co. v McAlpine (1923)
Ch. 167, the vibrations caused by the driving of piles by the defendants in preparation of
a building site, damaged an ancient hotel of the plaintiffs which was on the other side of
the road. The defendants were held liable.
Q.6. X, an industry situated in a thickly populated area is engaged in production of
Methyl Isocyanate gas. Due to an earthquake there was rupture in the underground
storage tank. The gas leaked and spread in the area resulting in the death of Z and his
family. Is X liable for the tragedy? Decide. [L.C.II-97]
A.6. Yes, as X is engaged in a hazardous or inherently dangerous activity and thus
subject to ‘absolute liability’. Such liability is not subject to any of the exceptions (viz.
act of God) which operated vis-a-vis the tortious principle of strict liability under the rule
in Rylands v Fletcher.
Q.7. A, a private company undertook the management and control of an Ordnance factory
where they made high explosive shells for the Government. One day there was an
explosion in the factory in which one of the employees Z was injured. Z claims damages
under the rule in Rylands. Decide. Will your answer be different if Z claims damages
under the rule in M.C. Mehta case? [C.L.C.-98]
A.7. There will be no liability under the Rylands rule because there was no escape of the
thing outside the defendant’s premises. However, Z will succeed under the M.C. Mehta
rule in view of the absolute liability of an industry engaged in hazardous activity.
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7
Vicarious Liability including State Liability
Generally speaking a person is liable for his own acts, but in many cases he may be held
responsible for the torts committed by others. This is known as the ‘vicarious liability’
i.e. liability incurred for, or instead of, another. The common examples of such a liability
are: Liability of the principal for the tort of his agent, Liability of partners for each
other’s tort, and, Liability of the master for the tort of his servant.
As Salmond observes, “In general, a person is responsible only for his own acts, but there
are exceptional cases in which the law imposes on him vicarious responsibility for the
acts of others, however, blameless himself.”
Vicarious liability is a kind of ‘strict liability’, however, in vicarious liability the liability
arises because of the relationship between the principal and the wrongdoer, while in the
case of strict liability the liability arises out of the wrong itself.
Liability for another’s wrongful acts or omissions can arise in the following three ways:
(a)
Liability by ratification i.e. where the defendant has authorised or ratified the
particular wrongful act or omission. If one person commits a tort, purporting to act on
behalf of another, but without his authority, and that other subsequently ratifies, and
assents to that act, he thereby becomes responsible for it.
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The person ratifying the act is bound by the act, whether it be to his detriment or
advantage. Further, he must have full knowledge of its tortuous character. Also,
ratification must take place at a time when he could himself have done that act. An act
which is illegal and void cannot be ratified.
(b)
Liability arising out of a special relationship i.e. where the defendant stands to the
wrong-doer in a relationship which makes him answerable for wrongs committed by the
latter, though not specially authorised e.g. master and servant; owner and independent
contractor; principal and agent; company and its directors; firm and its partners; guardian
and ward.
(c)
Liability by abetment i.e. where the defendant has induced another to commit a
wrong. In such cases, those who abet the tortuous acts are as much liable as the tortfeasors themselves. In cases of unlawful interference with contractual relations, if a
person procures a breach of a contract by illegal means or with a malicious intent, he
becomes liable to the person who suffers injury thereby.
Liability Arising Out of a Special Relationship
(1)
Principal and Agent
When the principal expressly or impliedly authorizes some act to be done he is liable for
such an act of the agent if the same has been in the course of performance of his duties as
an agent. The law attaches liability to a principal for the wrongful act of his agent, on the
ground that it is the principal who has selected the agent.
In Dinbai R. Wadia v Farukh Mobendjina (1957) 59 Bom. I.L.R., it was held that the test
of agency is not physical control, but the right to control. When a person does an act with
the consent of the principal, and the principal is interested in the performance of the act,
the principal would be held liable for the act. Even if the principal had the right to
control, and not actual physical control, over the agent in respect of that act, he would he
held responsible.
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Vicarious Liability including State Liability
Where the owner of a car asked his friend to drive the car and he causes an accident, the
owner will be liable [Ormrod v Crosville Motor Services Ltd.]. In Llyod v Grace, Smith
& Co. (1912) A.C. 715, the managing clerk of a firm of solicitors (defendants) while
acting in the ordinary course of his business committed a fraud against a client. Although
the agent here had acted solely for his own personal benefit the defendants were held
liable because the agent was acting in the course of performance of his duties as an agent.
In State Bank of India v Shyama Devi (AIR 1978 SC 1263), the court held that if a bank
employee receives some cash and cheques from his friend, in his personal capacity
without giving any proper receipts, for depositing the same with the bank, the bank
cannot be made liable, if the employee misappropriates the cash and cheques.
(2)
Partners
The relation of partners inter se is that of principal and agent, and each partner is,
therefore, liable to third persons for the neglect or fraud of his fellow-partner. If any one
of the partners commits any tort in the ordinary course of business of the firm all the
other partners of the firm are liable for that to the same extent as the guilty partner. The
liability of each partner is joint and several.
(3)
Guardian and Ward
Guardians are not personally liable for torts committed by minors under their charge. But
they can sue for personal injuries to minors under their charge on their behalf.
A son obtained from his mother, who had authority to grant it, permission to drive his
father’s motor-car. The son wanted the car for his own purpose, in order to drive two girlfriends to their home. Neither the father nor the mother knew about the girls. On the way
back, due to the negligent driving of the son, the car met with an accident, and a friend
who had accompanied the party was killed. In an action by the administrator of the
deceased man against the father as the owner of the car, it was held that the son was not
driving the car as his father’s servant or agent, or for his father’s purposes, and, therefore,
the father was not liable for his son’s tortuous acts [Hewitt v Bonvin (1940) 1 K.B. 188].
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Law of Torts
(4)
Company and its Directors
Companies are liable for torts committed by their servants in the course of their
employment. But the wrongful act complained of should be intra vires and not ultra vires
(i.e. it should be within the power of the company) and should be done for the company.
Directors are personally responsible for any tort which they themselves commit or direct
others to commit, although it may be for the benefit of the company.
(5)
Master and Servant
A master is liable for the torts committed by his servant while acting in the course of his
employment. The servant is also liable. They are considered to be joint tort-feasors and
their liability is joint and several. The master’s liability arises when the following
essentials are present:
(i)
The tort was committed by his servant;
(ii)
The servant committed the tort while acting in the course of the employment.
The master’s liability arises only when both these conditions are satisfied.
Principles on which the Vicarious Liability is Based
(a)
Respondeat superior1 - The doctrine of liability of the master for the act of his
servant is based on the maxim respondeat superior which means ‘let the principal be
liable’/ ‘let the superior be responsible’ and it puts the master in the same position as if he
had done the act himself. This rule has its origin in the legal presumption that all acts
done by the servant in and about his master’s business are done by his master’s express or
implied authority and are, in truth the acts of the master.
The reasons for the maxim seem to be: (i) the difficulty in the way of proving actual
authority; and, (ii) the better position of the master to meet the claim because of his larger
pocket and also ability to pass on the burden of liability through insurance. In the absence
of such a rule, a rich man, who employs a poor servant to commit a wrong, would go
scot-free, and the person wronged would not be compensated. Further, it is also evident
that imposition of such liability on the master helps to prevent accidents, because the
master himself
________________________
1. Write a short note on Respondeat Superior.
[L.C.I.-93/95]
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would be more careful in choosing the servant than he would have been if the rule were
otherwise.
The liability arises even though the servant acted against the express instructions, and for
no benefit of his master [Limpus v London General Omnibus Co. (1862) 1 H. & C. 526].
However, the liability is not unlimited. In a case, the issue was whether, under the
doctrine of respondeat superior, a client is liable for the tortuous conduct of his lawyer,
which causes injury to a third party. Mr. H was returning home after representing his
client’s case when the accident occurred (in which the plaintiff’s sustained serious injures
in a collision due to negligence of Mr. H, who was in an intoxicated condition at the
relevant time). The client denied any vicarious liability on his part. Held that even though
the relationship between the client and Mr. H was one of the agency at the time of the
collision, Mr. H was not engaged in the furtherance of the client’s business to such a
degree that it could be said that the client had the right to direct and control the physical
conduct of Mr. H. Accordingly, it was held that the client was not vicariously liable for
the consequences of Mr. H’s misconduct [Brinkly v Farmers Elevator Mutual Insurance
Co., 485 F 2nd 1283 (US)].
(b)
Qui facit per alium facit per se - Vicarious liability also derives validity from the
maxim qui facit per alium facit per se, which means ‘he who does an act through another
is deemed in law to do it himself’. A person who puts another in his place to do a class of
acts in his absence, necessarily leaves him to determine, according to circumstances that
arise, when an act of that class is to be done, and trusts him for the manner in which it is
done. Consequently, he is answerable for the wrongs of the persons so entrusted, either in
the manner of doing such an act, or in doing such an act under circumstances in which it
ought not to have been done, provided that what is done is no* done from any caprice of
the servant, in the course of his employment.
(c)
Public policy - It is important to note that the doctrine of vicarious liability is no
more justified simply by the principles embodied in the above stated maxims. In recent
times, the vicarious liability has come to be recognised on the underlying idea of
expediency and public policy. It is in a way to effect the fair distribution of public gains.
Pollock has rightly observed: “I am answerable for the wrong of my servants or agents
not because he is authorized by me or personally represents me
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but because he is handling my affairs and I am bound to see that may affairs are
conducted with due regard to the safety of others.”
Thus, “public policy, social convenience and rough justice” is the underlying idea. In
Imperial Chemical Industries case, Lord Pearce said: “The doctrine of vicarious liability
has not grown from any clear, logical or legal principle but from social convenience and
rough justice. The master having (presumably for his own benefit) employed the servants
and being (presumably) better able to make good any damage which may occasionally
result from the arrangement, is answerable to the world at large for all the torts
committed by his servant within the scope of it.”
Who is a Servant?
A servant is a person who voluntarily agrees, whether for wages or not, to subject
himself, and at all times during the period of service, to the lawful orders and directions
of another, in respect of certain work to be done. In short, a servant is a person employed
by another to do work under the directions and control of his employer.
Servant and Independent Contractor2
A servant should be distinguished from an independent contractor. A master is liable for
the tort committed by his servant only. A servant is an agent to whom the master not only
instructs as to what is to be done but also direct him as to how the work is to be done. An
independent contractor is one who undertakes to do certain work and regarding the
manner in which the work is to be done he is his own master and exercises his own
discretion. My car driver, for example, is my servant and for his negligent driving I will
be liable. On the other hand, if I hire a taxi for going from one place to another the taxi
driver is an independent contractor and if he drives negligently I will not be liable for his
wrongful act.
When the owner of a motor-car leaves his vehicle at a workshop for repairs, the
relationship between the owner and the proprietor of the
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2.
Even if the master cannot actually control the way in which the servant does his
work, because the servant is a skilled professional who knows his job and will carry it out
in his own way, the master nevertheless remains liable for the negligence of the servant.
Comment.
[I. A. S.-99]
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workshop is not that of a master and servant. In such cases, the proprietor is in the
position of an ‘independent contractor,’ and if he takes the vehicle out, and an accident
follows, the owner is not vicariously liable (Devinder Singh v Mangal Singh AIR 1981 P
& H 53).
It is often said that the law relating to liability of an employer for wrongs committed by
an independent contractor is puzzling. Of course, when the employer has intentionally or
negligently assigned the work to an independent contractor no difficulty arises in
imposing tortuous liability on the employer. But other situations create difficulties- partly
because the policy reasons for imposing liability on the employer are not clear. Thus,
statutory provisions e.g. legislation relating to motor vehicles, may lead to the court
holding the owner of a car liable in tort for injuries caused by an employee, not of the
owner but of the repairer (Guru Govekar v Filomena F. Lobo AIR 1988 SC 1332).
In some exceptional cases, an employer can be made liable for the wrongs of the
independent contractor (viz. strict liability). Also, if an employer authorizes the doing of
an illegal act or a tort (e.g. a passenger of a taxi orders the taxi-driver to drive fast), or
subsequently ratifies the same, he can be made liable for such an act. Where the employer
retains his control over the contractor, and personally interferes, so as to make himself a
party to the act which occasions the damage, the employer becomes liable. In Burgess v
Grey (1845) 1 C.B. 578, the defendant employed a contractor to construct a drain. In
doing the work, the contractor left a heap of gravel on the road. The defendant was
warned by a constable to remove the heap of gravel, and he undertook to cart the gravel
away. Meanwhile, the plaintiff, a passerby, slipped upon the heap of gravel, and was
injured. Held that the defendant, by his own conduct, had interfered with the work of the
independent contractor, and thus, liable for the negligence of the latter.
Further, an employer may be liable for the negligence of independent contractor if the
employer carelessly appoint an independent contractor where the risk of harm, unless
precautions are taken, is foreseeable. Where the employer entrusts the work to an
independent contractor known to be incompetent, or fails to give proper instructions to
him (especially where a legal or statutory duty is imposed on the employer to carry out a
particular work efficiently), the employer cannot escape liability for the negligence of the
latter. Here, the liability of the employer is more for his own negligence, rather than for
the negligence of the
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contractor. Thus, the occupier of a house was held liable for personal injuries caused to
passer-by by the fall of a lamp suspended over his door-way, although he had recently
employed an independent contractor to repair the lamp [Tarry v Asthon (1876) 1 Q.B.
314],
Though generally a servant is under the control of his master regarding the manner of his
doing the work, there are various cases in which the master does not or cannot control the
way in which the work is to be done. For example, the captain of a ship or a surgeon in a
hospital may be servants even though they are not to be directed regarding the way they
are to do their work. The recent trend is to include even those persons into the category of
“servants” who are not subject to such control viz. hospital staff (even part-time
employees) and borrowed servants, thus enormously increasing the ambit of the branch
of vicarious liability. The trend of modem authorities is to apply ‘hire’ and ‘fire’ test (and
not the ‘control’ test) viz., a person who employs another person and is his pay master,
and has the power to ‘fire’ (discharge) him, is the master for the purpose of vicarious
liability.
Hirer of the Servant whether Vicariously Liable
When a master lends the services of his servant to another person and the servant then
commits a tort the question, which arises, is whether the permanent master would be
liable for the servant’s act or the person who is making temporary use of the servant’s
services. That one of the two, who has the power to control the manner in which the act
of the servant is to be done, will be liable.
When a master lends his servant to another person, in a general sense, he is a servant of
the master who lends him. But from the practical point of responsibility, when he is doing
the work of, and under the orders or control of, the other employer to whom he is lent, he
is, in the eyes of the law, the servant of the latter, and the latter is, in the eyes of the law,
his employer.
In Mersey Docks & Harbour Board v Coggins & Griffiths (Liverpool) Ltd. (1947) A.C.
1, a harbour board, who owned a number of mobile cranes each driven by a skilled driver
as a regular part of their business, let out a mobile crane along with a skilled driver to
certain stevedores for loading a ship. Due to the negligence of the driver, while loading a
ship, X was injured. The harbour board that was permanent employer was held liable.
The stevedores were held not liable because
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they had simply the power to tell the driver what particular cargo was to be operated.
In Smt. Kundan Kaur v S. Shankar Singh (AIR 1966 Punj. 394) the partners of a firm
temporarily gave their truck along with a driver on hire to a transport company for
transporting certain goods. Due to rash and negligent driving of the driver the vehicle met
with an accident and an employee of the transport company was killed. The court
observed that there was only a transfer of services and not of control of the driver from
the general employer to the hirer of vehicle and as such the partners of firm were liable.
The decision of the various other High Courts are also in consonance with the decision in
Mersey Dock’s case. In case of hiring, a presumption has been generally raised that there
is only transfer of services rather than that of the servant. The general employer is free to
rebut the presumption and prove that when the servant was lent, effective control over
him was also transferred and thereby he can avoid his liability.
In R. S. R. T. C. v K. N. Kothari (AIR 1997 SC 3444), the apex court held that the
transfer of effective control over a servant would make the transferee of the vehicle liable
for vicarious liability. In this case, the RSRTC hired a bus and a driver for running a bus
on a specified route. The Corporation also engaged a conductor, who managed the bus,
collected fare from passengers and also exercised control over the driver. Held, that for
an accident caused by the driver, the hirer (RSRTC) was vicariously liable,
notwithstanding the fact that the driver continued to be on the pay roll of the original
owner.
The Course of Employment3
To hold a master liable for the wrongful act of a servant, it must be shown that such act
was committed in the course of the master’s business, so as to form part of it, and not
merely coincidental in time with it. “A wrong falls within the course of employment of
the servant
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3.
“A wrong falls within the course of employment of the servant if it is necessarily
incidental to something which servant is employed to do.” Explain. [I.A.S.-94]
'A master is not responsible for a wrongful act unless it is done in the course of
employment.’ Comment and explain the circumstances when wrongful acts are deemed
to be done “in the course of employment.” Refer to decided cases.
[I.A.S.-2009]
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if it is necessarily incidental to something which servant is employed to do.” For torts
committed in any manner beyond the scope of employment, the master is liable only if he
has expressly authorised, or subsequently ratified, such an act.
An act falls within the course of employment when either the master has authorized the
same or it is a wrongful mode of doing some authorized act e.g. if I authorize a servant to
drive and he drives negligently, or I authorize a servant to deal with the clients and he
deals with them fraudulently, or if I authorize a servant to help the railway passengers but
he mistakenly causes harm to them. In all these cases it may be said that the master has
not authorized the act, but he has put the agent in his place to do that class of acts, and he
must be answerable for the manner in which the agent has conducted himself in doing the
business which it was the act of the master to place him in [Barwick v English Joint
Stock Bank (1867) L.R. 2 Ex. 259)].
However, if I send my servant to make some purchases for me from the market and he
utters some defamatory words there or assaults someone, the defamation by my servant is
outside the course of employment and I cannot be made liable for the same. If the
unauthorized and wrongful act of the servant is not so connected with the authorized act
as to be a mode of doing that authorized act, then the master is not liable, for in such a
case the servant is not acting in the course of employment, but is going outside it (State of
Maharashtra v Kanchanmala Vijay Singh AIR 1995 SC 2499).
If what the servant did was what he was authorised to do, and if the wrong was the
natural consequence of something done by a servant, however carefully it might have
been done, the defendant (master) would be answerable. A master is liable, not only for
the wrongful acts of the servants, whether done carefully, bona fide, negligently,
intentionally, willfully or even contrary to express orders, but also fraudulently. A master
is liable, though not in criminal proceedings, yet in civil action, even in respect of
criminal acts of his servant, provided they are committed in the course of his
employment.
The owner is liable for the negligence of the driver (servant), not only if he is acting in
the course of his employment, but also when the driver is, with the owner’s consent
driving the car on the owner’s business or for the owner’s purposes (Pushpabai
Purshottam Udeshi
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v Ranjit Ginning & Pressing Co. AIR 1977 SC 1735). The test applied was ‘purpose’ of
the master- an extension of the concept of employment. Another kind of extension of the
concept of employment has been noted in a case like this: A government jeep was being
driven for official purposes. The driver was somewhat drunk and allowed a clerk to drive
vehicle, causing an accident. The government was held to be liable, on the basis that what
had been done was an authorized act in an unauthorized manner (State of Maharashtra v
Kanchanmala Vijay Singh AIR 1995 SC 2499). It will be seen that here the extension
was really from an authorized employee to an unauthorized employee [Cf. Likiw v
Samuels (1963) 2 All ER 879].4
Some more illustrations in this regard are as follows:(i)
When the managing clerk of a firm of solicitors, while attending a client on behalf
of the firm, fraudulently got the property of the client transferred in his own name the act
was held to be done in the course of his employment and the firm was held liable [Llyod
v Grace, Smith & Co. (1912) A.C. 715]. In this case, the plaintiff, a widow, owning a
small cottage and some money, due on a mortgage to the extent of £1,000, approached
the manager of the defendants, a firm of solicitors, for advice as to how to improve her
income. She was advised by the manager to sell the cottage and to collect the money.
However, if a customer of the bank, gives some amount/ cheque to the bank employee (in
his capacity as a friend) for being deposited in the account, without obtaining any receipt
for the same, the bank employee is not deemed to be acting within the scope of his
employment and if he misappropriates the amount the bank will not be liable (State Bank
of India v Shyama Devi AIR 1978 SC 1263).
The plaintiff, a silversmith, engaged the defendant’s motor-car and driver, for the purpose
of being driven about Bombay with samples of silver-ware to be shown to customers.
While the plaintiff was temporarily absent from the car in the course of business, the
driver,
___________________
4. See, P.M. Bakshi, “The Law of Torts" in Verma & Kusum (Eds.), Fifty Years of
the Supreme Court of India, pp. 590-620, ILI (2000).
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acting in collusion with certain thieves, drove the car into a comer, where some of the
samples were stolen by the thieves. The plaintiff sued the defendant for the value of the
goods. It was held that the defendant viz. the driver’s employer, was not liable, because
the driver, in so conspiring with thieves, was no longer acting within the scope of his
employment [Cheshire v Bailey (1905) 1 K.B. 237].
(ii)
In Century Insurance Co. Ltd. v Northern Ireland R.T.B. (1942) A.C. 509, A’s
servant, the driver of a petrol lorry, while transferring petrol from the lorry to an
underground tank struck a match to light a cigarette and threw it on the floor. This
resulted in the fire and an explosion causing damage to B’s property. The act of the driver
was held to be in the course of employment and A was held liable for the same. It was
observed that although the act of lighting a cigarette was done by the driver for his
comfort, and was an act both innocent and harmless by itself, the careless act was done in
the course of the driver’s employment and was a negligent mode of conducting his work.
However, in the following case, it was held otherwise. The defendant employed his
servant, a carpenter, to make a signboard in a shed lent by the plaintiff. The carpenter,
while lighting his pipe, negligently set fire to the shed. Held that the defendant was not
liable; there was no negligence in making the signboard (the master’s business) but only
in smoking the pipe (the servant’s business), and mere contemporaneity did not make it
part of a single transaction done on the master’s behalf. True, he was negligent in taking
care of the shed, but the only business the master employed him for was to make a
signboard [Williams v Jones (1865) 3 H & C. 602].
(iii)
In Roberts v Shanks (1924) 27 Bom. L.R. 548, on alighting from his car, the
defendant ordered his chauffeur to take. the car directly to the garage. The chauffeur,
however, drove the car to his own residence, took his meal, and whilst driving the car to
the garage, negligently drove it into the plaintiff’s car, and caused damage to it. Held that
the defendant was liable in damages, for, at the time of the accident, the chauffeur was
acting in the course of his employment. If the servant was going on a frolic of his
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own, without being at all on his master’s business, then of course, the master would not
be liable [Joel v Morison (1834) 6 C & P. 502].
(iv)
In Deatons Proprietary Ltd. v Flew (1949) 79 CLR, 370 (Australia), X entered the
defendant’s hotel and spoke to a barmaid, who threw a glass of beer in his face.
According to X, he had asked her a polite question, but the barmaid said that he had
insulted her. Held, that although the barmaid was liable, the defendant (i.e. the owner of
the hotel) was not liable, as the barmaid’s act was an independent personal act, not
connected to the work she was employed to perform.
This case should be compared with the following case: An intoxicated customer was
refused a further drink, whereupon he threw a glass at the barman. Not to be outdone, the
barman picked up a piece of the glass and flung it on the customer. A splinter of this
glass struck the plaintiff in the eye. Held, that the barman’s employer was liable
[Patterson v Royal Oak Hotel Ltd. (1948) N.Z.L.R. 136 (New Zealand)].
(v)
When the servant’s act is altogether different from what has been authorized the
act is out of the course of his , employment and the master will not be liable for the same.
In Beard v London General Omnibus Co. (1900) 2 Q.B. 530, at the end of the journey the
driver of a bus went to take his dinner. During his temporary absence the conductor drove
the bus in order to turn it round to make it ready for the next journey and negligently
caused an accident. Since driving was not the kind of act that the conductor was
authorized to do the conductor was acting out of the course of employment for which the
master was held not liable.
In another case, A and B were employed by C, as chauffeur and cleaner respectively of
his car. One day, A and B were sent by C with his car for repairs to a workshop. The road
leading to the workshop being closed to traffic, A had to leave the car at some distance
from the workshop, in charge of B, the cleaner, whose duty was only to clean the car, and
who was instructed not to drive the car. During A’s absence, B drove the car, and by his
negligence, dashed against a municipal lamp-post and damaged it. It was held that C was
not liable
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for the act of B, the cleaner, which lay outside the scope of his employment. Neither
would he be liable for the act of A, the chauffeur, as in leaving the car with the cleaner he
was not guilty of negligence under the circumstances [Nalini Sen Gupta v Corporation of
Calcutta, 52 Cal. 983].
In one English case, X, a truck driver, was allowed by his employer to stop for
refreshments when undertaking a long journey. One day, he parked the truck and was
crossing the road to each a cafe, when, partly due to his own negligence, he collided with
the plaintiff who was on a motor cycle. The plaintiff was injured, and he sued X’s
employer for his injuries, on the ground that at the time of the accident, X was acting in
the course of his employment. Held, that X’s employer was not liable, because although
he was permitted to obtain refreshments on long journeys, the obtaining of refreshments
was not something he was specifically employed for, and that he could not be said to be
discharging his duty towards his employer at the time when the accident occurred [Crook
v Derbyshire Stone Ltd. (1956) 2 All E.R. 447].
(vi)
If the servant himself negligently delegates his authority and instead of himself
carefully performing the duty allows the same to be negligently performed by somebody
else the- master will be liable for such negligence of the servant.5 Thus, if the driver had
allowed the conductor to drive the bus, the master would have been liable [Ricketts v
Thomas Tilling Ltd. (1915) 1 K.B. 644].
In cases where a servant, not being authorised to delegate, does so, or delegates when
there is no emergency, or in an emergency without communicating with the master
though there was time enough to obtain his order, the master will not be liable for the
conduct of the servant’s delegate, though in some cases, he might be liable for the
servant’s negligence in so delegating.
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5.
A car driver in the course of his employment leaves the ignition keys in the car
and leaves the car on a crowded road. During his absence, a trespasser gets into the car
and drives it causing an accident resulting into injuries to the plaintiff. The plaintiff sues
the car owner in tort. Decide. [I.A.S.- 2003]
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In India, there have been cases where the employer has been held to be liable for the
accidents caused by a cleaner or conductor to whom the driver had entrusted the car
temporarily [Skandia Insurance Co. v Kokilaben AIR 1987 SC 1184; Sohan Lal Passi v
P. Sesh Reddy (1996) 5 SCALE 388], To the layman, such extension of vicarious
liability may appear to be rather odd. But, in practice, the employer, who may become
liable to pay under the ‘extension’ referred to above, would, in his turn be indemnified by
his insurers, as (in modem times) insurance is compulsory by law. In Australia, statutory
provisions relating to compulsory insurance place liability upon the owner of a car for its
negligent driving, by whomsoever it is driven and in any circumstances, including even
driving by a thief.6
(vii) The employer may be liable even if he forbids his servant from doing certain act.
In Limpus v London General Omnibus Co. (1862) H & C. 526, the defendant’s driver, in
defiance of the express instructions not to race with other omnibuses, tried to obstruct a
rival omnibus and thereby caused an accident. The driver had been engaged for driving
and the act done on his part was negligent driving. In spite of the prohibition the action
was still in the course of the employment for which the master was held liable.
(viii) However, doing an act which is altogether different from the purpose for which
the servant has been engaged is outside the course of employment and if the same is also
prohibited (the driver was instructed not to give lift to unauthorized persons), the master
will not be liable [Twine v Beans Express Ltd. (1946) 1 All ER 425]. In Twines case,
and, Conway v George Wimpey & Co. Ltd. (1951) 2 K.B. 266, the act of giving lift to a
stranger was considered to be outside the course of employment, and such a stranger was
considered to be a trespasser qua the owner of the vehicle and the owner was held to be
not vicariously liable.
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6. See, P.M. Bakshi, “The Law of Torts" in Verma & Kusum (Eds.), Fifty Years of
the Supreme Court of India, pp. 590-620, ILI (2000).
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In Jiwan Dass Roshan Lal v Karnail Singh (1980), the Punjab and Haiyana High Court,
and, in Premwati v State (1977), the Rajasthan High Court followed the above stated
decisions. However, the Gujarat and the Madhya Pradesh High Courts in Mariyan Jasub
v Hematlal (1982), and, Bhaiyalal v Rajrani (1979) held that the mere fact that the person
taking the lift is a stranger shouldn’t necessarily mean that the driver’s act is outside the
course of employment.
The latter decisions appear to be more convincing. If the servant’s act otherwise falls
within the course of employment the action against the master should not be barred
merely because the lift is being given to an unauthorized person. The point is if the
servant’s act is totally unconcerned with the master’s business (e.g. when he takes his
own family in the master’s vehicle for a picnic) the act should be considered to be outside
the course of employment.
(ix)
A wrong or mistaken exercise of the power by a servant would entail master’s
liability, but doing of the acts which were ultra vires the master’s company will not make
him liable. In Poultion v London & S. West Rly. (1867) L.R. 2 Q.B. 534, a station
master, having demanded payment for the carriage of a horse, arrested and detained the
plaintiff for non-payment. The railway company had no power to arrest for non-payment
of carriage of a horse. Here, the implied authority of a station master did not extend to the
doing of acts. In the absence of any proof of express authority, the station master was
acting beyond the scope of his employment, and the company was therefore not liable for
the act of its servant.
In Bayley v Manchester S. & L. Railway (1873) L.R. 8 C.P. 148, the plaintiff was a
passenger on the defendant’s railway. He sustained injuries in consequence of being
violently pulled out of a railway carriage by one of the defendant’s porters, who acted
under a wrong impression that the plaintiff was in the wrong carriage. The court held that
the defendant Railway Company was liable.
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VICARIOUS LIABILITY OF THE STATE7
In England, under the Common Law, the king could not be sued in tort either for wrongs
actually authorized by it or committed by its servants in the course of their employment.
The individual wrongdoer was only personally responsible and he could not take the
defence of orders of the Crown or State necessity. The position has been entirely changed
after the passing of the Crown Proceedings Act, 1947, according to which the Crown is
liable for a tort committed by its servants just like a private master.
Unlike the Crown Proceedings Act, 1947, in India, we do not have any statutory
provision so far mentioning the liability of the State. Article 300 of the Constitution of
India states as under:
“The Government of India may sue and be sued by the name of Union of India and the
Government of a State may sue and be sued by the name of the State and may subject to
any provision which may be made by Act of Parliament or of the Legislature of such
State, sue or be sued in relation to their respective affairs in the like cases as the
Dominion of India and the corresponding provinces or the corresponding Indian States
might have sued or been sued if this Constitution had not been enacted.”
Article 300, thus, provides that the Union of India and the States can sue and be sued, but
as to the circumstances under which that can be done, it points to the position prevailing
before the commencement of the Constitution. The Government of India Act, 1935, also
laid down a similar provision. So does the Government of India Acts, 1915 and 1858. We
have, therefore, to see the position prevailing before 1858 when the administration was in
the hands of East India Company. The earliest enactments laid down that the Secretary of
State for India could be sued just as the East India Company. Thus, the liability of the
State today is the same as that of the East India Company in its time.
___________________
7. Critically examine the vicarious liability of the State under Articlp 3C0 of the
Constitution of India. [D.U.-2007/2011] [L.C.I-93/94/95 L.C.II-94]
“State has to answer for every wrong committed by its erring servant.” Comment. [M.S.2008]
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Doctrine of Sovereign Immunity
As regards immunity from tortuous liability, an important issue that has to be considered,
relates to position of the government. Considerable case-law and academic literature have
gathered around this topic. In fact, it is an area where constitutional history, constitutional
law, administrative law and the law of torts intermingle with each other.
The doctrine of ‘sovereign immunity’ implies that a State can claim immunity from law
just because it is sovereign (‘the king can do no wrong’). Justice Homes in Kawanan Kea
v Polyblank [(1906) 205 US 349-353], strongly supported the doctrine in the following
words: “A sovereign is exempt from suit not because of any formal conception or
obsolete theory but on the logical and practical ground that there can be no legal right as
against the authority that makes the law on which the right depends.”
However, in the present-day context, the doctrine of sovereign immunity has no
relevance because the concept of sovereignty itself has undergone a drastic change. In
practice, the importance of the immunity has been drastically reduced by reason of the
fact that where a fundamental right is violated by the State or its officers or agencies, the
immunity is not recognized, as the matter is then taken as governed, not by the principles
applicable to torts in general, but by doctrines emanating from fundamental principles of
constitutional law- a region not haunted by the ghosts of colonial legal doctrines.8
In P. & O. Steam Navigation Co. v Secretary of State, India (1861) 5 Bom. H.C.R. App.
1, it was held that if the act was done in the exercise of sovereign functions the East India
Company would not have been liable, but if the function was a non-sovereign one it
would have been liable. In the above case, maintenance of the dockyard was considered
to be a non-sovereign function and, therefore, for the negligence of its employees the
Government was held liable. In Nobin Chunder Dey v Secy, of State, India, I.L.R. 1 Cal
11, the State was exempted from liability when the function was considered to be a
sovereign one.
___________________
8. See, P.M. Bakshi, "The Law of Torts” in Verma & Kusum (Eds.), Fifty Years of
the Supreme Court of India, pp. 590-620, ILI (2000).
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However, in The Secretary of State, India in Council v Hari Bhanji, I.L.R. (1882) 5 Mad.
273, it was stated that towards its own subjects the State should be liable just like an
ordinary employer. The Law Commission of India in its First Report (1956) has stated
that the law was correctly laid down in Hari Bhanji’s case. The Bombay High Court in
P.V. Rao v Khushaldas (1949), the Punjab High Court in Rup Ram v The Punjab State
(1961), and the Supreme Court in State of Rajasthan v Vidyawati (AIR 1962 SC 933)
have also stated that in India the State should be liable just like an ordinary employer.
Leading Case: STATE OF RAJASTHAN v VIDYAWATI9 (AIR 1962 SC 933)
In this case, a Government jeep car while being taken from the workshop after repairs to
the Collector’s bungalow for the Collector’s use caused an accident due to rashness and
negligence of its driver resulting in death of a pedestrian. The widow of the pedestrian
brings an action against the State Government. The issue arose regarding the extent of
vicarious liability of the State Government in the tortious acts of its employees acting in
the course of its employment.
Holding that the jeep car was not maintained in the exercise of sovereign powers of the
State, the court observed that the general rule that the king can do no wrong has no more
universal application and its position has been changed even in England after the Crown
Proceedings Act. In India, ever since the time of the East India Company the sovereign
immunity as understood in Common Law had never operated because the East India
Company was discharging two functions i.e. acts delegated by the Crown, and
commercial activities independent of the Crown.
The court observed: “The functions of a welfare State are not confined only to
maintaining law and order, but extend to engaging in all activities including industiy,
public transport,
State trading, etc. In so far as the State activities have such wide ramifications involving
not only the use of sovereign powers
___________________
9. A question based on the facts of this case.
[D.U.-2007]
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but also its powers as employers in so many public sectors, it is too much to claim that
the State should be immune from the consequences of tortious acts of its employees
committed in the course of their employment as such. It could not be justified in principle
or in public interest not to hold the State liable vicariously for the tortious acts of its
employees.”]
However, in Kasturi Lal Ralia Ram Jain v State of U.P. (AIR 1965 SC 1039) the
Supreme Court stated that if the act of the Government servant was one, which could be
considered to be in delegation of sovereign powers the State would not be liable.
Leading Case: KASTURI LAL RALIA RAM JAIN v STATE OF U.P.
(AIR 1965 SC 1039)
In this case, the Supreme Court refused to hold the State liable for the act done by its
servants in the exercise of statutory duties. A partner of the firm of jewellers happened to
go to Meerut reaching there in the midnight. He was carrying a lot of gold and silver with
him. The police constables suspected that he was in the possession of stolen property. He
was taken to the police station. He, with his belongings, was kept in the police custody.
Next day he was released on bail and thereafter the silver was returned to him. The gold
was kept in the police Malkhana, and the same was misappropriated by the Head
Constable, who thereafter fled to Pakistan. The plaintiff brought an action against the
State of U.P.
It was found that the police officers failed to observe the provisions of the U.P. Police
Regulation in taking care of the gold seized. The Supreme Court held that since the
negligence of the police officers was in exercise of statutory powers which can also be
characterized as sovereign powers, the State will not be liable for the same. The power to
arrest a person, to search him, and to seize property found with him, are powers conferred
on the specified officers by statute. The power of the police officials in keeping the
property in the police Malkhana was a sovereign power.
The court observed: There is a distinction between acts committed by the public servants
of the State in the exercise
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of the sovereign power delegated to them and acts committed by them which are not
referable to the delegation of any sovereign power. An action for damage would not lie in
the former case, but it would lie in the latter case.
The court, however, observed that the law on the question needed immediate reforms
because the doctrine of immunity which has been borrowed in India in dealing with the
question of immunity of State in regard to the claims made against it for tortious acts
committed by its servants was really based on the Common Law principle which
prevailed in England and that principle has now been substantially modified by the
Crown Proceedings Act. It is very disturbing that a citizen whose property was seized by
process of law has to be told when he seeks a remedy in a court of law for return of his
property that he can make no claim against the State. This is not a very satisfactory
position in law. The remedy to cure this position however lies in the hand of the
Legislature.]
Vicarious Liability of the Government of India: Plea for Review10
While in England, after the passing of the Crown Proceedings Act, 1947, it is no defence
for the State that the tort committed by its servants was in discharge of obligations
imposed by law, in India, the same has been considered to be a defence in a number of
cases.
However, in order to exempt the State from liability it is further necessary that the
statutory functions which are exercised by the Government servants were exercised by
way of delegation of the sovereign power of the State. In case the tortious act committed
by the servant was in discharge of non-sovereign functions the State would be liable for
the same (Kasturi Lal’s case; State of U.P. v Hindustan Lever Ltd. AIR 1972 All. 486).
The palpable unjustness of the decision in Kasturilal's case has led to, its bypassing in
recent times. Today, the State has been held liable
___________________
10. "Although the decision of the Supreme Court in Kasturi Lal Ralia Ram Jain v State of
U.P. has not been over-ruled as such, yet subsequent decisions of the Apex Court have
greatly undermined its authority and diminished the sphere of sovereign immunity."
Explain with the help of decided cases. [D.U.-2009]
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in respect of loss or damage either to the property or to a person. Although the decision of
the Supreme Court in Kasturi Lal’s case is yet to be overruled, subsequent decisions of
the court have greatly undermined its authority and attenuated the sphere of sovereign
immunity. In Common Cause, A Registered Society v UOI (AIR 1999 SC 2979), the
court observed that “the doctrine of sovereign immunity has no relevance in the present
day context. Much of Kasturilal’s efficacy as a binding precedent has been eroded”.
The present law relating to the vicarious liability of State is not satisfactory in India. A
proper legislation is lacking in this regard. It is left to courts to develop the law according
to the views of the judges. The citizens are not in a position to know the law definitely. In
Kasturi Lal case, the Supreme Court had expressed dissatisfaction at the prevailing
position. It said that the remedy to cure this position lies in the hand of the Legislature. In
N. Nagendra Rao’s case (1994) also, the Supreme Court suggested for enacting
appropriate legislation to remove the uncertainty in this area.
The position prevailing before the commencement of the Constitution remains unchanged
though the Parliament and the State Legislature have been empowered to pass law to
change the position (Article 300 of Constitution). The unsatisfactory state of affairs in
this regard is against social justice in a welfare State. In the absence of legislation, it will
be in consonance with social justice demanded by the changed conditions and the concept
of welfare State that the courts will follow the recent decisions of the Supreme Court
(discussed below) rather than Kasturi Lal.
Leading Case: N. NAGENDRA RAO & CO. v STATE OF A.P.11
[(1994) 6 SCC 205]
In this case, appellant’s huge stocks of food grains and fertilizers were seized. He was
later found not guilty of black-marketing or adulteration. When he went to take the
delivery of the stock he found that the stock has been spoilt both in quality and quantity.
He then filed a suit for compensation which was
___________________
11. A question based on the facts of this case.
[D.U.-2008]
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Vicarious Liability including State Liability
granted in his favour by the Supreme Court. The court said that sovereign immunity was
never available where the State was involved in commercial or private function nor it is
available where its officers are guilty of interfering with life and liberty of a citizen not
Warranted by law. Further, public policy requires the court to exercise the power in law
to compensate the owner where the damage or loss is suffered by the negligence of
officers of the State in respect of cause of action for which suits are maintainable in a
civil court. Since the seizure and confiscation of appellant’s goods was not in exercise of
power which could be considered to be act of State of which no cognizance could be
taken by the civil court, the appellant’s suit could not be dismissed.
The Supreme Court held that when due to the negligent act of the officers of State a
citizen suffers any damage the State will be liable to pay compensation and the principle
of sovereign immunity of State will not absolve it from this liability.
In the context of modem concept of sovereignty (sovereignty now vests in the people) the
doctrine of “sovereign immunity” stands diluted and the distinction between sovereign
and non-sovereign functions no longer exists. The legislature, the executive and the
judiciary have been created and constituted to serve the people. According to modem
thinking the State is treated in performance of its functions like a private company.
It is therefore obviously liable for negligence of its officers.
The court observed: “No civilized system can permit an executive to play with the people
of its country and claim that it is entitled to act in any manner as it is sovereign. The
concept of public interest has changed with structural change in the society. No legal
system can place the State above law as it is unjust and unfair for a citizen to be deprived
of his property illegally by negligent act of officers of the State without remedy. Need of
the State, duty of its officials and rights of the citizens are required to be reconciled so
that the rule of law in a welfare State is not shaken. In a welfare State, functions of the
State are not only defence of the country or administration of justice or maintaining law
and order but it extends to regulating and controlling the activities of the public in almost
every sphere
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Law of Torts
- educational, commercial, social, economic, political and even marital.
The demarcating line between sovereign and non-sovereign powers for which no rational
basis survives has largely disappeared. Therefore, barring functions such as
administration of justice, maintenance of law and order, defence of the country and
repression of crime (except when Art. 21 of the Constitution breached), which are among
the primary and unalienable functions of a Government, the State couldn’t claim any
immunity.”
The court lamenting on the present state of affairs observed: “The citizens of the
independent nation who are governed by its own people and Constitution and not by the
Crown are still faced, even after fifty years of independence, when they approach the
court of law for redress against negligence of officers of the State in private law, with the
question whether the East India Company would have been liable and, if so, to what
extent for tortious acts of its servants committed in course of its employment. Necessity
to enact a law in keeping with the dignity of the country and to remove the uncertainty
and dispel the misgivings, therefore, cannot be doubted.”
The court also made it clear that the ratio of Kasturi Lal is available to those rare and
limited cases where the statutory authority acts as a delegate of such function for which it
cannot be sued in court of law.]
In A.H. Khodwa v State of Maharashtra, 1996 ACJ 505 (SC), the doctor of a Government
hospital, while performing sterilization operation of a lady patient, left a mop (towel)
inside her abdomen. The patient developed peritonitis resulting in her death. The
Supreme Court held that running a hospital was a “non-sovereign” function and the State
was vicariously liable for the same.
In State of Assam v Md. Nizamuddin Ahmed (AIR 1999 Gauh 62), the plaintiff was
carrying on business in sale of seeds of various agricultural products without a licence.
The police seized the seeds from the plaintiff’s shop. Due to negligence and lack of
storage facilities, the seeds got damaged in the police custody. The plaintiff claimed
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Vicarious Liability including State Liability
compensation from the State. Held that the seizure of the seeds was in the exercise of
“sovereign” power. Thus, the plaintiff was not entitled to claim any damages for the
same.
In State of Gujarat v Govindbhai (AIR 1999 Guj 316), the Gujarat High Court held that
the doctrine of sovereign immunity is subject to fundamental right to life and personal
liberty contained in Art. 21 of the Constitution. In this case, the plaintiff was wrongfully
seriously wounded by a gunshot fired by police constable. The said injury resulted in the
amputation of the plaintiff’s right leg. That was held to be violation of fundamental right
to life of the victim. The State Government was held to be vicariously liable.
In State of A.P v Challa Ramakrishna Reddy (AIR 2000 SC 2083), a prisoner in jail as
under-trial died as a bomb was thrown by some miscreants in the cell where he was
lodged. It was found that the jail authorities were negligent in properly guarding the jail
inspite of warning that some miscreants were likely to make an attempt on the life of the
prisoner. On these facts the doctrine of sovereign immunity was held to have no
application as this was a case of a violation of the fundamental right to life under Art. 21
of the Constitution.
In Krishan Kaushik v Union of India (AIR 2005 Del 276), it was held that a misfeasance
by postal employee is vicarious liability of the Post Office.
In P. Gangadharan Pillai v State of Kerala (AIR 1996 Ker 71), the petitioner’s hotel was
ransacked in a mob attack. The police authorities had sufficient warning of the likelihood
of riots and consequent loss and damage by rioters, as in the present case. The State was
held liable for having failed to render protection to the petitioner’s hotel, because this
resulted in the infringement of the petitioner’s right to carry on business and trade, as
contained in Art. 19(1)(g) of the Constitution. The State was directed to pay
compensation to the petitioner.
Leading Case: HEADMISTRESS, GOVT. GIRLS HIGH SCHOOL v
MAHALAXMI (AIR 1998 Mad. 86)
In this case, the plaintiff, a minor girl, was a 9th standard student in a Government
managed school. One day in the school, she and another student were ordered by the Aya
to fetch water from a boring pipe situated 1½ furlongs away.
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Law of Torts
They were given a plastic pot and asked to take the cycle of an employee of the school.
They went to fetch water. The water-filled pot was kept by them in the cycle carrier. In
order to facilitate the placing of the pot correctly and to hold it tightly, plaintiff pulled the
upper holding portion of the cycle- carrier spring, but it came out forcibly and the spring
struck the right eye of the plaintiff (the cycle-carrier spring was negligently kept in a poor
and ill-maintained condition). The plaintiff lost her vision in the right eye completely.
A suit was filed by the plaintiff’s father for recovery of compensation for the injury
caused to the plaintiff. It is said that since the injury was caused at the instance of the Aya
with the implied consent of the school authorities, the State of Tamil Nadu should be
made liable vicariously.
The High Court, while upholding the plaintiff’s claim, observed: The school is bound to
provide water to the school children, and one of the duties of the Aya is to bring water to
the school children. But she authorises some other person to do that, in fact, the practice
of sending the school children to fetch water has been in vogue for a long time. That
means, the school children were really employed, when staff are engaged for that
purpose. In such a situation, if an injury is caused to one of the children in the course of
such employment, it can only be said that the school authorities are also liable for the
same.
It was for the purpose of the school, water was being brought by the plaintiff, and
naturally, the State is also vicariously liable for the injury sustained by the plaintiff. The
State cannot disown its liability for the negligent acts of its servants. Therefore, the
plaintiff would be entitled to be compensated fully (Rs. 58,000 awarded to her).
Leading Case: CHAIRMAN, RAILWAY BOARD v CHANDRIMA DAS
(AIR 2000 SC 988)
In this case, a Bangladeshi woman was gang raped by railway employees in Yatri Niwas,
a railway building, at the Howarh Railway Station. The Supreme Court held that the right
to life contained in Art. 21 is available not only to a citizen of the
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Vicarious Liability including State Liability
country, but also to every person who may not be a citizen of the country and a tourist
coming to the country. The Central Government was held liable to pay damages to the
person wronged by the Railway employees.
It was contended by the appellants that the liability under the law of torts would arise
only when the act complained of was performed in the course of official duty and since
‘rape’ cannot be said to be an official act, the Central government would not be liable
vicariously.
The court rejecting this contention observed: “The theory of sovereign power which was
propounded in Kasturi Lal case has yielded to new theories and is no longer available in a
welfare State. The functions of the State not only relate to the defence of the country or
the administration of justice, but they extend to many other spheres as, for example,
education, commercial, social, economic, political and even marital. These activities
cannot be said to be related to sovereign power.”
It held: Running of the railways is a commercial activity. Establishing the Yatri Niwas at
various railway stations to provide lodging and boarding facilities to passengers on
payment of charges is a part of the commercial activity of the Union of India and this
activity cannot be equated with the exercise of sovereign power. The employees of the
Union of India who are deputed to run the Railways and to manage the establishment,
including the railway stations and the Yatri Niwas, are essential components of the
government machinery which carries on the commercial activity. If any of such
employees commits an act of tort, the Union Government, of which they are the
employees, can be held vicariously liable in damages to the person wronged by these
employees. The employees utilized their official position and got a room in the Yatri
Niwas booked in their own name where the act complained of was committed.]
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Law Commission of India, First Report (Liability of State in Tort), 1956
The Law Commission in its First Report recommended legislation prescribing State
Liability, as in England. It noted that it is necessary that the law should, as far as possible,
be made certain and definite instead of leaving it to courts to develop the law according
to the view of the judges. On the basis of that Report, a Bill entitled ‘The Government
(Liability in Tort) Bill, 1967’ was introduced in the Parliament, but it failed to become a
law.
The Law Commission said that in the context of a welfare State it is necessary to
establish a just relation between the rights of the individual and the responsibilities of the
State. While the responsibilities of the State have increased, the increase in its activities
has led to a greater impact on the citizen. Public utilities are taken over by the State. The
State has established and intends to establish big factories and manage them. The State
carries on works departmentally. The doctrine of laissez faire - which leaves every one to
look after himself to his best advantage has yielded place to the ideal of a ‘welfare State’
- which implies that the State takes care of those who are unable to help themselves.
The Commission said that the Government should place itself into the same position as a
private employer, as nowadays it employs labour on a large scale (via public
corporations). Thus, it should be subject to the same rights and duties as are imposed by
statute. The old distinction between sovereign and non-sovereign functions should no
longer be invoked to determine the liability of the State. As Professor Friedman observes:
“It is now increasingly necessary to abandon the lingering fiction of a legally indivisible
State, and of a feudal conception of the Crown, and to substitute for it the principle of
legal liability where the State, either directly or through incorporated public authorities,
engages in activities of a commercial, industrial or managerial character. The proper test
is not an impracticable distinction between governmental and nongovernmental
functions, but the nature and form of the activity in question.”
The Law Commission laid down certain principles in respect of ‘legislation prescribing
State Liability.’ It noted that under the ‘general law
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Vicarious Liability including State Liability
of torts’ (i.e. the English Common Law as imported into India with statutory
modifications of that law now in force in India), the State as employer should be liable
for the torts committed by its employees and agents while acting within the scope of their
office or employment. The State should be liable for torts committed by an independent
contractor only in certain cases. The State should also be liable for torts where a
corporation owned or controlled by the State would be liable. The State should be subject
to the general law liability for injury caused by dangerous things (chattels). The State
should be entitled to raise the same defences which a citizen would be entitled to raise
under general law.
The Law Commission also recommended four exceptions to the rule of State liability (i.e.
the following defences should be made available to the State for any act, neglect or
default of its servants or agents)(i)
Act of State - It means an act of the sovereign power directed against another
sovereign power or the subject of another sovereign power not owing temporary
allegiance, in pursuance of sovereign rights.
(ii)
Judicial acts - It means acts done by judicial officers and persons executing
warrants and orders of judicial officers.
(iii)
Acts done in the exercise of political functions of State e.g. foreign affairs;
diplomatic, consular and trade representation; war and peace; acts in emergency; etc.
(iv)
Acts done in relation to defence forces - Combatant activities of the Armed
Forces during the time of war; acts done in the exercise of the powers vested in the Union
for purpose of training or maintaining the efficiency of the Defence Forces.
FURTHER QUESTIONS
Q.1. (a) Discuss the liability of the Government of India for the wrong of the employees
with reference to the statement, “He who does an act through another is deemed in law to
do it himself.” In what way is Indian law different from English law?
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Law of Torts
(b)
A military vehicle driven by a military driver was returning after collecting tents
from an outdoor training place. The tents were to be brought back to the regiment. At the
relevant time, the truck fatally knocked down a retired Subedar. The legal representatives
of the Subedar filed a suit to recover compensation against the Union of India. The Union
of India contests the claim. Examine with the help of judicial precedents and giving your
own opinion whether the Government will be liable.[C.L.C.-93; L.C.II-93]
Enunciate the law evolved by the Supreme Court on 'Vicarious Liability of the State' for
torts committed by its servants.
[D.U.-2008]
A.1.(a) For the law relating to vicarious liability of State and the differences between
Indian and English law - see the text of the present chapter.
(b)
Vicarious Liability of State
It emerges from the various decisions (barring recent ones) that the Government is not
liable for the torts committed by its servants in exercise of sovereign powers, but for the
torts committed in the exercise of non-sovereign powers. Sovereign powers mean powers
which can be lawfully exercised only by a sovereign or by a person to whom such powers
have been delegated.
There are no well defined tests to know what are sovereign powers. Functions like
maintenance of defence forces, maintenance of law and order and proper administration
of the country, and the machinery for the administration of justice can be included in
sovereign functions. Functions relating to trade, business and commerce and welfare
activities (viz. running of hospital) are amongst the ‘non-sovereign’ functions. Broadly
speaking such functions, in which private individuals can be engaged in, are not
sovereign functions. Routine activities, such as maintenance of vehicles of officers of the
government, also fall within the sphere of ‘non-sovereign’ functions.
The following are the instances of “sovereign” functions:
(i)
Maintenance of defence force e.g. construction of a military road, distribution of
meals to the army personnel on duty, checking army personnel on duty.
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In Baxi Amrik Singh v Union of India (1973) 75 P.L.R. 1, held that the checking of army
personnel on duty was a function intimately connected with the army discipline and it
could only be performed by a member of the Armed Forces and that too by such a
member who is detailed on such duty and is empowered to discharge that function.
(ii)
Maintenance of law and order e.g. if the plaintiff is injured while police personnel
are dispersing unlawful crowd (State of Orissa v Padmalochan AIR 1975 Ori. 41), or
plaintiffs loudspeaker set is damaged when the police makes a lathi charge to quell a riot
(State of M.P. v Chironji Lal AIR 1981 M.P. 85).
The following are the instances of “non-sovereign” functions:
(i)
Maintenance of dockyard (P. & O. Steam Navigation Co. case).
(ii)
A truck belonging to the public works department carrying material for the
construction of a road bridge (Rup Ram v The Punjab State, AIR 1961 Punj. 336);
Famine relief work (Shyam Sunder v State of Rajasthan AIR 1964 SC 890).
(iii)
A Government jeep car being taken from the workshop to the Collector’s
bungalow for the Collector’s use (State of Rajasthan v Vidyawati AIR 1962 SC 933).
(iv)
Taking ailing children to Primary Health Centre in a Government carrier (.Indian
Insurance Co. Assn. Pool v Radhabai AIR 1978 M.P. 164).
(v)
Carrying military jawans from Railway Station to the Unit Headquarters (Union
of India v Savita Sharma AIR 1979 J. & K. 6). Similarly, carrying ration and sepoys
within the country during peace time in the course of movement of troops after the
hostilities were over [Pushpa Thakur v UOI (1984) ACJ 559],
(vi)
Carrying Air Force officers from one place to another in Delhi for playing hockey
and basket ball (Satya Wati Devi v UOI AIR 1967 Del. 98), or bringing back military
officers from the place of exercise to the college of combat (Nandram Heeralal v UOI
AIR 1978 M.P. 209).
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Law of Torts
(vii) Taking a truck for imparting training to new M.T. Recruits (Iqbal Kaur v Chief of
Army Staff AIR 1978 All. 417).
(viii) Transporting of a machine and other equipment to a military training school
(Union of India v Sugrabai AIR 1969 Bom 13).
(ix)
Where some military jawans found some firewood lying by river side and carried
the same away for purposes of camp fire and fuel (Roop Lal v UOI AIR 1972 J. & K.
22).
(x)
A ‘service’ (facility) provided to a ‘consumer’ within the meaning of the
Consumer Protection Act, 1986 is not a ‘sovereign’ function (Lucknow Development
Authority v M.K. Gupta AIR 1994 SC 787).
Decision of the case in question
Collecting tents from an outdoor training place is a non-sovereign function which can be
performed by a private individual without any delegation of powers. Therefore, the Union
of India is liable. Moreover, the scope of the very defence of sovereign immunity has
been curtailed by the judiciary today.
Q.2. X was a driver of the Collector of Rajasthan. The jeep was sent for repairs to
workshop. After the repairs, he was bringing the jeep back from workshop. He drove it
negligently and knocked down Y, a pedestrian on the road. The widow of Y files an
action for damages against the State of Rajasthan. Decide.
A.2. The State will be liable, as X was performing a non-sovereign function (State of
Rajasthan v Vidyawati case).
Q.3. A DTC bus on 11.12.1993 at about 8.30 A.M. was proceeding towards Jangpura
side from I.P. Depot. When the said bus arrived at Mathura Road, New Delhi, a private
truck all of a sudden emerged from inside the exhibition ground and violently struck the
bus as a result of which the rear portion of the bus was pushed towards the right side of
the road and in the process struck against a scooter coming by. The scooter driver got
killed on the spot as a result of the collision. Shanti Devi, wife of the deceased, filed a
suit claiming compensation. The suit was resisted by the private truck owner pleading it
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Vicarious Liability including State Liability
was engaged by the B.S.F. and at the relevant time was engaged in distributing food to
the Jawans posted in exhibition ground. Decide, giving reasons. [C.LC.-95]
A.3. The defence of sovereign immunity is available only to the State, the individual
wrongdoer is always liable for the torts committed by him. The private truck owner
would be thus liable in any case. Furthermore, the scope of the very defence of sovereign
immunity has been curtailed by the judiciary today.
Distributing food to Jawans at an exhibition ground is a non-sovereign function which
can be performed by a private individual without any delegation of powers. However, in
Union of India v Harbans Singh (AIR 1959 Punj. 309) the truck which caused the
accident was carrying meals for being distributed to military personnel on duty and the
court held that the act was being done in exercise of sovereign powers. But in that case
the truck carrying the meals belonged to the military department and was being driven by
a military driver. While in the present case, a private truck owner was performing the job.
The mere fact that a tort is committed by a member of the defence forces does not make
the activity a sovereign one. In Pushpa Thakur v UOI (1984) ACJ 559, where the truck
involved in accident was engaged in carrying ration and sepoys within the country during
peace time in the course of movement of troops after the hostilities were over, held that
this is a “routine duty” not directly connected with carrying on of war, the traditional
sovereign function. The truck was part of the First Armoured Division. During the IndoPak war, 1971, the Division had moved to Ferozepur. After the war, the Division was
ordered to move back to Jhansi and during that movement the accident occurred.
Q.4. Will the Government be vicariously liable in the following cases:(a)
In a cyclone-hit area, the army called out to assist the civil authorities. During
such operation, the driver of a Army vehicle carrying equipment of great strategic value
to a defence research centre, negligently knocked down X, a pedestrian, who died
instantaneously.
[C.LC.-96]
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(b)
Z, a driver of the Post and Telegraph Department was driving a postal van
carrying mail to Gole Dakkhana . Z negligently crushed Y, a young man, under the
vehicle. [C.L.C.-96]
(c)
Z, a military truck driver, was transporting a 'Record Sound Ranging Machine’
(used for locating enemy guns) from the army workshop at Bombay to the Military
Artillery School at Nasik. On his way, he (Z) injured a pedestrian, X, by his negligent
driving.
[L.C.I.-95]
(d)
A truck which was not roadworthy was put on the road on account of negligence
of the driver, an employee of the State of Gujarat. At a consequence of this, the truck
caught fire, which lead to the death of X, another employee of the State. At the time of
the accident the truck was employed in famine relief operations. [L.C.II-94]
A.4. In Nagendra Rao v State of A. P. (1994) 6 SCC 205, held that the State cannot claim
any immunity except while performing these functions, viz., administration of justice,
maintenance of law and order, defence of the country and repression of crime.
(a)
The State will be liable as the truck was employed in a non-sovereign function.
(b)
The State will be liable, as Z was not performing a sovereign function.
(c)
The State will be liable, as Z was not performing a sovereign function. This is a
“routine duty” not directly connected with carrying on of war (Pushpa Thakur v UOI and
UOI v Sugrabai).
(d)
The State will be liable, as the truck was employed in famine relief operation - a
non-sovereign function (Shyam Sunder v State of Rajasthan).
Q.5. Discuss whether the State is vicariously liable for a tort committed by a government
servant in the following cases:
(a)
An air force vehicle carrying some air force personnel, constituting football team,
to the stadium injures a pedestrian due to the negligence of the driver.
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Vicarious Liability including State Liability
(b)
An Inspector of Police along with his team, while tracking down some dreaded
gangsters, followed a car on receiving information that two persons identical to and
resembling the gangsters are travelling in it; after giving several signals to the occupants
of the car to stop, fired a number of gunshots killing the occupants of the car who were
found to be innocent citizens.
(c)
The plaintiffs loudspeaker set is damaged when the police makes a lathi charge to
quell a riot.
[C.L.C.-97/98; L.C.II-97]
A.5.(a) The State will be liable, as it is a ‘non-sovereign’ function.
(b)
The State will be liable; the defence of sovereign immunity (as laid down in
Kasturi Lal case) is not available to the State when its officers are guilty of interfering
with life and liberty of a citizen not warranted by law.
(c)
The State will not be liable as the maintenance of law and order is a ‘sovereign’
function.
Q.6. P, a police constable, searched the person of A, on his arrest, and seized a sum of Rs.
5,000 believing the money to be stolen property. Can A sue the Government for recovery
of the amount?
[C.L.C.-94]
A.6. Torts Committed in Exercise of Statutory Duties
In India, tort committed while performing duty in discharge of obligations imposed by
law has been considered to be a defence. However, for that it is necessary that the
tortuous act committed by the servant was in discharge of sovereign functions.
In Ram Ghulam v State of U.P. (AIR 1950 All. 206), the police authorities recovered
some stolen property and deposited the same in the Malkhana. The property was again
stolen from the Malkhana. The Government of U.P. was held not liable for the same to
the owner of the property as the government servants were performing obligations
imposed by law. Similar was the decision in Mohd. Murad v Govt. of U.P. (AIR 1956
All. 75).
In Kasturi Lal Ralia Ram Jain v State of U.P. (AIR 1965 SC 1039), also, the Supreme
Court refused to hold the State liable for the act done by its servants in the exercise of
statutory duties. In this case,
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a partner of the firm of jewellers happened to go to Meerut reaching there in the
midnight. He was carrying a lot of gold and silver with him. The police constables
suspected that he was in the possession of stolen property. He was taken to the police
station. He, with his belongings, was kept in the police custody. Next day he was released
on bail and thereafter the silver was returned to him. The gold was kept in the police
Malkhana, and the same was misappropriated by the Head Constable. The plaintiff
brought an action against the State of U.P. Held that since the negligence of the police
officers was in exercise of statutory powers which can also be characterized as sovereign
powers, the State will not be liable for the same. The power to arrest a person, to search
him, and to seize property found with him, are powers conferred on the specified officers
by statute. The power of the police officials in keeping the property in the police
Malkhana was a sovereign power.
In State of U.P. v Hindustan Lever Ltd. (AIR 1972 All. 486), the act of the Government
servants was in exercise of statutory powers but the powers in that case were not
sovereign powers and therefore the State was held liable. There, a public limited
company instructed their bankers to deposit a sum of Rs. 50,000 (an excise duty) on their
behalf in the Govt. sub-treasury. The Bank, after making the necessary deposit, informed
the plaintiff about the payment. Later, the plaintiff came to know that the said deposit
hadn’t been actually credited to the plaintiff’s account at the sub-treasury because the
accountant and the treasurer had embezzled the said amount. The accountant who
received this deposit was acting in exercise of statutory powers as he was authorized to
receive money by the rules contained in Treasury Manual. But it was not in the exercise
of sovereign powers. Maintaining a treasury was considered to be an ordinary banking
business which could have been carried on by a private individual.
Kasturilal’s case was applied again in State of U.P. v Tulsi Ram (AIR 1971 All. 162) in
which the State was exempted from liability. But, in recent times, there has been a
significant change in the judicial trend, in so far as the courts have bypassed Kasturilal
and have awarded compensation under the circumstances when the State would’ve been
exempt from liability if Kasturilal had been followed.
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Vicarious Liability including State Liability
Recent Trends
(i)
In State of Gujarat v Memon Mahomed (AIR 1967 SC 1885), and, Smt. Basava v
State of Mysore (AIR 1977 SC 1749), it was held that after seizure the position of the
Government was that of bailee. The Government, therefore, had a duty to pay
compensation.
(ii)
In People’s Union for Democratic Rights v Police Commr., Delhi (1990) 1 SCC
422, the State was ordered to pay compensation to innocent victims of police firing. The
police fired without any warning on a group of poor peasants who had collected for a
peaceful meeting.
(iii)
In Sebastian M. Hongray v UOI (AIR 1984 SC 1026), exemplary damages were
awarded for disappearance of two persons in military custody.
(iv)
In Bhim Singh v State of J. & K. (AIR 1986 SC 494), and, Rudal Shah v State of
Bihar (AIR 1983 SC 1086), the State was held liable for wrongful detention and
monetary compensation was awarded.
(v)
In N. Nagendra Rao & Co. v State of A.P. (1994) 6 SCC 205, held that when due
to the negligent act of the officers of State a citizen suffers any damage the State will be
liable to pay compensation. In this case, appellant’s huge stocks of food grains and
fertilizers were seized. He was later found not guilty of black-marketing or adulteration.
When he went to take the delivery of the stock he found that the stock has been spoilt
both in quality and quantity.
The court said that sovereign immunity was never available where the State was involved
in commercial or private function nor it is available where its officers are guilty of
interfering with life and liberty of a citizen not warranted by law.
Decision of the case in question
In view of the recent judgments, A can successfully sue the government for recovery of
money.
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Law of Torts
Q.7. P’s ornaments and valuables were stolen from his house. On a report lodged with the
police by P, the things were recovered by the police from A, who was prosecuted for
having committed theft. Pending decision of the prosecution, the ornaments and
valuables were deposited in the police Malkhana from where they were stolen by
someone due to the negligence of the officer-in-charge. P sues State. How will you
decide?
[L.C.I-93]
A.7. The State will be liable and P can recover compensation from it.
Q.8. Will the State be vicariously liable in the following situations: Two persons died in
police custody because of beating and torture by police officials? [D.U.-2009]
Amit, a nine year old boy was suspected to have stolen a mobile phone. He was taken to
the police station. He died there as a result of beating and assault by the policeman on
duty. His mother claims compensation for his death from the State government. Decide
giving reasons.
[D.U.-2011]
A.8. In both situations, the State will be liable [See Sebastian M. Hongray v UOI, Bhim
Singh v State of J. & K., and, Rudal Shah v State of Bihar Cases (discussed above)].
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8
Defamation
Every man has a ‘right to reputation’. Defamation is a tort which injures reputation
(without justification or lawful excuse) by exposing a person to hatred, contempt or
ridicule, and is therefore actionable. If a person injures the reputation of another he does
so at his own risk as in the case of an interference with the property. As stated in Dixon v
Holden (1869) 7 Eq. 488, “A man’s reputation is his property, and if, possible, more
valuable, than other property.” The simple thing is: if reputation is lost, everything is lost.
A man loses face in society, he cannot go out; he feels humiliated and becomes the
subject or object of social ridicule.
‘‘The law recognizes in every man a right to have the estimation in which he stands in the
opinion of others unaffected by false statements to his discredit” [Scott v Sampson (1882)
8 QBD 491]. Winfield has defined defamation as “publication of statement which tends
to lower a person in the estimation of right thinking members of society generally or
which makes them shun or avoid that person”.
It is not only the injury which a man may himself suffer, it includes any injury to the
reputation of his wife, his children or dependants if the injury suffered by them has a
direct bearing on the reputation of the man who alleges to have suffered an injury.
It is important to note that defamation is both a civil and a criminal wrong. A person can
institute criminal proceedings against the writer or the publisher or he can sue him in a
civil action for damages in tort for the injury he has suffered. The law of defamation like
many
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Law of Torts
other branch of the law of torts provides for balancing of interests (i.e. reputation v
freedom of speech). The wrong of defamation protects reputation, and, defences to the
wrong, viz. truth and privilege protects the freedom of speech. Defamation is a
reasonable restriction on the fundamental right of freedom of speech and expression [Art.
19(l)(a), Constitution of India] and is saved by Article 19(2) of the Constitution.
Libel and Slander1
English law divides actions for defamation into libel and slander. Defamation is a generic
term covering both libel and slander. A libel is a publication of a false and defamatory
statement, in some permanent form, tending to injure the reputation of another person,
without lawful justification or excuse. A slander is a false and defamatory verbal or oral
statement in some transitory form, tending to injure the reputation of another person,
without lawful justification or excuse. By reputation is meant the opinion of the world in
general.
The distinction between libel and slander is as follows-2
(i)
Libel is a representation made in some permanent form e.g. writing, printing,
picture, caricature, effigy or statue. Any thing which has a permanent and visible
character is known as libel. In a cinema film not only the photographic part is considered
to be a libel but also the speech which synchronises with it is also a libel, because it is in
permanent form. Similarly, matter recorded on a gramophone disc is a libel though it is
addressed to the ear and not to the eye.
Slander is the publication of defamatory statement in a transient form e.g. spoken words
or gestures. Slander is like rumours and gossips addressed to the ears of the listeners
(libel is addressed to the eye). Defamation through a parrot would thus be slander.
Defamation by radio and television is a matter of judicial conflict of opinion. In some
cases, it has been held to be libel and in some others, slander, and in others to be libel if
the broadcaster reads from
___________________
1.
Write a short note on libel and slander. [C. L C.-96/99/2002/2004]
2.
Distinguish between Libel and Slander
[I. A. S.-99]
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Defamation
the script, but slander if he does not. One American Court has even coined the word
“defamacast” to avoid calling it by either name.
(ii)
While libel is both a civil and criminal wrong and offence, slander is merely a
civil wrong, except in certain cases where the spoken words are blasphemous, seditious,
obscene, or if they amount to a solicitation to commit a crime or a contempt of the court.
(iii)
Further , libel is actionable per se as it is of itself an infringement of right while
slander is actionable only on proof of special damage, save in exceptional cases e.g. when
the slander contains imputation of a criminal offence punishable with imprisonment,
chastity or adultery to a woman , dishonesty in any office, etc.
(iv)
A slander may be uttered in the heat of moment, and under a sudden provocation;
the reduction of the charge into writing and its subsequent publication in a permanent i.e.
libel form shows greater deliberation and raise a suggestion of malice. However, the
actual publisher of a libel may be an innocent person, and therefore, not liable; whereas
in every case of publication of a slander, the publisher acts consciously and voluntarily,
and must necessarily be guilty.
(v)
A libel conduces to a breach of the peace; a slander does not. This distinction
which is recognised in the English law is severely critcised by the framers of the Indian
Penal Code.
(vi)
Mere loss of reputation is sufficient to constitute an action for libel. Mere loss of
reputation is not sufficient to constitute an action for slander, there must be loss of some
material advantage - some loss which is pecuniary, or at any rate capable of being
estimated in money.
(vii) Under the English statute of limitation an action of libel is barred after 6 years,
but of slander after two. In India, the period of limitation is one year for both.
The above stated distinctions do not find any place in India. Under Indian criminal law,
libel and slander are treated alike, both of them are considered to be an offence. There is
no crime of slander in the English
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Law of Torts
law. In India, however, slander is both a tort and a crime. Moreover, weight of various
decisions in India is to make slander like libel actionable per se [H.C.D. Silva v E.M.
Potenger, ILR (1946) Cal 157].
In the following five cases, however, slander is actionable per se
i.e. special damage to the plaintiff need not be proved:
(1)
Accusation of criminal offence
Slander is actionable per se, if the words charge the plaintiff with the commission of a
criminal offence punishable corporally and not by fine only e.g. murder, robbery, theft,
arson, etc. Thus, if X falsely says that Z was convicted of breach of a parking rule under
the Motor Vehicles Act, it is no defamation, but not so, if the charge is one of rape.
(2)
Accusation of virulent disease
Slander is likewise actionable per se if the words contain an imputation of a contagious
disease of a particular kind. Venereal disease and leprosy come within the rule; smallpox, however, does not. The imputation must be that the plaintiff was suffering from the
disease at the time the words were spoken, and not at some time in the past.
(3)
Imputation against office, profession or trade
Slander is actionable per se where the words are spoken of the plaintiff in relation to his
office, profession or trade e.g. to accuse a barrister or medical man of incapacity or of
infamous practices in the discharge of his professional duties. However, where a
physician was accused of adultery, but the accusation was not connected with anything
done by him in his professional capacity, it was held not be actionable per se [Ayer v
Craven (1834) 2 A. & E. 2].
(4)
Unchastity in woman or girl
By virtue of the Slander of Woman Act, 1891, words imputing unchastity or adultery to
any woman or girl are actionable per se in England. Thus, even to call a woman a
‘lesbian’ amounts to defamation [Kerr v Kennedy (1642) 1 K.B. 409].
The Calcutta High Court has held that words imputing unchastity to a woman are not
actionable in the absence of proof of special damage. The Madras High Court has,
however, held that such a suit is
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Defamation
maintainable without proof of special damage. The Bombay High Court has held that the
words imputing adultery to a Parsi married woman are actionable without proof of
special damage, as adultery is an offence under the Penal Code [Hirabai v Dinshaw
(1962) 28 Bom. L.R. 1334].
(5)
Aspersion on caste
The trend of modern Indian decisions is that to say of a high caste woman that she
belongs to a lower caste is defamatory, not only of her, but also of her husband, he having
married to a woman of a lower caste. Such an allegation is actionable without proof of
special damage [Gaya v Mahabir (1926) 1 Luck. 386)].
Essentials of Defamation3 (Libel)
(1)
The words must be false and defamatory;
(2)
The said words must refer to the plaintiff; and
(3)
The words must be published.
(1)
The Words Must be Defamatory and False
Defamatory statement is one, which tends to injure the reputation or character of the
plaintiff. A statement will be defamatory if it (i) exposes the plaintiff to hatred, contempt,
ridicule or obloquy, or (ii) tends to injure him in his profession or trade, or (iii) causes
him to be shunned or avoided by his neighbours or by members of the society, or, a
substantial and respectable proportion of society would think less of him.
Defamation is thus an invasion of one’s reputation and good name. Defamation is that
which tends to injure one’s “reputation” in the popular sense, to diminish the esteem,
respect, goodwill or confidence in which a person is held, or to excite adverse, derogatory
or unpleasant feelings or opinions against him.
Whether a statement is defamatory or not depends upon how the right thinking members
of the society are likely to take it. The standard
___________________
3. What are the essential elements of the tort of defamation? Discuss with the
help of decided cases. [D.U.-2008/2011] [C.L.C.-94]
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Law of Torts
to be applied is that of a right-minded citizen, a man of fair average intelligence. In
applying this test the statement complained of has to be read as a whole and the words
used in it are to be given their natural and ordinary meaning which may be ascribed to
them by ordinary man.
The meaning of words in a libel action “is a matter of impression as an ordinary man gets
on the first reading not on a later analysis” (the question is not of construction in the legal
sense). When the statement causes any one to be regarded with feelings of hatred,
contempt, ridicule, fear, dislike or disesteem, it is defamatory. Mere hasty expression
spoken in anger, or vulgar abuse to which no hearer would attribute any set purpose to
injure character would not be actionable.
No action for damages can lie for mere insult. If, however, the insulting words are also
likely to cause ridicule and humiliation they are actionable (Mst. Ramdhara v Mst.
Phulwatibai 1961 M.P.L.J. 483). Further, to say that a product does not answer its
purpose is not defamatory but to say that a baker’s bread is always unwholesome is
defamatory. ‘Humour’ can also be made an instrument of defamation except when it is
good-natured fun. But when it carries a sting and causes adverse, rather than sympathetic,
merriment, it may become defamatory.
The defamatory statement must be false. No civil action lies for the publication of a
defamatory statement which is true. In an action for defamation, the falsity of the charge
is presumed in the plaintiff’s favour. The burden of proof that the words are false does
not lie upon the plaintiff. Truth is an absolute defence to an action for defamation.
In South India Railway Co. v Ramakrishna I.L.R. (1890) 13 Mad. 34, the railway guard,
while checking the tickets and calling upon the plaintiff to produce his ticket said to him
in the presence of the other passengers, “I suspect you are travelling with a wrong (or
false) ticket.” The plaintiff produced the ticket, which was in order. Held that the words
spoken by the guard were spoken bona fide and under the circumstances of the case there
was no defamation.
In Sim v Stretch (1936) 2 All ER 1237 (HL), the plaintiff’s housemaid left service and
joined the defendant. In a telegram by the defendant, it was written “Edith has resumed
her service with us today. Please send her possessions and the money borrowed, also her
wages.” The plaintiff claimed damages, alleging that these words were defamatory in
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Defamation
as much as they implied that the plaintiff was in such financial difficulties that he had
gone to the extent of borrowing money from his servant. It was held that the words were
not reasonably capable of any defamatory meaning.
In S.N.M. Abdi v Prafulla K. Mohanta (AIR 2002 Gauh 75), it was held that it was not
necessary that the defamatory statement show a tendency of imputation to prejudice the
plaintiff in the eyes of everyone in the community or all of his associates. It is suffice to
establish that the published material tends to lower him in the eyes of substantial,
respectable group, even though they are minority of the total community or of the
plaintiff’s associates. In the present case, an article published in the Illustrated Weekly of
India (dated 8-9-1990) made certain allegations of misuse of man and muscle power by
the deposed Chief Minister of Assam, Prafulla K. Mohanta. The article was held to be
defamatory in nature and the plaintiff was awarded damages amounting to Rs. 5,00,000/-.
The Innuendo4
Sometimes the statement may prima facie be innocent (i.e. natural and ordinary meaning
is not defamatory) but because of some latent or secondary meaning i.e. innuendo it may
be considered to be defamatory. Such statements are often couched in subtle language.
Words which are not defamatory in the ordinary sense may convey a defamatory
meaning owing to the particular circumstances in which they are spoken. Even a
statement of commendation may be defamatory in the context in which it is said. To say
that ‘X’ is an honest man and he never stole my watch’ may be a defamatory statement if
the persons to whom the statement is made understand from this that ‘X’ is a dishonest
man having stolen the watch. The statement that a lady has given birth to a child is
defamatory when the lady is unmarried.
In Capital and Counties Bank v Henty & Sons (1882) 7 A.C. 741, there was a dispute
between Henty & Sons and one of the branch managers of the plaintiff Bank. The
defendants who used to receive cheques drawn on various branches of the Bank sent a
circular to large number of their customers stating that they would not receive payment
___________________
4.
Write a short note on Innuendo.
[I.A.S.-2009] [C.L.C.-93/95]
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Law of Torts
in cheques drawn on any of the branches of the plaintiff Bank. The Bank sued Henty &
Sons for libel alleging that the circular implied an insolvency of the Bank. Held, the
words of the circular taken in their natural sense did not convey the supposed imputation
and the reasonable people would not understand it in the sense of the innuendo suggested.
There was, therefore, no libel.
When the innuendo is proved the words which are not defamatory in the ordinary sense
may become defamatory. In Tolley v J. S. Fry & Sons, Ltd. (1931) A.C. 333, the
defendants issued an advertisement in which a famous amateur golf champion was shown
(without his consent) as a caricature, playing golf with a packet of chocolate protruding
from his pocket and a comic caddy saying that the chocolate was excellent as the
plaintiff’s drive. The plaintiff alleged that it meant he had done so for gain and reward
and that he had prostituted his reputation as an amateur golf player for advertising
purposes and that he was guilty of conduct unworthy of his status as an amateur golf
player. Held, the innuendo that the plaintiff has prostituted his status for advertising was
supported by the facts and the advertisement was, therefore, defamatory for a man in his
position.
In a case, X made a tom-tom in the following words: “Y’s goods are being sold by public
auction.” Y sued X on the ground that these words suggested an innuendo that Y was
insolvent. It was held that X was not liable, as there was no suggestion that the goods
were being sold because the owner of the goods did not pay his debts. In another case, the
defendant accused the female plaintiff of being a prostitute and called her a vagabond.
Thereupon, the plaintiff’s brother, who had promised to give her funds to migrate to
Australia, retracted his promise till the truth or falsity of the defendant’s charges was
established. The court held that special damage was shown, since the plaintiff could not
get the expected financial assistance (which she otherwise would have received), and she
was, therefore, entitled to succeed (Corrosan v Corcoran, 7 C.L. 272).
In another case, the defendant (who was a portrait painter) was employed by a person to
paint his portrait. Upon completion, the customer refused to accept and pay for the
portrait on the ground that the job was not done well. Thereupon, the defendant painted a
pair of asses’ ears on the portrait, and put it up for sale. The court held that there was
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Defamation
an actionable libel (In Re Francis Mezzora, 2. N.Y. City Hall Recorded, 113).
Knowledge or intention to defame is not necessary5 - Where the words are defamatory,
the question of intention or motive with which they are used is quite immaterial. Good
faith or ignorance of the defamatory nature of the statement is no defence, for a man
utters defamatory statements at his peril. Liability for libel does not depend on the
intention of the defamer, but on the fact of defamation. Proof of intention may, however,
be material on the question of damages. It was held that, assuming the words complained
of were capable of a meaning defamatory of the plaintiff, the fact that they were true of
another person did not afford a good defence to the defendants.
When the words are considered to be defamatory by the persons to whom the statement is
published there is defamation, even though the persons, making the statement believed it
to be innocent. In Cassidy v Daily Mirror Newspapers Ltd,6 (1929) 2 K.B. 331, Mr.
Cassidy did not live with his lawful wife (Mrs. Cassidy) but occasionally came and
stayed with her at her flat. The defendants published in their newspaper a photograph of
Mr. Cassidy and Miss ‘X’ with the following words underneath: “Mr. M. Cassidy, the
race house owner, and Miss ‘X’, whose engagement has been announced.” Mrs. Cassidy
sued the defendants for libel alleging that the innuendo was that Mr. Cassidy was not her
husband and he lived with her in immoral cohabitation. Some female acquaintances of
the plaintiff gave evidence that they had formed a bad opinion of her as a result of the
publication. Held that the innuendo was established. Obvious innocence of the defendants
was no defence.
The court observed: “It is immaterial whether the defendant knew, or did not know of
external facts which turn a presumptively innocent statement into a defamatory one. He
must take the risk of that and he is liable either way, provided the defamatory meaning
which is alleged could reasonably have been put upon the words.” Similarly, in Morrison
___________________
5.
“Absence of knowledge that a matter is defamatory or absence of intention to
injure the plaintiff is, by itself, no excuse for the defendant in tort." Discuss.
[I.A.S.-2003]
6.
A question based on the facts of Cassidy v Daily Mirror Newspapers Ltd. case.
[I.A.S.-97; C.L.C.-98]
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Law of Torts
v Richie & Co. (1902) 4 F 564 (Scotland), the defendants in good faith published a false
statement that the plaintiff had given birth to twins, while the plaintiff was married only
two months back. The defendants were held liable although they were ignorant of this
fact.
The rule, that it is no defence to an action for libel or slander to show the absence of any
intention to defame, is now modified in England by the Defamation Act, 1952. Section 4
of it lays down the procedure by which an innocent author or publisher can avoid his
liability. The defendant must prove: (i) that the words which had been published by him
were published innocently, and (ii) that as soon as he came to know that these words
published by him resulted in the defamation of the plaintiff, an offer of amends (a
suitable correction and an apology) was made.
In India, law is possibly the same. In T.V. Rama Subba Iyer v A.M.A. Mohideen (AIR
1972 Mad. 398), the Madras High Court (in tune with the Defamation Act, 1952) held
that in India there was no liability for the statements published innocently. However, in
D.P. Chowdhery v Km. Manjulata (AIR 1997 Raj 170) - a case where a local daily
published a news that a 17-year old girl had run away with a college boy (both belonging
to a distinguished family) and the court found that the news-item was untrue and was
published negligently with utter irresponsibility, the defendants were held liable. The
court held that the intention or motive with which the words were employed is as a rule,
immaterial. The words are actionable if false and defamatory, although published
accidentally or inadvertently. Every man must be presumed to know and to intend the
natural and ordinary consequences of his mind when he wrote or spoke the words.
(2)
The Words Must Refer to the Plaintiff
In every action of defamation, the plaintiff must prove that the statement refers to him.
The question is not who was meant, but rather who was hit. In other words, the question
is not what the defendant really intended in his heart, but what the words, taken with the
relevant circumstances and fairly construed, mean.
If the words published are taken to be referring to the plaintiff the defendant will be liable
and it will be no defence that the defendant did not intend to defame the plaintiff. In
Hulton & Co. v Jones (1910) A.C.
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20, the defendants, newspaper proprietors, published a fictional article in their newspaper
by which imputations were cast on the morals of a fictitious person - Artemus Jones. A
real person of the same name i.e. Artemus Jones, brought an action for libel. His friends,
who read that article, swore that they believed that the article referred to him. The
defendants were held liable.
In Youssoupoff v Metro Goldwyn Mayer Pictures Ltd. (1934) 50 T.L.R. 581, the
defendant produced and exhibited a film in which a woman of good character and social
position was represented as having been forcibly ravished by a man of a very bad
character. Circumstantial details in the picture pointed to the plaintiff as the wronged
woman, and several other acquaintances believed that the film referred to her. When the
plaintiff sued the defendants in damages for defamation, she succeeded without proof of
special damage.
In Garbett v Hayell (1943) 2 All E.R. 359, the defendants published in their magazine on
a left hand page a photograph of the plaintiff carrying on his business of an outdoor
photographer, in which he was depicted with his camera and showing pictures to two
women. On the opposite page was a photograph of a naked woman. Commencing under
the first photograph and ending under the second were words stating that for an extra
payment a customer could have a photograph like that of the naked woman. The plaintiff
brought an action for libel claiming that the juxtaposition of the photographs and the
letter-press thereunder implied that he dealt in indecent pictures. It was held that the
photographs and the lettering were arranged in such a manner as to be capable of a
defamatory meaning, and were in fact defamatory of the plaintiff.
Defamation of a class of persons - Defamation is an injury to a man’s reputation, which is
a right in rem. By its very nature, reputation for the purpose of the law of torts is that of
an individual and not a class of persons. In Eastwood v Homes (1858) 1 F&F 347, it was
held that when the words refer to a group of individuals or a class of persons, no member
of that group or class can sue unless he can prove that the words could reasonable be
considered to be referring to him. Thus, “If a man wrote that ail lawyers were thieves, no
particular lawyer could sue him unless there was something to point to the particular
individual.”
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In Knupffer v London Express Newspaper Ltd. (1944) A.C. 116, Lord Atkin stated:
“There can be no law that a defamatory statement made of a firm, or trustees, or the
tenants of a particular building is not actionable, if the words would reasonably be
understood as published of each member of the firm or each trustee or each tenant. The
reason why a libel published of a large or indeterminate number of persons described by
some general name generally fails to be actionable is the difficulty of establishing that the
plaintiff was, in fact, included in the defamatory statement.”
In an American case, a statement made in the presence of third persons that “one of you
has stolen the dress” was held not to be a slander of any of the three women to whom the
statement was addressed (Wright v Rosenbaum, 344, S.W. 2d 228). In Dhirendra Nath
Sen v Raj at Kanti Bhadra (AIR 1970 Cal 216), it has been held that when an editorial in
a newspaper is defamatory of a spiritual-head of a community, an individual of that
community does not have a right of action.
Defamation of corporation/partnership firm - A corporation, being a fictitious person,
cannot in the nature of things, be brought into hatred, ridicule or contempt by any manner
of falsehood. When a libel has been made against a corporation, it is, in fact, the
individuals composing it, - and not the corporation in its aggregate capacity, whose
reputation has been injured. A corporation, therefore, cannot sue for defamation affecting
personal reputation only. It is the individual members only who have a cause of action. A
corporation can sue if the defamation is of such a nature that its tendency is to cause
actual damage to the corporation in respect of its property and business.
It may be noted that no suit for defamation is maintainable by a partnership firm as it is
not a legal person. The individual partners may bring suit in such a case.
Defamation of the deceased - Defaming a deceased person is no tort. Under criminal law,
it may amount to defamation to impute anything to a deceased person, if the imputation
would harm the reputation of that person if living, and is intended to be hurtful to the
feelings of his family/other near relatives (Sec. 499, Explanation, I.P.C.).
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(3)
The Words Must be Published
It is publication, and not the mere speaking or writing of defamatory words, which is the
gist of the wrong of defamation (libel as well as slander). Publication means making the
defamatory matter known to some person other than the person defamed (via telegrams,
post cards, open pictures or films, etc.). Communication to the plaintiff himself is not
enough because defamation is injury to the reputation and reputation consists in the
estimation in which others hold him and not a man’s own opinion of himself. Thus, it
does not matter that it may injure his self-esteem.
Sending the defamatory letter to the plaintiff is no defamation. It is defamation only if
more than two persons are involved. In other words, there must be communication to at
least a third person (even a single individual). If a third person wrongfully reads a letter
meant for the plaintiff the defendant is not liable. It is no publication as it is unauthorized
[Huth v Huth (1915) K.B. 32], In this case, the letter in the unsealed envelope was taken
out and read by the inquisitive butler of the plaintiff. But if a defamatory letter sent to the
plaintiff is likely to be read by somebody else (e.g. clerk or spouse), in the ordinary
course of business, there is a publication [Theaker v Richardson (1962) 1 WLR 151].
It may be noted that publication need not be intentional. It may be negligent as well.
When the defamatory matter is contained in a postcard or a telegram, the defendant is
liable even without a proof that somebody else read it, because a telegram is read by the
post officials and there is a high probability of the postcard being read by some one.
In one case, the defendant sent a registered notice to the plaintiff at his home address.
This was written in the Urdu script and contained certain defamatory allegations against
him. The plaintiff, not being conversant with the Urdu script, asked another person to
read it out, which the latter did, in the presence of some other persons. The court held that
since it was neither pleaded nor proved that the defendant had written it, knowing the
plaintiff did not understand Urdu and would have to get it read by someone else, the
defendant was not liable (Mahender Ram v Harnandan Prasad AIR 1958 Pat. 445).
In the eyes of law, husband and wife are one person and the communication of a
defamatory matter concerning a third person from
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the husband to the wife or vice versa is no publication. In T. J. Ponnen v M.C. Verghese
(AIR 1970 SC 1876), the question was whether a letter from the husband to the wife
containing defamatory matter concerning the father-in-law (wife’s father) could be
proved in an action by the father-in-law against his son-in-law. His wife had passed on
those letters to her father (M.C. Verghese). The husband (Ponnen) contended that the
letters addressed by him to his wife are not, except with his consent, admissible in
evidence by virtue of Sec. 122, Evidence Act. Held that the husband is liable for
defamation but the defamatory statement has to be proved from evidence other than that
of the wife.
It is important to note that the communication of a matter defamatory of one spouse to the
other is sufficient publication. Thus, where defamatory matter concerning a husband is
published to his wife by a third person, or defamatory matter concerning the wife is
published to her husband, the husband and wife are regarded as distinct and different
persons, and an action can be maintained. In Theaker v Richardson, defendant wrote a
letter to the plaintiff making false allegations of her being a prostitute. The letter was sent
under the circumstances that the plaintiff’s husband in all probability would have read the
same. The plaintiff’s husband opened and read it. The defendant was held liable.
In Nemi Chand v Khemraj (AIR 1973 Raj. 240), the defendants called a meeting against
the plaintiff and made wild imputations against him. One of the defendants got these
speeches printed and the printouts were lying in his godown. The fact of the distribution
of the printouts to the public was not proved. The defendant contended that it was printed
by him but he wasn’t responsible for its publication. The plaintiff argued that even
printing constitutes publication. The court rejecting the plaintiff’s contention held that the
defendant was not liable. It is not the matter, but its publication which cause the injury.
Mere printing is not actionable.
A street news-vendor is not supposed to know the contents of the newspaper, he sells.
Ordinarily, therefore he is not liable. But it is otherwise where, with a view to attract
customers, he shouts the libellous matter contained in the newspaper.
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Defences to Defamation
The defences to an action for defamation are:
1.
Justification or truth.
2.
Fair comment.
3.
Privilege (absolute or qualified).
(1)
Justification or Truth
In a civil action for defamation truth of the defamatory matter is complete defence (under
criminal law, besides being true the imputation must be shown to have been made for
public good). The reason for the defence is that “the law will not permit a man to recover
damages in respect of an injury to a character which he either does not or ought not to
possess” [McPherson v Daniels (1929) 10 B.&C. 263]. The plea of justification by truth
is a well-established defence in India in a suit for defamation (N. Achuthan v The
Deshabhimani Printing & Publishing House AIR 1986 Ker. 41).
The defence is available even though the publication was made maliciously. Also, it is
immaterial in law that the defendant made a defamatory statement without knowing of its
truth, as long as it turns out to be true when made. However, if the statement is false, it is
no justification that the defendant honestly and on reasonable grounds believed it to be
true. If the defendant is not able to prove the truth of the facts, the defence cannot be
availed. In Radheyshyam Tiwari v Eknath (AIR 1985 Bom. 285), the defendant, who was
editor, printer and publisher of a newspaper published a series of articles against the
plaintiff, a Block Development Officer, alleging that the plaintiff had issued false
certificates, accepted bribe and adopted illegal means in various matters. In an action for
defamation, the defendant could not prove that the facts published by him were true and
therefore, he was held liable.
The Defamation Act, 1952 (England) provides that if there are several charges and the
defendant is successful in proving the truth regarding some of the charges only, the
defence of justification may still be available if the charges not proved do not materially
injure the reputation (In India, the law is possibly the same as prevailing in England).
A libel, which is also a crime, has a tendency to provoke a breach of the public peace,
and the more so, when it reflects the truth. And,
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therefore, it is said: “The greater the truth, the greater the libel.” So, in India, under
Exception 1 to Sec. 499, Indian Penal Code, and in England under the Libel Act, 1943,
the accused is required to prove not only that the statement complained of was true, but
also that it was made in public interest.
(2)
Fair Comment7
It is generally a defence available to authors, editors, critics, etc. To ‘comment’ means to
critically analyse existing facts. It is critical appreciation of existing facts and not
invention of new facts. The word ‘fair’ in the expression ‘fair comment’ embraces the
meaning of ‘honest’ (without malice) and also of ‘relevant’. Finally, this comment must
be in public interest. Administration of Government departments, public companies,
public institutions and local authorities, public meetings, pictures, theatres, public
entertainment, text books, novels, etc. are considered to be matters of ‘public interest’.
The privilege does not extend to calumnious remarks on the private character of the
individual.
‘Comment’ means an expression of opinion on certain facts rather than making a
statement of fact. A fair comment is a defence by itself whereas if it is a statement of fact
that can be excused only if justification or privilege is proved regarding that. For
example, A says of a book published by Z - “Z’s book is foolish: Z must be a weak man.”
It is a comment based on Z’s book and A will be protected if he has said that in good
faith. But if A says - “I am not surprised that Z’s book is foolish, for he is a weak man.” It
is not a comment but a statement of fact, and cannot be called a fair comment.
In McQuire v Western Morning News Co. (1903) 2 K.B. 100, the comment in question
was “A three act musical absurdity, written and composed by T.C. McQuire is composed
of nothing but nonsense of a not very humorous character, whilst the music is far from
attractive.” Held, that the words may be fairly called criticism.
Fair dose not mean fair by the standards of an ordinary reasonable man, rather the critic
has liberty so long as his comment can come within the gamut of criticism. Legitimate
criticism is not a tort. Mere
___________________
7.
Malice defeats the defence of fair comment - a short note. [C.L.C. 92]
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exaggeration, or even exaggeration, would not make the comment unfair. Liberty of
criticism must be allowed, or one would neither have purity of taste nor of morals.
However, criticism could not be used as a cloak for mere invective (sarcasm or satire),
nor for personal imputations not arising out of the subject matter or not based on fact.
Thus, an art critic’s opinion of a prominent dancer’s performances that the world would
be happier place if her feet had ambitions other than dancing amounts to criticism that
has entered the arena of sarcasm.
A writer in a public paper may comment on the conduct of a public man in the strongest
terms, but if he imputes dishonesty, he must be prepared to justify it. The comment could
not be fair when it is based upon untrue facts. In Tushar Kanti Ghosh v Bina Bhowmic
(1953) 57 C.W.N. 378, the Amrit Bazar Patrika published a news item which contained
statements like ‘day light robbery’ which were factually incorrect. As they were untrue
statement of fact, the defence of fair comment was defeated.
Whether a comment is fair or not depends upon whether the defendant honesty held that
particular opinion. If the comment is distorted due to malice on the part of the defendant,
his comment ceases to be fair and such a defence cannot be taken. Further, facts upon
which the comment is founded must be truly stated though later on they may not turn out
to be true at all.
(3)
Privilege8
There may be circumstances under which it is right that one should speak about another,
and state fully and freely what he honestly believes to be the truth as to his character and
conduct. On such occasions when the law recognizes that the right of free speech
outweighs the plaintiff’s right to reputation: the law treats such occasions to be
“privileged” and a defamatory statement made on them is not actionable. When a person
stands in such a relation to the facts of the case that he is justified in saying or writing
what would be slanderous or libellous in the case of anyone else, he is said to have a
privilege. Privilege may be either ‘Absolute’ or ‘Qualified’.
___________________
8. ‘A statement made in performance of duty is privileged." In the light of this
statement critically examine the tort of defamation. [I.A. S. -2009]
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Law of Torts
(a)
Absolute Privilege
It is an absolute defence as under it no action lies for the defamatory statement even
though the statement is false or has been made maliciously. In such cases the public
interest demands that an individual’s right to reputation should give way to the freedom
of speech. It is recognized in ‘Parliamentary proceedings’, ‘Judicial proceedings’,
‘Military and naval proceedings’, and, ‘State communications’. Thus, a statement made
by one officer of the State to another in the course of official duty is absolutely privileged
for reasons of public policy.
Article 105 (2) of Indian Constitution provides that (a) statements made by a member of
either House of Parliament, and (b) the publication by or under the authority of either
House of Parliament of any report, paper, votes or proceedings, cannot be questioned in a
court of law. A similar privilege exists in respect of State Legislatures, according to
Article 194 (2). Thus, anything said in the House, however injurious it may be to the
interest of third persons, cannot be examined outside the House viz. as an evidence
[Church of Scientology v Johnson Smith (1972) 1 All ER 378],
In Judicial proceedings, there can be no action against judges, counsels, witnesses, or
parties for words (written or spoken) in course of any proceedings before any court, even
though the words were written or spoken maliciously, without any justification or excuse.
The privilege extends to all pleadings and affidavits. However, a remark by a witness
which is wholly irrelevant to the matter of enquiry is not privileged [Jiwan Mal v
Lachman Das (1926) 27 P.L.R. 351]. Also, a criminal prosecution will lie for perjury if
the witness intentionally gives false evidence.
(b)
Qualified Privilege
It is different from the defence of absolute privilege in two respects. First, in this case it is
necessary that the statement must’ve been made without malice. Absolute privilege is not
affected by the presence of express malice; it is protected in all circumstances,
independently of the presence of good or bad faith. A qualified privilege is rebuttable by
proof of express malice on the part of the defendant. In a case of qualified privilege, the
person making a statement is not exempt from enquiry altogether (as in the case of
absolute privilege), but the question
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of liability will be determined by consideration of malice or otherwise on his part.
Second, in qualified privilege, there must be an occasion for making the statement. It is
not sufficient to attract the protection of qualified privilege that the subject-matter is one
of general public interest. A privileged occasion (in reference to qualified privilege) is an
occasion where the person/newspaper who makes a communication has an interest or a
duty (legal, social or moral), to make it to the person/public to whom it is made, and the
person/public to whom it is made has a corresponding interest or a duty to receive it. This
reciprocity is essential [Adam v Ward (1917) A.C. 309].
In the case of absolute privilege, it is the occasion which is privileged, and when once the
nature of the occasion is shown, it follows, as a necessary inference, that every
communication on that occasion is protected. But, in the case of qualified privilege, the
defendant cannot prove privilege until he has shown how the occasion was used. It is not
enough to have an interest or a duty in making a communication; the interest or duty must
be shown to exist in making the communication complained of.
The principle on which the qualified privilege is based is that such communications are
protected for the common convenience and welfare of the society. Generally such a
privilege is available either when the statement is made in discharge of duty or protection
of an interest or the publication is in the form of report of parliamentary, judicial or other
public proceedings. Communications made pursuant to a duty owned to society relate to
the character of servants, confidential and private matters and information as to crime,
etc. The following illustrations will clear the point:
(i)
A, a shopkeeper, says to B, who manages his business - “Sell nothing to Z unless
he pays you ready money, for I have no opinion of his honesty.” A is protected if he has
made this imputation on Z in good faith for the protection of his own interests. Also, a
master warning his servants against undesirable companions is protected by his interest in
their honesty. Thus, statements made in protection of common interest are protected viz.
communications between partners on joint owners furthering or defending common
interests.
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Law of Torts
(ii)
A former employer has a moral duty to state a servant’s character to a person who
is going to employ the servant. The person receiving the information has also an interest
in the information. But if a former employer, without any enquiry, publishes the character
of his servant with a motive to harm the servant, the defence of qualified privilege cannot
be taken. Similar protection is granted to a creditor who makes a statement about the
debtor’s financial position to another creditor.
(iii)
In the case of publication of defamatory matter in a newspaper, if duty to the
public exists (R.K. Karanjia v K.M.D. Thackrsey AIR 1970 Bom 424).
(iv)
Such communication may be made in cases of confidential relationships like
those of husband and wife, father and his son and daughter, guardian and ward, master
and servant or agent, solicitor and his client, partners or even close friends. Thus, a father
may acquaint his daughter about the character of a man whom she is going to marry.
In White v J. and F. (1939) 2 K.B. 827, a director of the defendant company, said of the
plaintiff: “What have you done with the money, White? You are 120 pounds short.”
These words were overheard by T, a co-employee of the plaintiff. Later, the director said
to the plaintiff, in the presence of P, another employee: “You understand on what
conditions I am dismissing you. You find 120 pounds short and I will give you your
week’s money.” In an action for slander based on these statements, it was argued that the
occasion was privileged. Held: In order to constitute a privileged occasion, the person to
whom the defamatory statement is published must be a person who has an interest or a
duty, legal, social or moral, to receive it, and where a statement is made to the plaintiff, as
here, in the presence of a third person, the occasion is not privileged unless the third
person has such an interest or duty. Neither T nor P had such an interest or duty. The
director was, therefore, liable.
A solicitor, under the instructions from his client, dictated to his typist, a letter addressed
to B, containing defamatory statements about B. The letter was press-copied by another
clerk. The question arose whether B could sue the solicitor for defamation. It was held,
that the privilege protecting a business communication made on a privileged
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occasion covers “all incidents of its transmission and treatment which are in accordance
with the reasonable and usual course of business.” Thus, the publication to his clerks by
the solicitor is covered by a qualified privilege, and therefore, B cannot sue the solicitor
for defamation [Boxsius v Golbert (1894) 1. Q.B. 842].
Fair and accurate reports of judicial/quasi-judicial proceedings possess qualified
privilege. The reports must be fair and a substantially correct account of what took place
in the Court. ‘Report’ must be distinguished from ‘comment’. If they are mixed, there is
no privilege. A fair and accurate report of any proceedings or debates in either House of
Parliament, or in Legislature of States or in any Committee of such Parliament or
Legislature, is privileged, even though it contains matter defamatory of an individual. If
the subject of such proceedings is of the public interest, legitimate criticism, made in a
newspaper, is also protected.
In Reynolds v Times Newspaper Ltd. (1999) 4 All ER 609, the House of Lords did not
accepted that ‘political information’ should be developed as a new category of qualified
privilege, whatever the circumstances. Such a development according to the court, would
not provide adequate protection for reputation which was an integral part of the dignity of
the individual and that it was unsound in principle to distinguish political discussion from
discussion of other matters of serious public concern.
Malice9 - In the case of a qualified privilege, no suit will lie upon a statement, even
though it is false and defamatory, unless the plaintiff proves express malice. The presence
of ‘malice’ destroy the defence of qualified privilege. Malice means making use of
privileged occasion for an indirect/improper or evil motive. Such malice can be proved
by plaintiff in a variety of ways, inter alia (i) by showing that the writer did not honestly
believe in the truth of these allegations, or that he believe the same to be false ; (ii) or that
the writer is moved by hatred or dislike, or a desire to injure the subject of the libel, and
(iii) by showing that out of anger, prejudice or wrong motive, the writer casts aspersions
on other people recklessly whether they are true or false.
___________________
9. Malice defeats the defence of qualified privilege - a short note. [C.L.C.-92]
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The plaintiff must prove actual or express ‘malice’ or ‘malice in fact’ (i.e. actual wrong
state of mind) as distinguished from ‘implied malice’ which the law presumes from the
mere publication of defamatory matter.
In Horrocks v Lawe (1964) 1 All ER 662, held that howsoever prejudiced the defendant
may have been or howsoever irrational in leaping to conclusions, unfavourable to
plaintiff, but if he believed in the truth of what he had said on privileged occasion that
entitled him to succeed in his defence of privilege. If it be proved that he did not believe
that what he published was true this is generally conclusive evidence of express malice,
for no sense of duty or desire to protect his own legitimate interests can justify a man in
telling deliberate and injurious falsehood about another.
BURDEN OF PROOF
The burden of proof is on the plaintiff. Thus, for pleading an innuendo, the plaintiff must
make out the special circumstances which made the words actionable and he must set
forth in his pleading the defamatory sense, he attributes to them. When the defence to
defamation is taken, the burden of proof is on the defendant. In a defence of justification
or truth, the defendant must make clear in the particulars of justification the case which
he is seeking to set up and must state clearly the meaning or meanings which he seeks to
justify. In a defence of fair comment, the defendant has to show that his comments
contain no misstatements of fact. In a defence of privilege (qualified), the defendant has
to prove that the occasion is privileged. If the defendant proves it, the burden of showing
‘actual or express malice’ or ‘malice in fact’ is cast upon the plaintiff.
It is important to note that in a case of libel it is not necessary to prove the actual loss of
reputation; it is sufficient to establish that the defamatory statements could damage one’s
reputation. Further, in all cases of joint publication each defendant is liable for all the
ensuing damage (viz. for a libel in a newspaper, the editor, the printer and the publisher
are liable to be sued either separately or together). However, book-sellers, newspaper
vendors or librarians are, generally, not liable.
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If the defamatory statement is repeated i.e. published again and again, a fresh cause of
action arises every time.
Who can sue - The publication of defamation can seldom give a right of action to any one
but the person defamed. The fact that a defamatory statement has caused damage to other
persons does not entitle them to sue. Thus a brother cannot sue for slander of his sister,
nor a father for defaming his daughter, nor the heir and nearest relation of a deceased
person for defamatory words spoken of the deceased. The Calcutta High Court permits
the husband to sue where unchastity is imputed to his wife, but the Madras High Court
not.
In Melepurath Sankunni Ezhuthassan v Thekittil Geopalankutty Nair (1986) 1 SCC 118,
the question was whether in a defamation action the right to sue survives if the plaintiff
dies. The court observed that under the Common Law, a cause of action for defamation
abates on the death of a person suing. Sec. 306, Indian Succession Act, 1925 and Rules 1
and 11 of Order XXII, C.P.C. make it clear that a cause of action for defamation does not
survive the death of the appellant.
If a suit for defamation is decreed in favour of the plaintiff and the plaintiff dies pending
an appeal against the decree, the suit will not abate but if the suit is dismissed and the
plaintiff dies pending an appeal filed by him, the appeal will abate. Because in the former
case, the cause of action has merged in the decree and the decretal debt forms part of the
plaintiff’s estate devolving on his death on his heirs, executors or administrators.
Remedies for Defamation
A suit for damages is the commonest form of remedy in cases of defamation. Further, the
publication of defamatory matter may also be restrained by an injunction under the
provisions of the Specific Relief Act, 1963. As defamation is also a crime, the wrongdoer can also be punished under the Indian Penal Code.
For the aggravation of damages, the plaintiff must prove aggravating circumstances e.g.
malice, gross recklessness, violence of language, excessive publicity, repetition of libel,
publishing fresh libels before or after the suit, refusal or neglect to retract or apologize,
etc.
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Law of Torts
For the mitigation of damages, the defendant must prove mitigating circumstances e.g.
apology by the defendant at the earliest opportunity, facts showing absence of malice or
of gross negligence, like an-inadvertent publication, innocent repetition of a libel,
mentioning the name of the informant, provocation by the plaintiff, bad reputation of the
plaintiff, etc.
Apology
English Law- This is a good defence in English Law under the Libel Act, 1843, and the
Defamation Act, 1952. Section 4 of the latter lays down the procedure by which an
innocent author or publisher can avoid his liability. The defendant must prove: (i) that the
words which had been published by him were published innocently, and (ii) that as soon
as he came to know that these words published by him resulted in the defamation of the
plaintiff, an offer of amends (a suitable correction and an apology) was made.
Indian Law- If an apology is tendered by the defendant and accepted by the plaintiff, the
former can resist the plaintiff’s suit for defamation. However, publishing a contradiction
and expressing regret over the mistake does not, by itself, amount to an apology.
FURTHER QUESTIONS
Q.1. A newspaper published from Varanasi in its issue dated 18.12.1991 published a
news item under the dateline: Nepal, December 17, that a person from Varanasi who was
exporting scented ‘aggarbattis’ had smuggled opium into Nepal in the form of
‘aggarbattis’. On information the U.P. Police went to Nepal and with the help of Nepal
Police examined three out of five packets and found to contain opium concealed therein.
The plaintiff who is owner of a firm, known as B and sons, manufacturing scented
‘aggarbattis’ and exporting the same to Nepal claimed damages pleading publication
constituted defamation since the news-item was understood to refer to him. The
newspaper in defence pleaded that it did not know at all the plaintiff and never intended
to defame it, and the news-item was also not published of and concerning the plaintiff.
Decide, giving reasons.
[C.L.C.-92]
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Defamation
A.1. Knowledge or Intention to Defame whether Necessary
Three essentials of defamation are:
1.
The words must be defamatory.
2.
The said words must refer to the plaintiff.
3.
The words must be published.
If the words published are taken to be referring to the plaintiff the defendant will be liable
and it will be no defence that the defendant did not intend to defame the plaintiff. In
Newstead v London Express Newspaper Ltd. (1940) 1 K.B. 377, the defendants
published an article stating that “Harold Newstead, a Camberwell man” had been
convicted of bigamy. The story was true of Harold Newstead, a Camberwell bar man.
The action for defamation was brought by another Harold Newstead, a Camberwell
barber. As the words were considered to be understood as referring to the plaintiff, the
defendants were held liable (Also see Hulton & Co. v Jones in the text).
It has been noted above that the liability for the defamation did not depend upon the
intention of the defendant to defame, but upon the fact that the statement made by him
was considered to be defamatory. This created a lot of hardships for many innocent
authors, printers and publishers because the fact that they were innocent in publishing the
statement did not save them from liability. Defamation Act, 1952 (England) was passed
to remove such hardships. Section 4 of the Act provides that the defendant in such cases
should make an offer of amends i.e. he must publish a suitable correction and an apology
as soon as possible. If such offer is accepted by the plaintiff, the defamation case ends,
however if not accepted then the defendant can avoid the liability by proving that the
words were published innocently and that as soon as he came to know that these words
had resulted in defamation, an offer of amends was made.
The words are deemed to be published innocently if it is proved
(a)
that the publisher did not intend to publish them of and concerning that person,
and did not know of circumstances by virtue of which they might be understood to refer
to him, or (b) that the words were not defamatory on the face of them and that the
publisher exercised all reasonable care in relation to the publication.
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Law of Torts
In TV. Rama Subba Iyer v A.M.A. Mohideen (AIR 1972 Mad. 398), the Madras High
Court (in tune with the Defamation Act, 1952) held that in India there was no liability for
the statements published innocently. The facts of that case are similar to as given in the
present problem. The defendants in that case pleaded that they weren’t aware of the
existence of the plaintiff and they did not intend to defame him. Moreover, they further
stated that on coming to know that the alleged defamation has resulted as a consequence
of their publication of the news-item, they have published a correction in their later issue
stating that the news item in question did not refer to the plaintiff (Also see D P.
Chowdhery v Km. Manjulata in the text).
Thus, in the present case, the newspaper is not prima facie liable. However, it was under
a duty to publish a correction as soon as the mischief was brought to notice.
Q.2. Z is not having good relations with his mother-in law. He tells his wife, “There is
hardly a day when your mother does not indulge in adultery.” The statement made by Z is
false. Is Z liable for the tort ofdefamation? [C.L.C.-94/98]
A.2. One of the essentials of the tort of defamation is that the words must be published.
Publication means making the defamatory matter known to some person other than the
person defamed. In the eyes of law, husband and wife are one person and the
communication of a defamatory matter from the husband to the wife or vice versa is no
publication.
In T.J. Ponnen v M.C. Verghese (AIR 1970 SC 1876), the question was whether a letter
from the husband to the wife containing defamatory matter concerning the father-in-law
(wife’s father) could be proved in an action by the father-in-law against his son-in-law. In
that case, T.J. Ponnen wrote a number of letters to his wife containing some defamatory
imputations concerning his father-in-law, M.C. Verghese. His wife passed on those
letters to her father. The father-in-law launched a prosecution against his son-in-law
complaining of the defamatory matter contained in those letters. Ponnen contended that
the letters addressed by him to his wife are not. except with his consent, admissible in
evidence by virtue of Sec. 122, Evidence Act. The Supreme Court held that even though
in view of Sec. 122, Evidence Act, the complainant cannot seek
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Defamation
to support his case upon the evidence of the wife of the accused, but if the
communication between the husband and wife has fallen to his hands the same can be
proved in any other way.
Thus, in the present case, Z is liable for the tort of defamation. However, for that, the
mother-in-law has to prove the defamatory statement from evidence other than that of Z’s
wife.
(Note: It is important to note that the communication of a matter defamatory of one
spouse to the other is sufficient publication. In Theaker v Richardson, defendant wrote a
letter to the plaintiff making false allegations of her being a prostitute. The letter was sent
under the circumstances that the plaintiff’s husband in all probability would have read the
same. The plaintiff’s husband opened and read it. The defendant was held liable).
Q.3. What is meant by ‘innuendo’? What are the facts which the plaintiff must prove or
establish in order to sustain a plea of innuendo?
[I.A.S.-92/2005/2009]
A.3. Innuendo
Words prima facie innocent are not actionable unless their secondary or latent meaning is
proved by the plaintiff. Where the words alleged to be defamatory do not appear to be
such on their face, the plaintiff must make out the circumstances which made them
actionable, and he must set forth in his pleading the defamatory sense he attributes to
them. Such explanatory statement is called an innuendo. An innuendo is an explanatory
averment in the statement of claim defining the meaning which the plaintiff assigns to the
words complained of or specifying the plaintiff as the person to whom they apply. It is
the office of an innuendo to define the defamatory meaning which the plaintiff sets on the
words; to show how they come to have that defamatory meaning; and also to show how
they relate to the plaintiff whenever that is not clear on the face of them.
An innuendo is necessary where the imputation is made in an oblique way, or by way of
question, exclamation, or conjecture, or irony. An innuendo, properly so called, which
provides a separate cause of action, must be supported by extrinsic facts or matter and
cannot
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Law of Torts
be founded on mere interpretation. It is no rule that a defamatory article must contain
within itself some ‘Key or pointer’ indicating that it referred to him; where necessary
extrinsic evidence is admissible to import a defamatory meaning to words otherwise
innocent.
The cause of action based on natural or ordinary meaning is materially different from a
cause of action based on some special meaning derived from special circumstances.
When the plaintiff relies on the natural and ordinary meaning without reference to any
special circumstances and pleads the meaning which according to him is the natural
meaning, such a plea is popularly called as pleading an innuendo. However, when the
plaintiff bases his claim on a legal innuendo, he must in his statement of claim specify the
particular person or persons to whom the statement was published and the special
circumstances known to that person or persons, for these are the ‘material facts’ on which
he relies for his cause of action.
Q.4. Saptahik, a weekly, published an article, making a frontal attack directed against Mr.
Z, the Chief Minister of State P. The object of the article was to expose to the public how
Mr. Z has exploited his official position to amass a large sum of money and granted
favours to his close family members by resorting to unlawful and questionable means.
Mr. Z brings an action against the author of the said article, the editor, owner and printer
of Saptahik. The defendants plead the defences of truth, fair comment and qualified
privilege. Decide with the help of judicial precedents.
[D.U.-2009] [C.L.C.- 93/95]
The editor of a weekly published a series of articles directed against the plaintiffs
business alleging how the wealth of the vast empire was built by having recourse to the
unlawful and questionable means involving tax-evasion, import-export rackets, foreign
exchange violations and how the investigations into the operations of the organisation
were bogged down. In an action for defamation, the defendant put up the defence of fair
comment on a matter of public interest. The plaintiff brought evidence to show that the
defendant had to tender an apology to the plaintiff in an earlier defamation case and that
the present publication was motivated by malice. Discuss the defence of fair comment in
the light of the facts of the case.
[I.A.S.-2010]
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Defamation
A.4. The present problem is based on the following case:
Leading Case: RUSTOM K. KARANJIA v K.M.D. THACKERSEY (AIR 1970
Bom. 424)
In this case, an article was published in Blitz, an English weekly, making attack directed
against the “House of Thackersey”, a business organization, which constituted of the
plaintiff as its head, his brother and their wives, close friends and relatives. The aim of
the article was to suggest as to how the plaintiff, who was also the chairman of the
Textile Control Board, had exploited his position in amassing enormous wealth having
recourse to unlawful and questionable means, involving tax evasion, financial jugglery,
FERA violations, etc. The plaintiff brought an action against R.K. Karanjia, the editor of
the Blitz weekly, the owners of the newspaper, its printers and the person who furnished
the material for the said article. The trial court held the defendant guilty of defamation,
rejecting the defences of truth, fair comment on a matter of public interest and qualified
privilege.
The only defence pleaded before the High Court was qualified privilege. The plea of
qualified privilege was rejected for two reasons. Firstly, the element of “duty” in
communicating the statement was missing. It was held that the mere fact that the matter is
of general public interest is not enough, the “person or the newspaper who wants to
communicate to the general public must also have a duty to communicate and the general
public must have a corresponding interest and duty to know what is happening at the
national and larger scale and affecting their lives. And if no such duty, apart from the fact
that the matter is one of public interest, can be spelt out in the particular circumstances of
the case, the publication could not be said to be upon privileged occasion.” Another
reason for rejecting the defence of qualified privilege was that the article was published
maliciously, not with an idea to serve public interest but with a view to expose the
plaintiff because on an earlier occasion plaintiff had made the defendant editor to
apologise for publishing a defamatory article.
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The court observed: The principle is that such communications are protected for the
common convenience and welfare of society. Where the common convenience and
welfare of society are not involved, no occasion could be regarded as privileged occasion
(Thus, in the case of publication of libellous matter in a newspaper, duty to the public has
got to be proved).
It was, however, contended for the defendants that in a case like the present where a
journalist honestly believes that the public exchequer is deprived of a large sum of money
and the Government is seized paralysis in bringing the culprit to book speedily, this court
having regard to the conditions obtaining in this country, should recognize in this
journalist a duty to bring the fact to the notice of the public with a view to put pressure on
the Government to act. The court criticized ‘yellow journalism’, ‘sensationalism,’ and
‘malicious and irresponsible attack’, even when the newspaper wanted to expose evil in
high places.
The court observed: We do not feel the need of recognizing any such new duty, because
of the journalist like any other citizen has the right to comment fairly and if necessary,
severely on matter of public interest, provided the allegations of facts he has made are
accurate and truthful, however, defamatory they may be otherwise. Since his right to
comment on matters of public interest is recognized by law, the journalist obviously owes
an obligation to the public to have his facts right. Where the journalist himself makes an
investigation, he must make sure that all his facts are accurate and true, so that if
challenged, he would be able to prove the same.]
In a similar case - Radheysham Tiwari v Eknath (AIR 1985 Bom. 285), the defendant
who was editor, printer and publisher of a newspaper published a series of articles against
the plaintiff, a Block Development Officer, alleging that the plaintiff had issued false
certificates, accepted bribe and adopted illegal means in various matters. In an action for
defamation, the defendant pleaded all the three defences, viz. truth, fair comment, and
qualified privilege. All the defences were rejected. The defence of justification could not
be available as the truth of all the facts mentioned in the article could not be proved. The
defence of fair
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Defamation
comment could not be taken when there was statement of fact, rather then expression of
opinion. And the defence of qualified privilege also could not be availed because the
publications were mala fide and the editor consciously tried to malign the B.D.O.
Thus, in the present case, the defendant can avail the defences of the truth and qualified
privilege. But for that he has to prove the truth of the facts and ‘duty’ to the public. If he
proves it, the burden of showing actual or express malice will be on the plaintiff i.e. Mr.
Z. If Mr. Z succeeds in it, than he can claim damages for defamation.
Q.5. (a) A, a journalist, writes an article against B, a public servant, alleging that B has
misappropriated a sum of Rs. 2 lacs from the public fund under his control. In an action
in tort for defamation by B against him, A takes the defence of fair comment. Discuss
with reasons. [I.A.S.- 94]
(b)
Z tells his unmarried sister that she should not mix up with A because A is a
gambler. The statement is false but Z believes it to be true. Is Z liable for the tort of
defamation?
[C.L.C.- 94]
A.5.(a) The comment cannot be fair when it is based upon untrue facts. A comment based
upon invented and untrue facts is not fair. Thus if A is to succeed in his defence of fair
comment, he has to prove the truth of facts mentioned in the article.
(b)
Z is not liable for the tort of defamation. The defence of qualified privilege is
available to Z because the statement has been made in discharge of duty of protection of
an interest and the statement has been made bona fide without malice.
Q.6. A well-known Calcutta daily ‘Amrit Bazar Patrika’ published an objectionable and
defamatory statement respecting Mrs. B. The statement reads: “Another day-light robbery
by discharged employees-Another day-light robbery was committed by Mrs. B’s Union
members and their hirelings early yesterday (Friday) morning when our van containing
thousand of copies of Amrit Bazar Patrika were looted ...”
Whether the publication was libellous i.e. defamatory? Whether it constituted fair
comment? Whether the defendant could claim protection by the privilege of publishing
the information
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Law of Torts
alleged to be in the public interest? Discuss, giving reasons and precedents.
A.6. The present problem is based on the following case:
Leading Case: TUSHAR KANTI GHOSH v BINA BHOWMIC
[(1953) 57 C.W.N. 378]
In this case, the High Court found the publication to be defamatory since it aimed at the
respondent personally and contained the statement which discredited her. It was observed
that the plain meaning of the libellous wordings was that an organization of men headed
by the respondent had committed one or more day-light robberies in the past and they
committed another robbery with hired persons the previous day too. Personal capacity of
a person is not limited to his character as an individual in private life but comprises also
his personal conduct in relation to the affairs of the association or concern with which he
or she may be concerned.
The court conceded that the matter was of public interest and the defence of fair comment
could be availed of. But the court observed that:
(i)
the comment must be fair in the sense that it must be based on facts truly stated
and the inference drawn must be honest and reasonably warranted by such facts;
(ii)
having stated the facts truly, some observations by way of comment may be added
provided they consist in inference which might legitimately be drawn from the facts
stated; and,
(iii)
some exaggeration would be excused only if it is merely an excess of severity
short of violent invective (abuse) and cannot take the form of an addition of untrue facts.
It is true that an inference or comment may sometimes take the form of a statement of
fact, but it must appear that what has been stated in terms of fact is only a conclusion or
deduction from other facts truly stated and such deduction must be one
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Defamation
fairly warranted. It is one thing to comment upon then criticize, even with severity, the
acknowledged or proved acts of a public man, and quite another to assert that he has been
guilty of a particular act of misconduct [Davis v Shipston, (188) A.C. 1876].
The court accepted the plea that the occasion was privileged in the sense that defendants
had a right to explain their position in order to protect their interest with the readers,
subscribers and advertisers. The ‘comment interest’ of defendants, readers, etc. was the
strike situation and reason why the delivery of newspaper was interrupted. The
defendants wanted to protect their good name and the patronage of their subscribers and
advertisers. It was however observed that it was unnecessary to state that the plaintiff’s
union had employed hirelings.
Further, it was only a case of qualified privilege which could be granted only if the
statement was made without malice.
The plaintiff has to prove express malice (i.e. malice in fact) as distinguished from
implied malice which the law presumes from the mere publication of defamatory matter.
Such malice is proved when the publication is found to contain unproved and libellous
facts recklessly made or made with an indirect and wrong motive such as spite, ill-will,
etc. In this case, there was considerable evidence that the defendants acted from malice
i.e. not for the purpose which would excuse them but for an indirect purpose. It wasn’t
necessary to hold up the plaintiff a person guilty of bad faith in her activities as a labour
leader and a person given to trickery and organized violence.
Q.7. Distinguish the wrong committed in the following:
(i)
A solicitor, acting on behalf of his client, dictated a letter to the plaintiff stating
therein that she (plaintiff) bears immoral character. The letter then was posted to the
plaintiff.
(ii) X told Z that Y is suffering from AIDS though the statement is not true.
[I.A.S.-98]
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Law of Torts
A.7.(i) Communication between a solicitor and his client is protected (‘qualified
privilege’) and is a defence to an action for defamation. The solicitor was acting under a
legal duty to make the statement to the plaintiff.
(ii)
Where the writer casts aspersions on other people recklessly whether they are true
or false, the defence of qualified privilege cannot be taken. Thus, X will be liable for the
tort of defamation.
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9
Nuisance
The term ‘nuisance’ has exhaustive and diverse definitions. The word ‘nuisance’ is
derived from the French word nuire, to do hurt, or to annoy. In Durga Prasad v State
(AIR 1962 Raj 92), it was observed that ‘nuisance’ ordinarily means anything, which
annoys, hurts or that which is offensive.
Nuisance as a tort means an unlawful interference with a person’s use or enjoyment of
land, or some right over, or in connection with it (Winfield). Acts interfering with the
comfort, health or safety are the examples of it.
Nuisance is the wrong done to a man by unlawfully disturbing him in the enjoyment of
his property, or, in some cases, in the exercise of a common right (Pollock). Nuisance
includes any act, omission, injury, damage, annoyance or offence to the sense of sight,
smell, hearing or which is or may be dangerous to life or injurious to health or property.
Acts done with the intention of annoying a neighbour and actually causing annoyance
will be nuisance.1
___________________
1. “Acts done with the intention of annoying a neighbour and actually causing annoyance
will be nuisance.” Comment.
A, a music teacher, gives music lessons at his residence. B, the neighbour, residing in the
adjoining house, maliciously causes discomfort to A, by hammering against the party
wall, beating the trays, whistling and shrieking. A prays for an injunction against B,
should be succeed? [I.A.S.-2007]
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Law of Torts
Nuisance is generally a continuing wrong (state of affairs). It must not be momentary
though it could be temporary. A constant noise, smell or vibration is a nuisance and
ordinarily an isolated act of escape of noise cannot be considered to be a nuisance e.g. an
isolated act of hitting a cricket ball on to a road. However, in Dollman v Hillman Ltd.
(1941) 1 All ER 355, the defendant was held liable for the isolated act, when the plaintiff
slipped on a piece of fat lying outside the defendant’s butcher’s shop, in nuisance and
negligence.
A nuisance may be caused by negligence, and there may be cases in which the same act
will support an action of either kind, but, generally speaking, these two classes of actions
are distinct, and the evidence necessary to support them is different. Nuisance is no
branch of the law of negligence, and it is no defence that all reasonable care to prevent it
is taken.
Kinds of Nuisance
Nuisance is of two kinds: Public or common nuisance and private nuisance. Public
nuisance is a crime (Sec. 268, IPC) whereas private nuisance is a tort or civil wrong.2
Public Nuisance
A public nuisance can be defined as an unreasonable interference with a right common to
general public. Obstructing a public way by digging a trench, carrying on trades which
cause offensive smells or intolerable noises, etc. are examples of public nuisance. Thus,
the acts constituting public nuisance are all of them unlawful acts; those, which constitute
private nuisance, are not necessarily or usually unlawful. Public nuisance does not create
a civil cause of action for any person. In order that an individual may have a private right
of action in respect of a public nuisance (i)
He must show a particular injury to himself beyond that which is suffered by the
rest of public. He must show that he has
___________________
2. Distinguish between public nuisance and private nuisance.
[I. A. S.-99]
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Nuisance
suffered some damage more than what the general body of the public had to suffer.
(ii)
Such injury must be direct, and not a mere consequential injury; as, where one
way is obstructed, but another is left open.
(iii)
The injury must be shown to be of a substantial character.
Thus, in order to sustain a civil action in respect of a public nuisance, proof of special and
particular damage is essential. The object of this rule is to avoid multiplicity of litigation.
In Dr. Ram Raj Singh v Babulal (AIR 1982 All 285), the defendant erected a brick
grinding machine adjoining the premises of the plaintiff, who was a doctor. The dust
generated by the machine entered the plaintiff’s chamber and caused physical
inconvenience to him and his patients. It was held that special damage to the plaintiff had
been proved.
In Campbell v Paddington Corpn. (1911) 1 K.B. 869, an uninterrupted view of the funeral
procession of King Edward VIII could be had from the window of the plaintiff’s
building. The plaintiff accepted certain payments from certain persons and permitted
them to occupy seats in her building. Before the date of the said procession the defendant
corporation constructed a stand on the highway in front of the plaintiff’s building, which
obstructed the view. The plaintiff thus deprived of the profitable contract of letting seats
in her building. She filed a suit against the Corporation contending that the stand was a
public nuisance and had caused special loss to her. Held, that she was entitled to claim
compensation.
Private Nuisance (Tort of Nuisance)3
To constitute the tort of nuisance the following essentials are required to be proved:
(i)
Unreasonable interference- Interference may cause damage to the plaintiff’s
property or may cause personal discomfort to
____________________
3. Write a short note on Tort of nuisance.
Explain the elements of the tort of private nuisance.
[C.L.C.-94/95] [I. A. S.-92]
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Law of Torts
him in the enjoyment of the property. Every interference is not a nuisance.3a Every
person must put up with some noise, some vibration, some smell or inconvenience, etc.
so that other members of the society can enjoy their own rights. Thus, a person having a
house by the roadside must put up with such inconvenience, which is incidental to the
traffic. So long as the interference is not unreasonable no action can be brought.
What interference is unreasonable varies according to different localities. In Sadleigh v
O’ Callageham (1940) AC 880, held that the test of reasonableness is according to the
ordinary usages of mankind living in society. An act, which is otherwise reasonable,
doesn’t become unreasonable and actionable due to the sensitiveness of the plaintiff. If
certain kind of traffic is no nuisance for a healthy man, it will not entitle a sick men to
bring an action if he suffers thereby, even though the damage is substantial.
Running a flour mill in a residential area has been held to be nuisance (Radhey Shyam v
Gur Prasad AIR 1978 All. 86). Similarly, when the starting of a brick kiln at a certain
place is likely to spoil the quality of cotton in a ginning factory, that is a valid ground for
injunction against the starting of the brick kiln there, even though the local authority has
given a licence for starting of the kiln (S. Chettiar v Sri Ramkumar Ginning Firm AIR
1987 Mad. 28). In the above case, a right to prevent the occurrence of nuisance was
recognized, before the nuisance was actually caused.
In A.L. Ranjane v Ravindra Ishwardas Ssthna (2003) 1 SCC 379, it was held that a tea
stall whose clients and miscellaneous articles belonging to stall owner took up significant
amount of space outside stall, and which was a cause of hindrance to free flow of traffic,
was a nuisance on the road as well as a source of nuisance to the plaintiff as it abutted on
the side of the building owned by him.
(ii)
Interference with the use or enjoyment of land- Interference may cause either
injury to the property itself (for example, by
____________________
3a. We must use our property so as not to cause discomfort to another's use of property.
Yet a temporary discomfort is not actionable. Explain the law.
[I.A.S.-2010]
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Nuisance
allowing the branches of a tree to overhang on the land of another person, or the escape
of the roots of a tree, water, gas, smoke or fumes, etc. on the neighbour’s land or even by
vibrations) or injury to comfort or health of occupants of certain property (for example,
excessive noise being emitted by a mill in a residential area).
In Noble v Harrison (1926) 2 KB 332, however, held that the fact that the branch of tree
was overhanging on the highway was not nuisance, nor was the nuisance created by its
fall as the defendant neither knew, or, could have known that the branch would break and
fall. However, projections on private land constitute nuisance, as there is an interference
with enjoyment of one’s property.
It is to be noted that only substantial interference with comfort and convenience in using
the premises is actionable as a nuisance. A mere trifling or fanciful inconvenience is not
enough. The standard of comfort and convenience in using the premises varies from time
to time and place to place. Inconvenience and discomfort from the point of view of a
particular plaintiff is not the test of nuisance but the test is how an average man residing
in the same area would take it. Disturbances to neighbours throughout the night by the
noises of horses in a building converted into a stable was held to be nuisance [Ball v Ray
(1873) LR 8 Ch. App. 467],
Similarly, attraction of large and noisy crowd outside a club kept open till 3 a.m. was
held to be nuisance [Bellamy v Wells (1800) 90 LJ Ch. 156] and also collection of noisy
and disorderly people outside a building in which entertainment by music and fireworks
have been arranged for profit [Walker v Brewster (1867) LR 5 Eq. 25], are instances of
nuisance.
Damages in Nuisance
In an action for nuisance, actual damage is required to be proved. In the case of public
nuisance, the plaintiff can bring an action in tort only when he proves a special damage to
him. In private nuisance, although damage is one of the essentials, the law will often
presume it.
In Kuldip Singh v Subhash Chander Jain (AIR 2000 SC 1410), it was held that an
injunction to prevent an apprehended or future
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Law of Torts
nuisance will generally not be granted unless the threat be imminent or likely to cause
such damage as would be irreparable once it is allowed to occur.
Another category of ‘future’ nuisance may be when the likely act of the defendant is
inherently dangerous or injurious such as digging a ditch across a highway or in the
vicinity of a children’s school or opening a shop dealing with highly inflammable
products in the midst of a residential locality.
Defences to Nuisance
Effectual defences Defences to Nuisance
(i)
Prescription- A right to do an act, which would otherwise be a private nuisance,
may be acquired by prescription (i.e. by elapse of certain number of years). A right to
commit a private nuisance may be acquired as an easement if the same has been
peaceably and openly enjoyed as an easement and of right for a period of 20 years.
(ii)
Statutory authority- An act done under the authority of a statute is a complete
defence. Thus, a railway company authorised to run railway trains is not liable if, in spite
of due care, the sparks from the engine set fire in the adjoining property.
Ineffectual defences
(i)
Nuisance due to act of others- Sometimes the act of two or more persons, acting
independently of each other, may constitute a nuisance although the act of any one of
them alone would not be so.
(ii)
Public good- It is no defence to say that what is a nuisance to a particular plaintiff
is beneficial to the public in general, otherwise, the public utility undertaking could be
held liable for the unlawful interference with the rights of individuals.
(iii)
Reasonable care- Use of reasonable care to prevent nuisance is generally no
defence. If an operation cannot by any care and skill, be prevented from causing a
nuisance, it cannot, lawfully be undertaken at all, except with the consent of those injured
by it or by the authority of a statute.
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(iv)
Plaintiff coming to nuisance- It is no defence that the plaintiff himself came to the
place of nuisance. A person cannot be expected to refrain from buying a land on which
nuisance already exists.
Even in a noisy locality, if there is a substantial addition to the noise by introduction of
some machine, etc. at defendant’s premises which material affects the physical comforts
of the occupants of the plaintiff’s house, then also noise will amount to actionable
nuisance (Dhanna Lal v Thakur Chittar Singh AIR 1959 M.P. 240).
Abatement of Nuisance
An occupier of land is permitted to abate, i.e. to terminate by his own act, nuisance which
is affecting his land. For example, he may cut the branches (overhanging) or the roots of
the neighbour’s trees which have escaped to his land. Generally before abatement is
made, a ‘notice’ to the other party is required unless the nuisance constitute a danger to
the life or property. When the abatement is possible without going on the wrong-doer’s
land, the same may be done without notice.
It is a remedy which is not favoured by the law as it may lead to breach of the peace. The
party abating a nuisance must be careful not to interfere with the property of the wrongdoer (thus the abater should not appropriate to himself the branches of the overhanging
tree or even the fruits found on them) in excess of what is necessary to abate the
nuisance, and if there are alter-native methods of abatement the least injurious method
must be adopted. A private individual cannot abate a public nuisance, unless it causes
him some special and peculiar harm; the remedy lies in the writ.
FURTHER QUESTIONS
Q.1. “Under the tort of nuisance a person cannot increase the liabilities of his neighbour
by applying his own property to special uses, whether for business or pleasure.” Examine.
[I.A.S.-95]
A.1. To constitute the tort of nuisance, it is essential that an unreasonable interference
may cause damage to the plaintiff’s
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property or may cause personal discomfort to the plaintiff in the enjoyment of property.
However, an act which is otherwise reasonable does not become unreasonable and
actionable when the damage, even though substantial, is caused solely due to
sensitiveness of the plaintiff or the use to which he put his property.
A person cannot increase the liabilities of his neighbours by carrying on an exceptionally
delicate trade. In Robinson v Kilvert (1889) 41 Ch.D. 88, the plaintiff warehoused brown
paper in a building. The heat created by the defendant in the lower portion of the same
building for his own business dried and diminished the value of the plaintiff’s brown
paper. The loss was due to an exceptionally delicate trade of the plaintiff and paper
generally would not have been damaged by the defendant’s operations. Held, that the
defendant was not liable for nuisance.
“A man who carries on the exceptionally delicate trade cannot complain because it is
injured by his neighbour doing something lawful on his own property, of it is something
which would not injure anything but an exceptionally delicate trade” [Eastern & South
African Telephone Co. v Cape Town Tramways (1902) A.C. 381]. In that case, plaintiff’s
submarine cable transmissions were disturbed by escape of electric current from the
defendant’s tramways. It was found that the damage was due to the unusual sensitiveness
of the plaintiff’s apparatus and such damage won’t occur to person carrying on ordinary
business, the defendant was held not liable for the escape.
Similarly, in Heath v Mayor of Brighton (1908) 98 L.T. 718, the court refused to grant
injunction in favour of the incumbent and trustee of a Brighton church to restrain
“buzzing noise” from the defendant’s power station. It was found that the noise didn’t
cause annoyance to any other person but the incumbent, nor was the noise such as could
distract the attention of ordinary persons attending the church.
Q.2. A, the owner of a house, allows the branches of a tree in his compound to overhang
the adjoining highway. B, a driver of the city bus corporation, drives a bus negligently
very close to the overhanging branches so that the branches injure a passenger in the bus
through a window, and he loses his eyes. From whom can the passenger recover damages
for
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the loss of the amenity, from B, the city bus corporation, or A, or from all the three?
[I.A.S.-92]
A.2. The present case falls under three heads: negligence, vicarious liability and tort of
nuisance.
The passenger can recover damages from the driver of bus, B, and the city bus
corporation. There was a clear case of negligence on B’s part and on account of vicarious
liability the city bus corporation was also liable. However, the action against A on the
ground of nuisance would fail.
The mere fact that there is some projection on a highway does not make the occupier of
the premises liable for nuisance. Even if such projection which was naturally on
premises, for example, a tree breaks or collapses and cause damage to some person on the
highway, the occupier cannot be made liable unless it can be shown that the occupier
knew or ought to have known about the dangerous condition of the projection.
In Noble v Harrison (1926) 2 K.B. 332, the branch of a tree growing on the defendant’s
land hung on the highway. In fine weather the branch of the tree suddenly broke and fell
upon the plaintiff’s vehicle which was passing along the highway. The plaintiff sued the
defendant, to make him liable either for nuisance, or alternatively, for the rule in Rylands
v Fletcher. Held, that there was no liability for nuisance because the mere fact that the
branch of tree was overhanging was not nuisance, nor was the nuisance created by its fall
as the defendant neither knew nor could’ve known that the branch would break and fall.
(It is important to note that as regards projections on private land rather than on the
highway, such projections in themselves constitute nuisance because in such a case there
is an interference with the neighhour’s absolute right to the uninterrupted enjoyment of
his own land.)
Q.3. Study very carefully the following two situations:
Situation A: The defendant, a deeply religious man and owner of a house in the heart of a
city, set it apart free of rent for those who wished to use the same for religious purpose.
As a result the house remained occupied most of the time. The music played
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through the loudspeakers during religious ceremonies caused constant noise and
inconvenience to the neighbours.
Situation B: The defendant established a flour mill in a residential area in the heart of a
city adjacent to the plaintiffs house. Continuous running of the mill for long hours every
day caused unpleasant noise as well as continuous vibrations in the house of the plaintiff.
Compare the tortuous liability of the defendants in the above mentioned situations. Give
reasons and cite case law.
[I.A.S.-95/2001]
A.3. When a person’s conduct unduly interferes with his neighbour in the comfortable
and convenient enjoyment of his land, it is a private nuisance. It will be manifest that
making ‘unreasonable noises’ comes in this category and to be actionable must be such as
to be a real interference with the comfort or convenience of living according to the
standards of the ‘average man.’
In Dhanna Lal v Thakur Chittar Singh (AIR 1959 M.P. 240), held that the constant noise,
if abnormal or unusual, can be an actionable nuisance, if it interferes with one’s physical
comforts. Generally, unusual or abnormal noise on defendant’s premises which disturbs
sleep of the occupants of the plaintiff’s house during night, or which is so loud during
day time that due to it one cannot allow hear ordinary conversation in the plaintiff’s
house, or which cannot allow the occupants of the plaintiff’s house to carry on their
ordinary work is deemed to be a noise which interferes with one’s physical comforts. If
the noise amounts to an actionable nuisance, the defence that the defendant is making a
reasonable use of his own property will be ineffectual. Even in a noisy locality, if there is
a substantial addition to the noise by introduction of some machine, instrument or
performances at defendant’s premises, which materially affects the physical comfort of
the occupants of the plaintiff’s house, then also noise will amount to actionable nuisance.
In Shaikh Ismail v Venkatanarasimhu (AIR 1936 Mad. 905), the defendant set apart
portion of his house for a charitable purpose, namely, for performing marriage
ceremonies, pujas, etc. Loud noise was produced from these activities and the noise
continued to be made long after the hour when people go to sleep. Held, that the noise
amounted to an actionable nuisance.
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In Radhey Shy am v Gur Prasad (AIR 1978 All. 86), running a flour mill in a residential
area has been held to be nuisance. In Dhannalal’s case, the plaintiff has his house at a
distance of 8-9 feet from the flourmill belonging to the defendants. The plaintiff alleged
that the working of flour-mill caused great trouble to the occupants of the house, due to
noise they cannot hear their own conversation, and the smoke, vibrations and the noise of
the mill interfered with their physical comforts. Held, the defendant’s action amounted to
actionable nuisance.
Thus, in both, Situation A and B, the defendants are liable on account of tort of nuisance.
Q.4. “The mere fact that a process or business is useful to persons generally, in spite of its
annoyance to the plaintiff, is no defence to an action for the tort of nuisance”. Examine.
[I.A.S.-97]
A.4. In Shelfer v City of London Electric Lighting Co. (1913) 1 Ch. 269, during the
building of an electric power house by the defendants there were violent vibrations
resulting in damage to the plaintiff’s house. In an action for injunction by the plaintiff the
defence pleaded was that if the building was not constructed the whole of the London city
would suffer by losing the benefit of light. The plea was rejected by the court. Similarly,
in Adams v Ursell (1962) 2 B & S 640, an injunction was issued preventing the
continuance of a fried fish shop in the residential part of a street although, as alleged, the
injunction would mean a great hardship to the defendant and his ‘poor’ customers.
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10
Contributory and Composite Negligence
CONTRIBUTORY NEGLIGENCE
In certain circumstances a person who has suffered an injury will not be able to get
damages from another for the reason that his own negligence has contributed to his
injury; every person is expected to take reasonable care of himself. According to Dr. John
G. Fleming, “Negligence is conduct that fails to conform to the standards required by law
for safeguarding others (actionable negligence) or oneself (contributory negligence)
against unreasonable risk of injury.” Thus when the plaintiff by his own want of care
contributes to the damage caused by the negligence or wrongful conduct of the defendant,
he is considered to be guilty of contributory negligence.
For example, a pedestrian tries to cross the road ail of a sudden and is hit by a moving
vehicle, he is guilty of contributory negligence. In this case, the defendant could
completely escape his liability for the accident, on account of the plaintiff’s negligence
which contributed to his injury. Take another case, if the conductor of a bus invites
passengers to travel on the roof of the bus, and one of the passengers travelling on the
roof is hit by the branch of a tree and falls down and gets killed after the driver swerves
the bus to the right to overtake a cart, there is not only negligence on the part of the
conductor and on the driver’s part (who ignored the fact that there were passengers on the
roof and tried to overtake a cart) but also contributory negligence on the part of the
passengers (Rural Transport Service v Bezlum Bibi AIR 1980 Cal 165).
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In the last mentioned case, as both the plaintiff and the defendant are equally at fault,
there will be apportionment of liability. Take another case: The plaintiff fettered the forefeet of his donkey and left it in a narrow highway. The defendant was driving his wagon
driven by horses too fast that it negligently ran over and killed the donkey. In spite of his
own negligence the plaintiff was held entitled to recover because the defendant had
sufficient opportunity of avoiding by the use of reasonable care the danger so created by
the plaintiff’s negligence [Davies v Mann (1882) 10 M &W 546].
Thus, we could visualise three situations regarding the liability for negligence. The
ultimate question is: “who caused the accident?” In other words, “whose act was decisive
cause of the accident”?
The three situations are as follows:
(i)
If it were the defendant, the plaintiff can recover in spite of his own negligence
(Davies v Mann).
(ii)
If it were the plaintiff, he cannot recover in spite of the defendant’s negligence
[Butterfield v Forrester (1809) 11 East 60], In that case, the defendant wrongfully
obstructed a highway by putting a pole across it. The plaintiff, who was riding violently
in the twilight on the road collided against the pole and was thrown from his horse and
injured. If the plaintiff had been reasonably careful he could have observed the
obstruction from a distance of 100 yards and thus avoided that accident. It was thus held
that the plaintiff had no cause of action.1
(iii)
If it were both plaintiff and defendant, the plaintiff can recover but there will be
apportionment of liability i.e. the damages will be apportioned as between them
according to the degree of their fault. According to Winfield, where the plaintiffs
negligence was so closely implicated with the defendant’s negligence so as to make it
impossible to determine whose negligence was the decisive cause, the plaintiff cannot
recover.
In Swadling v Cooper (1931) AC 1, it was laid down that where the negligence of the
parties is contemporaneous or so nearly
____________________
1.
Lord Ellenborough, CJ remarked: “One person being at fault will not dispense
with another’s using ordinary care of himself."
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contemporaneous as to make it impossible to say that either could have avoided the
consequences of the other’s negligence, it would be said that the negligence of both
contributed to the accident.
Rules to Determine Contributory Negligence
Whether there is contributory negligence or not has to be determined by the following
rules:
(1)
What the plaintiff’s negligence means - Negligence of the plaintiff in relation to
the defence of contributory negligence does not have the same meaning as is assigned to
it as a tort of negligence. Here plaintiff’s negligence does not mean breach of duty
towards the other party but it means absence of due care on his part about his own safety.
In Bhagwat Swarup v Himalaya Gas Co. (AIR 1985 H.P. 41), the defendant company
sent its deliveryman to deliver the replacement of a gas cylinder to the plaintiff at his
residence. The cap of the cylinder was defective. The deliveryman obtained an axe from
the plaintiff to open the cylinder and hammered the cap with it. The gas leaked from there
and caused fire resulting in the death of the plaintiff’s daughter. It was held that there was
sole negligence of the deliveryman; the mere fact that the plaintiff gave an axe/hammer to
the deliveryman on asking did not imply contributory negligence on the plaintiff’s part
because he was a layman but the deliveryman was a trained person.
(2)
Plaintiff's negligence must be the operative cause of accident - It is not enough to
show that the plaintiff did not take due care of his own safety. It has also to be proved
that it is his lack of care which contributed to the resulting damage. If the defendant’s
negligence would have caused the same damage even if the plaintiff had been careful and
the plaintiff’s negligence is not the operative cause of accident the defence of
contributory negligence cannot be pleaded, viz. the plaintiff is negligent in driving the
motorcycle on the road without proper brakes and the defendant aiming at a bird
negligently shoots and injures the plaintiff [Jones v Livox Quarries Ltd. (1952) 2 QB
608].
Similarly, if the driver of an ‘overloaded’ rickshaw going on the correct side is hit by a
bus coming at a high speed on the wrong side of the
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road, there is no contributory negligence of rickshaw driver even though the rickshaw is
overloaded (Agya Kaur v P.R.T.Corpn. AIR 1980 P&H 183). Here, the fact of
overloading of the rickshaw did not contribute to the occurrence of the accident.
Likewise, the mere fact that the motor cyclist was carrying three persons on the pillion
seat did not lead to the inference of contributory negligence on his part [National Ins. Co.
v Kastoori Devi 1988 ACJ 8 (Raj)].2
However, damages awarded for head injuries to a motor cyclist were reduced by 15% for
not wearing the crash helmet in O’Connel v Jackson (1971)3 All ER 129, and by 10% for
not fastening the helmet property [Copps v Miller (1989) 2 All ER 333 (CA)], and seat
belt to a car driver in Froom v Butcher (1975) 3 All ER 520 CA. The mere refusal of an
injured person to undergo surgery even when advised by medical expert may not amount
to contributory negligence, especially when he was a diabetic patient [Selvanayagam v
University of West Indies (1983)1 All ER 824 PC].3
(3)
Test of prudent man - To be guilty of contributory negligence the plaintiff should
not have acted like a prudent man. If he has taken as much care as a prudent man has
taken in a similar situation, there is no contributory negligence. Thus, merely resting
one’s elbow on a window sill of the bus going on a highway does not amount to
contributory negligence (Sushma Mitra v M.P.S.R.T.Corpn. AIR 1974 M.P.68).
The Court, in that case, observed: it is clear that the plaintiff cannot be held to be guilty
of contributory negligence. It is true that in crowded streets of big towns the passengers,
who are adult, are expected to keep their limbs within carriage... but here we are dealing
with the case
____________________
2.
Similar would also be the position when a cyclist without a lamp on his cycle falls
into a ditch in the darkness, if the ditch is on a public road without a danger signal,
because such a ditch could not be observed by the cyclist even if he had the lamp on his
cycle (Municipal Board, Jaunpur v Brahm Kishore AIR 1978 All 168).
3.
It may be noted that an omission to wear a helmet would not amount to
contributory negligence if the injury suffered by the motorcyclist is not on the head but
on his hand. Similarly if a motorcyclist drives without a driving licence and is run down
by a motor-truck the mere fact that the motorcyclist had no driving licence will not give
rise to a plea of contributory negligence.
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where the plaintiff was injured while the bus was moving on a highway outside the limits
of the town. In such a case even a man of ordinary prudence would rest his elbow on the
window sill and he cannot be expected to foresee any harm to himself in doing so.”
Similarly, merely holding the crossbar of the window of a bus does not amount to
contributory negligence (Mrs. Sydney Victor v Janab S. Kadar Sheriff AIR 1978 Mad
344). In Pepsu R.T.C. v Qimat Rai Jain 1985 ACJ 16(P&H), it was observed that the
“driver of a bus while overtaking or crossing another vehicle must keep in mind the
normal tendency of a passenger sitting near a window to have his arm resting on it and
may be even protruding a little and he must, therefore, take care to leave sufficient space
between his vehicle and the other so that no harm or injury is caused to such passenger.”
(4)
Doctrine of alternative danger4 - Sometimes the plaintiff is permitted to take risk
where some dangerous situation has been created by the defendant and in such a case he
will not be considered to be guilty of contributory negligence. The judgment of the
plaintiff should not, however, be rash. Thus if a passenger in a coach, which is badly
mismanaged, is alarmed and he jumps out of it and is injured, the plaintiff can recover as
his act is reasonable under the circumstances of the case [Jones v Boyce (1816) 1 Stark,
493],
Similarly, when a train overshoots a platform a passenger is justified in taking the risk of
getting down without platform rather than being carried further [Kessojee Issur v
G.I.PRly. (1907) 34 IA 115]. Likewise, when a lady got locked in a public lavatory
because of the defective lock and no attendant outside, and she injured herself while
trying to find a way to climb out, she was entitled to recover [Sayers v Harlow Urban
Dist. Council (1958)2 All ER 342].
A person may sometimes be justified in taking a risk for the safety of others. If a wife is
injured when trying to save his husband from the
____________________
4.
The doctrine of “alternative danger” is the extension of the doctrine of
“contributory negligence". Discuss. [I.A.S.-2007]
“When a plaintiff acts as a reasonable and prudent man, he is entitled to damages even
though he selects the more dangerous alternative when confronted by the defendant’s
negligence.” Discuss. [I.A.S.-2003]
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danger created by the defendant she cannot be met with the defence of contributory
negligence [Brandon v Osbrone, Garret & Co. (1924)1 KB 548].
(5)
Presumption that others are careful/Statutory negligence - Such a presumption
may be raised in many a cases and the plaintiff not guarding against the act of negligence
of the defendant is not liable of contributory negligence in such a case. There are many
circumstances when the plaintiff can take for granted that the defendant will be careful.
In Gee v Metropolitan Rly. Co. (1873) 8 QB 161, the plaintiff (a passenger) lightly
leaned against the door of a carriage not long after the train had left the station. The door
was negligently fastened and the same fell open with the result the passenger fell off the
train. The plaintiff was entitled to recover even though he did not check up that the door
had been properly fastened because he had a right to presume that the railway servants
were not negligent in leaving the door unfastened.
In the case of ‘statutory negligence’, the same having been arisen out of breach of a
statutory obligation, the defence of contributory negligence cannot be availed of by the
wrongdoer (defendant). Thus when a railway crosses a public carriage road, the
authorities owning the railways are under obligation to erect and maintain good and
sufficient gates across the road and must employ proper persons to man the same.
In Union of India v Lalman Badri Prasad (AIR 1954 VP 17) there was collision between
a railway engine and a truck at level crossing resulting in the truck driver’s death. The
driver was without a valid licence; he was held guilty of rash driving and contributory
negligence. But the railway authorities were found negligent in not keeping the level
crossing properly manned or by placing any caution board for the users of the road.
However, in Union of India v Supriya Ghosh (AIR 1973 Pat 129), the plaintiff was not
held guilty of contributory negligence, when he got injured while passing through a level
crossing. At the time of the accident, the gates were opened and the gateman was not
present there. The court observed, “the deceased must have been attentive to the driving
of the car itself and could not have noticed the light of the train and heard its sound. Even
if he noticed the headlight of engine, perhaps he could not assess correctly the distance of
the train and
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finding the gate open must have thought that the train was at considerable distance.”
(6)
Contributory negligence of children5 - What amounts to contributory negligence
in the case of an adult may not be so in the case of a child because a child may not be
able to appreciate and understand certain dangers. In Motias Costa v Roque Augustinho
Jacinto (AIR 1976 Goa 1), a child of about 6 years, while trying to cross a road, for going
to school on the other side of the road, was knocked down by a motor cycle. It was held
that the motor-cyclist could anticipate that the school going children would cross the road
at that point and, therefore, since he failed to drive cautiously he was liable
notwithstanding that the child suddenly came in front of the vehicle.
In Yachuk v Oliver Blias Co. Ltd. (1949) A.C.386, the defendant’s servants sold some
gasoline to two boys aged 7 and 9 years. The boys falsely stated that they needed the
same for their mother’s car. They actually used it for their play and one of them got
injured. The Privy Council found that there was no evidence to show that the infant
plaintiff appreciated the dangerous nature of gasoline and the defendant was held liable in
full for the loss. If, however, a child is capable of appreciating the danger he may be held
guilty of contributory negligence [M. & S.M. Railway Co Ltd. v Jayammal (1924) 48
Mad 417].
(7)
Doctrine of identification (Imputed contributory negligence) - The defence of
contributory negligence can be taken not only when the plaintiff himself has been
negligent but also when there is negligence on the part of his servant/agent. Thus, if I am
taking the service of an independent contractor and he has been negligent, I would be
identified with the independent contractor and met with the defence of contributory
negligence.
The doctrine was expressly overruled in the Bernina Mills v Armstrong (1881)13 A.C. l.
Since an employer does not have control over the independent contractor, it is in fitness
of things that the contributory negligence of the independent contractor is not deemed to
be that of the
____________________
5. Explain the law relating to contributory negligence of children.
[I.A.S.-2000]
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person availing his services. This is more so when a passenger is travelling in a transport
provided by an independent contractor. In Darshani Devi v Sheo Ram 1987 ACJ 931, the
Rajasthan High Court observed that in Indian conditions no passenger can be held liable
for contributory negligence for the omission of the car driver or the truck driver/bus
driver or train driver or a pilot.
In Oliver v Birmingham & Midland Omnibus Co. (1933) 1 KB 35, a four year old child
was crossing the road along with his grandfather. Suddenly the defendant’s omnibus
came there and in panic the grandfather left the child in the middle of the road and
himself jumped off the road. The child got injured; but he was not identified with his
grandfather and in spite of the contributory negligence on the latter’s part the child was
entitled to recover compensation from the defendant.
The Last Opportunity Rule
(How far Contributory Negligence is a defence6)?
At common law contributory negligence was a complete defence, and the negligent
plaintiff could not claim any compensation from the defendant (See Butterfield v
Forrester). That caused a great hardship to the plaintiff because of slight negligence on
his part he may lose his action against the defendant who was more to blame. The courts
modified the rule and introduced the so-called rule of ‘last opportunity’ or ‘last chance.’
The last opportunity rule may be stated as: “When an accident happens through the
combined negligence of two persons, he alone is liable to the other who had the last
opportunity of avoiding the accident by reasonable care”. The rule was applied in Davies
v Mann (1882)10 M&W 546; in that case, the plaintiff fettered the forefeet of his donkey
and left it in a narrow highway. The defendant was driving his wagon too fast and the
donkey was run over and killed. In spite of his own negligence the plaintiff was entitled
to claim compensation because the defendant had the last opportunity to avoid the
accident.
____________________
6.
Explain the common law doctrine of contributory negligence and the illogicality
involved in it that paves the way for its modification.
[I.A.S.91]
[Note: Also see “Theories of Contributory Negligence”, below.]
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If that were not so, said Parke, B, “a man might justify the driving over goods left on the
public highway or even over the man lying asleep there, or purposely running against a
carriage going on the wrong side of the road.” In Radley v L.& N.W.Rly. (1876) AC 759,
the plaintiffs loaded a truck so high that it was obstructed by a bridge owned by them, but
the defendants’ servant (an engine driver) gave momentum to the engine and tried to
make it pass through the bridge without ascertaining the nature of the obstruction. The
bridge was knocked down. In spite of negligence on the plaintiffs’ part in overloading the
truck they were entitled to recover from the defendants because by an ordinary care the
defendants could have averted the mischief.
The rule was further defined in the case of British Columbia Electric Co. v Loach
(1916)1 AC 719, “a defendant, who had not in fact the last opportunity to avoid the
accident, will nevertheless be liable if he would have that opportunity but for his
negligence” (‘Constructive Last Opportunity’). In that case, a wagon-driver negligently
brought the wagon on the level crossing of the defendant’s tramline. A tram, coming too
fast, caused the collision. It was found that the tram was with defective brakes and if the
brakes were in order then, in spite of the negligence on the part of the wagon’s driver, the
tram could have been stopped and accident averted. It was held that the defendants could
not take the defence of contributory negligence because they had the last opportunity to
avoid the accident which they had incapacitated themselves from availing because of
their own negligence.
The rule of last opportunity also was very unsatisfactory because the party whose act of
negligence was earlier, altogether escaped the responsibility and whose negligence was
subsequent was made wholly liable even though the resulting damage was the product of
the negligence of both the parties. The law was changed in England. The Maritime
Conventions Act, 1911 remedied the position in maritime collisions. Subsequently the
Law Reform (Contributory Negligence) Act, 1945 covered all the cases of contributory
negligence. According to these Acts when both parties are negligent and they have
contributed to some damage the damage will be apportioned as between them according
to the degree of their fault. The same is considered to be the position in India as well.
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Position in India - In Union of India v Lalman Badri Prasad (AIR 1954 VP 17), Krishnan,
CJ said: “No doubt there is no corresponding statute (viz. Contributory Negligence Act,
1945 of England) in our country but the basic principle is one of equity, ...It is dangerous
to lay down the rule of all-or-nothing in cases where responsibility is divided and can be
correctly apportioned.” The Kerala Torts (Miscellaneous Provisions) Act, 1976 contains
provisions for apportionment of liability in case of contributory negligence (Sec.8). In
Smt. Indrani Raj Durai v Madras Motor & Gen. Ins. Co. (1996)1 SCALE 563, the
Supreme Court applied the principle of apportionment without adverting to the English
Act.
In India, thus, contributory negligence has been considered as a defence to the extent the
plaintiff is at fault. Thus, if in an accident the plaintiff is as much at fault as the defendant
the compensation to which he would otherwise be entitled will be reduced by 50%. In
Vidya Devi v M.P. State R.T.C. (AIR 1975 M.P.89) a motorcyclist driving negligently
dashed against the bus and died, the bus-driver was also negligent in not keeping a good
look so as to avert a possible collision. It was held that between the motorcyclist and the
bus-driver the blame was in the proportion of two-third and one-third and as such, the
plaintiff (motorcyclist) was entitled to damages to the extent of one-third. In Oriental F.&
G. Ins.Co. v Manjir Kaur (AIR 1981 P&H 60), a scooterist rashly crashed head-on into a
car going on the left side of the road and died. Since there was 100% negligence on the
part of the scooterist, the claim for compensation was dismissed.
According to the Motor Vehicles Act, 1988, a fixed sum of Rs.25,000 in case of death
and a fixed sum of Rs. 12,000 in case of permanent disability, of the accident victim has
to be paid. In such a case the defence of contributory negligence cannot be pleaded.
Does Last Opportunity Rule survive?
The Contributory Negligence Act in England has not specifically abrogated the rule and
the rule is undoubtedly effective in cases where a man knowingly incurs a danger, viz. ‘A
drops a piece of banana peel on the pavement.’ This act is clearly negligent in regard to
all passersby who have not noticed the peel, but it is not negligent in regard to B who
sees the peel but nevertheless steps on it because it amuses him to be so?
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Prof. Goodhart has stated that the rule should ordinarily be confined to cases where one
has actual knowledge of the dangerous situation created by the other party and has the
reasonable opportunity to avoid it. It is subject to limitation that in certain circumstances
it is foreseeable that knowledge of the situation will not neutralise the danger, and that in
such cases the negligence of the person who created the situation will be regarded as
being still effective, viz. where the employer failed in his statutory duty to fence
dangerous machinery he cannot rely on the knowledge of the danger of the workman who
is bound to work nearby.
In Davies v Swan Motor Co. Ltd. (1949)1 All ER 620, an employee of Swansea
Corporation, in contravention of the regulations, was riding on the steps of a dust lorry.
There was a collision when an omnibus tried to overtake the dust lorry, as a result of
which the employee got injured and ultimately died. As the driver of the omnibus had
seen that the employee was on the steps of the lorry before he attempted to pass it, could
it be said that he had last opportunity of avoiding the accident? The Court of Appeal held
that the rule of last opportunity was not applicable in these circumstances. Bucknill, L.J.
said that “it is impossible to say that the dangerous position of the deceased man on the
lorry had ceased to be a factor contributing to the danger he has suffered.” It was held
that though there was negligence on the part of the driver of omnibus, there was also
contributory negligence on the part of the deceased.
In a recent Australian case, March V.E. & M.H. Stramare Pty. Ltd. (1991) 65 ALJ 334, it
was held that “the end result of apportionment legislation is to abolish not only the
defence of contributory negligence but also the last opportunity rule.”
Theories of Contributory Negligence
Various theories have been advanced by jurists as to the ‘basic principle’ of contributory
negligence. Some of the important theories are discussed below:
(1)
Penal theory - Under it, a person who has once been negligent should be punished
severely for his fault and should not be
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permitted to recover damages.7 In pari delict potior est condito defendentis means that
where both parties are equally at fault, the condition of the defendant is the best. But this
theory of punishment did not hold good in very many cases where the plaintiff (as in
Davies v Mann) was able to recover in spite of his own negligence for the decisive cause
of the accident was not his act of negligence but that of the defendant.
(2)
Public policy - In order to induce ‘self-vigilance’ amongst members of the public
and thereby minimise accidents on the highways, courts were inclined to give stress to
this principle of contributory negligence. But in the actual decision of cases, only very
few judges have laid down this as the reason for making a party liable.
(3)
Principle of joint tortfeasors - In actions of contributory negligence, both the
plaintiff and the defendant should be deemed to be joint tortfeasors and as such neither
party should be allowed to recover damages against the other. This is a farfetched theory
for it is obvious that in such cases the parties have not the necessary previous intention to
cause injury to the other which is one of the essential ingredients with regard to the
actions by joint tortfeasors.
(4)
Volenti non fit injuria - The theory of plaintiff’s implied of. express consent to
undergo the injury is sometimes advanced as the probable basic principle of contributory
negligence. But this can not be a true basis for there are essential differences between the
two defences. “The defence of contributory negligence confesses and avoids a prima
facie liability; it excludes the idea of deliberation and relies upon the plaintiff’s failure to
exercise reasonable care. On the defence of volenti non fit injuria, viz. that the plaintiff
has willed to run the risk, none of these statements is true” (Salmond).
____________________
7.
“The rule of law is that if there is blame causing the accident on both sides,
however small that blame may be on one side, the loss lies where it fails" [Cayzer Irvine
& Co. v Carran Co. (1884) 9 AC 873, per Lord Blackburn],
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(5)
Causation - The causation theory seems to be the best one to explain the basic
principle of contributory negligence. In very many cases judges have somewhat loosely
used the expression ‘direct cause’, ‘decisive cause’, ‘real/dominant/efficient/effective
cause’, causa causans or immediate cause, etc. Lord Atkin said (in Caswell v Powell D.
Collieries 1940 AC 165): “I find it impossible to divorce any theory of contributory
negligence from the concept of causation. It is negligence which ‘contributes to cause’
the injury. And whether you ask whose negligence was responsible for the injury or from
whose negligence did the injury resulted, you must in the ultimate analysis be asking who
caused the injury. The question for the court to determine is not “whose fault was it?” but
“who caused it8?”
Although the causation theory is considered the most satisfactory basis of the rule of
contributory negligence, even that is not to be always applied to its logical extent. Thus,
if A travelling in B’s bus suffers injury in collision between B’s bus with C’s bus on
account of negligence of C (which was decisive cause of the accident) and contributory
negligence of B; A can sue C as well as B, and B’s contention that his act was not the
decisive cause of the accident will not be of avail against A. Perhaps in the light of these
circumstances the remark by Salmond that the true basis of the rule seems to be not logic
but a rough public policy, seems to be justifiable.
COMPOSITE NEGLIGENCE
When the negligence of two or more persons result in the same damage to a third person
there is said to be ‘composite negligence’, and the persons responsible are known as
‘composite tort-feasors’. In England there are two types of composite tort-feasors, i.e.
joint tort-feasors and independent tort-feasors, the liability of them being different. In
India,
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8.
"The question, as in all questions of liability for a tortious act, is not, who had the
last opportunity of avoiding the mischief, but whose act caused the wrong” [Boy
Andrews v St. Roguvald (1947) 2 All ER 350].
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such distinction is not very much relevant and so far as their liability is concerned, the
term “composite negligence” is used to cover the negligence of tort-feasors, whether they
are joint or independent.
The liability of composite tortfeasors is joint and several. No tortfeasor is allowed to say
that the decree against him should be only to the extent of his fault. In other words, a
composite tortfeasor cannot plead that there should be apportionment of damages
between various tortfeasors. The judgment against the composite tortfeasors is for a
single sum, and the plaintiff can enforce the whole of his claim against any one of the
defendants, if he so chooses. It is no concern of his whether there is any duty of
indemnity or contribution as between the negligent persons. The defendant, who has paid
more than his share of liability may claim compensation from the other defendants.
The High Courts of Madhya Pradesh, Madras, Mysore, Punjab & Haryana, Orissa,
Gujarat, Rajasthan, Guwahati and Karnataka have expressed in favour of nonapportionment of damages between various composite tortfeasors. In Karnataka State
R.T.C. v Krishnan (AIR 1981 Kant 11), two passenger buses brushed each other in such a
way that the left hands of two passengers travelling in one of these buses were cut off. It
was held that both the drivers are jointly and severally liable to pay the compensation.
In Satbir Singh v Balwant Singh 1987 ACJ 1096(P&H), there was collision between a
motor cycle and a truck coming from the opposite direction, resulting in the death of the
pillion rider and injuries to the motor cyclist. It was held that as between the motor cyclist
and the truck driver the negligence was 2/3rd and 1/3rd i.e. there was contributory
negligence on the part of the motor cyclist to the extent of 2/3rd. So far as the pillion
rider is concerned, there was no contributory negligence on his part and there was
composite negligence against him on the part of the motor cyclist and the truck driver.
The widow of the pillion rider was held to be entitled to claim the whole of the amount
from the truck owner. Then the truck owner could bring appropriate proceedings against
the motor cyclist to claim the amount from him to the extent of his liability.
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The court may sometimes apportion damages between various tortfeasors only for the
purpose of their respective liability inter se. It may also, in a case of composite
negligence, reduce the damages payable on account of contributory negligence. In
Amthiben v S.G., ONGC 1976 ACJ 72 (Guj), due to negligence of the driver of a jeep
and the driver of a bus there was an accident, and the passenger sitting on the front seat of
the jeep was thrown out and killed. There was found to be negligence of the driver of the
truck and the jeep in the ratio of 75:25 respectively. A decree for the full amount was
passed against the defendants making them jointly and severally liable. The
apportionment of damages in this case was held to be only for the purpose of working out
the respective liability of the defendants inter se. The deceased was found to be guilty of
contributory negligence in so far as he had travelled in the jeep, wherein there were three
persons on the front side while the capacity of the seat was for two only. His contributory
negligence was found to be to the extent of 8 to 10% and therefore, the damages payable
calculated at Rs. 99,000 were reduced to Rs.90,000.
Distinction between Composite and Contributory Negligence
In case of ‘contributory negligence’ there is negligence on the part of the defendant as
well as the plaintiff. Plaintiff’s own negligence contributes to the harm which he has
suffered. In the case of ‘composite negligence’ there is negligence of two or more
persons towards the plaintiff, and the plaintiff himself is not to be blamed. While
contributory negligence is a defence available to the defendant to overcome or reduce his
liability in relation to the plaintiff, the composite negligence is not a defence.
In case of ‘contributory negligence’ there is apportionment of damages according to the
fault of the plaintiff and the defendant. Plaintiff’s claim is reduced to the extent he
himself is at fault. In case of ‘composite negligence’ there is no apportionment of
damages between various tortfeasors. There is a decree for the whole amount creating
joint and several liability of all the defendants. If, however, one tortfeasor is made to pay
more than his share of the damages, he can claim compensation from the other
tortfeasors.
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JOINT TORTFEASORS9
All persons who aid, or counsel, or direct or join in the commit-tal of a wrongful act, are
joint tortfeasors. Thus when two or more persons commit a tort acting in the furtherance
of a common design, they are known as ‘joint tort feasors’. They are to be distinguished
from ‘independent tortfeasors’ who act indepen-dently of each other but concur to
produce a single damage. The distinction between the two lies in the fact that in the case
of joint tort feasors there is concurrence not only in the ultimate consequences but also
mental concurrence in doing the act, while in the case of independent tortfeasors there is
merely a concur-rence in the ultimate result of the wrongful act independently done.
For example, two motorists driving negligently and coming from the opposite direction
collide and a pedestrian is crushed bet-ween the two cars, these motorists are independent
tortfeasors. In Brook v Bool (1928) 2 KB 578, A and B entered Z’s premises to search for
an escape of gas. Each one of them, in turn applied naked light to the gas pipe. A’s
application resulted in an explosion, causing damage to Z’s premises. In this case, even
though the act of A alone had caused the explosion but both A and B were considered to
be joint tortfeasors and thus liable for the damage.10 The common examples of joint
tortfeasors are: principal and agent, master and servant, and partners (vicarious liability).
Therefore, persons are not joint tortfeasors merely because their independent wrongful
acts have resulted in one damnum. To consti-tute a joint liability the act complained of
must be joint and not separate. While the liability of the joint tortfeasors is joint and
several, the liability of the independent tortfeasors is not joint but only ‘several’ and
therefore,
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9.
The liability of joint tortfeasors is ‘joint and several’. In the light of this statement
discuss who are joint tortfeasors and their liability with the help of illustrations and case
law. [I.A.S.-2005]
10.
“Sometimes common design may be imputed to persons who are in control of
animals, if their animals happen to exhibit such an instinct. For example, if my dog or
yours jointly worry X’s sheep, both of us will be deemed to be joint tortfeasors even
though none of us had in fact the design to cause injury to X’s sheep" (Winfield).
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there were as many causes of action as the number of tortfeasors. Further, since they were
severally liable an action against one of them was no bar to an action against the other,
and a release of one of them does not result in the release of others.
The courts in India have not necessarily followed the distinction between joint and
independent tortfeasors, as recognized in England. When two or more persons are
responsible for a common damage (whether acting independently or jointly), they have
been termed as composite tortfeasors [See under ‘Composite Negli-gence’, supra].11 In a
suit for composite negligence, the plain-tiff is not bound to a strict analysis of the
proximate or imme-diate cause of the event to find out whom he can sue. Subject to the
rules as to remoteness of damage, he is entitled to sue all or any of the negligent persons.
Liability of Joint Tortfeasors
In connection with the liability for a joint act, the following principles should be noted:
(1)
Joint tortfeasors are jointly and severally liable - An action may be brought
against anyone, any number, or all of them. If an action is brought against some of them
only, it is considered in common law that a further action could not be brought against
others because there was only one cause of action. However, this rule has been abolished
by the Law Reform (Married Women and Tortfeasors) Act, 1935 and an action against
one or some of the joint tortfeasors is no bar to an action against the other tort-feasors,
who would also have been liable for the same damage. A judgment obtained against all of
them may be executed in full against anyone or more of them.
The object of the above stated provision is to avoid hardship to the plaintiff who could
not recover the amount of the decree because the joint tortfeasor sued was found
insolvent. It may be noted that those
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11.
A generic name applicable to both joint and independent tortfeasors is suggested
by Glanville Williams, viz. “Concurrent tortfeasors” i.e. those whose torts concur (run
together) to produce the same damage. Where in the Shakespearean phrase, villainy is
taught by A and executed by B, the parties are clearly joint tortfeasors.
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who are sued cannot insist on having the others joined as defendants. The mere omission
to sue some of them will not disentitle the plaintiff from claiming full relief against those
who are sued [Subbayya v Verayya (1935) MWN 1043]. The fact that the claim is barred
by limitation as against one will not in itself free the others from liability [Harihar
Pershad v Bholi Pershad (1907)6 CLJ 383].
(2)
Release of one of the joint tortfeasors releases all others as well - The reason
being that the cause of action, which is one and indivisible, having been released, all
persons otherwise liable therefore are consequently released. This well-established rule of
English law has not been affected by the Law Reform Act, 1935. Although the release of
one of the joint tortfeasors releases others from liability, a mere covenant or agreement
not to sue one of them does not have the same effect. Because such an agree-ment (or
compromise) merely prevents the cause of action from being enforced against the
particular wrong-doer with whom it is entered into.
Thus, the acceptance of a sum of money from one of the joint tortfeasors in full discharge
of his own personal liability does not operate as a release as far as the other joint
tortfeasors are concerned as there is no full satisfaction of the claim. In Khusro v N.A.
Guzder (AIR 1970 SC 1468), the plaintiffs filed a suit against various defendants for
defamation. Meanwhile one of the defendants tendered an unconditional apology to the
plain-tiffs. The plaintiffs accepted the apology and a decree was passed accordingly. The
other defendants contended that the release of one of the joint tortfeasors extinguished the
plainti-ff’s right to sue the remaining defendants and claim damages from them. It was
held that this compromise could not be treated to be a full satisfaction for the tort alleged
to have been committed by the defendants and therefore, the other tortfeasors had not
been released by the compromise.
(3)
Liability of the innocent joint tortfeasor - If, through no fault of his own, a person
gets mixed up in the tortious acts of the others so as to facilitate their wrongdoing, he
may incur no personal liabilitybut he comes under a duty to assist the person who has
been wronged by giving him full information and disclos-ing the identity of the wrongdoers [Norwich Pharmacal Co. v Customs & Excise Commrs. (1973) 2 All ER 943
(HL)].
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Thus, a journalist, who receives information damaging to the interests of the plaintiff for
publication from a person who has tortiously obtained them, can be directed to disclose
the source in the interests of justice so that the plaintiff may sue the wrong-doer and take
preventive action to protect himself in future [X Ltd. v Morgan Grampian (Publishers)
Ltd. (1990)2 All ER 1(HL)].
(4)
Rights of tortfeasors inter-se contribution and indemnity - At common law no
action for contribution was maintainable by one wrong-doer against another, although the
one who sought contribu-tion might have been compelled to satisfy the full damages.
This is known as the rule in Merryweather v Nixan (1799 8 TR 186. The reason alleged
for this rule was that any such claim to contribu-tion must be based on an implied
contract between the tortfea-sors, and that such a contract was illegal as being made with
a view to commit an illegal act.
The rule, however, has been abrogated by the Law Reform act, 1935, according to which
if one of the joint tortfeasors has been made to pay more than his share of damages he can
demand contri-bution in respect of the same from the other wrong-doers. The
contribution can, however, be demanded only from that tortfeasor who is ‘liable’ in
respect of the plaintiff’s damage. The amount of contribution recoverable from any
person shall be just and equitable having regard to the extent of his responsibility for the
damage (apportionment of liability)- The court can exempt any person from liability to
make contribution [Civil Liability (Contribution) Act, 1978].
There may be situations where the joint tortfeasor, who has been made to pay for the
whole of the loss, may not be guilty at all and some other joint tortfeasor may be solely to
blame for the wrongful act. In such a case the guilty tortfeasor must fully compensate that
one who has actually paid compensation, or in other words, one joint tortfeasr must
indemnify the other.12 The right of indemnity cannot be claimed by a person who
knowingly does or authorises the doing of an unlawful act [W.H. Smith & Son v Clinton
& Harris (1908) 99 LT 8401.
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12.
Thus an innocent master can claim complete contribution from his servant whose
negligent act had made the master vicariously liable to the injured party.
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The rule laid down in Merryweather case is not applicable in India. The Allahabad High
Court is of the view that the rule is devoid of the basic principle of equity that there
should be an equality of burden and benefit [Dharni Dhar v Chandra Shekhar AIR 1951
All 774], But where the doer of the act knew or is presumed to have known that the act he
committed was unlawful, there is neither equity nor reason nor justice that he should be
entitled to claim contribution from the other tortfeasors [M/s. Dedha & Co. v M/s.
Paulson Medical Stores AIR 1988 Ker 233 ]. Express promise of indemnity is void in
such cases.
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11
Trespass to Person and Property
Trespass, in its widest sense, signifies any transgression or offence against the law of
nature, of society, or of the country, whether relating to a man’s person or to his property.
But the most obvious acts of trespass are:
(1)
Trespass viet armis or Trespass to Person.
(2)
Trespass quare clausum fergit or Trespass to Land.
(3)
Tresspass de bonis asportatis or Trespass to Goods or Chattels.
[1]
TRESPASS TO PERSON
The principle of ‘trespass’ was that any direct invasion of a protected interest from a
positive act was actionable subject to justification. If the invasion was indirect though
foreseeable or if the invasion was from an omission as distinguished from a positive act,
there could be no liability in trespass. Recent development has led to further limitation: If
the invasion is unintended, though direct and resulting from a positive act, there will still
be no liability if the defendant’s conduct was reasonable, or even if it was unreasonable,
if the invasion was an unforeseeable consequence [Fowler v Lanning (1957)1 QB 426],
Further it was held that when the injury is not inflicted intentionally but negligently, the
only cause of action is negligence and not trespass. Thus only “intended invasions” come
under trespass [Letang v Cooper
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Trespass to Person & Property
(1965)1 QB 232], In that case, the plaintiff while she was sunbathing was run over by a
car driven negligently by the defendant causing injury to her legs. An action for trespass
was not allowed by the court.
The three chief forms of Intentional Trespass are: Assault, Battery and False
Imprisonment. There are two important rules of trespass: (i) That it is for the defendant to
plead and prove justification and not for the plaintiff to show that the defendant’s conduct
was unreasonable; and (ii) that damage is not an essential element and need not be proved
by the plaintiff. The importance of trespass lies in that it can be used for the. protection of
one’s liberty and vindication of constitutional rights. “Trespass trips up the zealous
bureaucrat, the eager policeman and the officious citizen”.
(a)
Battery
A ‘battery’ is “intentional and direct application of force to another person without any
lawful justification”. Use of force, however, trivial, is enough; physical hurt need not be
there. Least touching of another in anger is a battery (Cole v Turner 87 ER 907). Battery
requires actual contact (may be indirect) with the body of another person so a seizing and
laying hold of a person so as to restrain him, spitting in the face, throwing over a chair or
carriage in which another person is sitting, throwing water over a person, taking a person
by the collar, causing another to be medically examined against his or her will; are all
held to amount to battery.
The force may be used through any object like stick, bullet, or any other missile.
Infliction of heat, light, electricity, gas, odour, etc. would probably be battery if it can
result in physical injury or personal discomfort (Winfield). Mere passive obstruction, like
a door/wall, however, cannot be considered as the use of force [In Innes v Wylie (1844)1
C & K 257, a policeman unlawfully prevented the plaintiff from entering the club
premises]. Where the plaintiff, who had purchased a ticket for a seat at a cinema show,
was forcibly turned out of his seat by the direction of the manager, who was acting under
a mistaken belief that the plaintiff had not paid for his seat, it was held that plaintiff was
entitled to recover damages for battery and assault [Hurst v Picture Theatres Ltd. (1915)
1 KB1]. If the plaintiff had been without ticket, the use of force would be justified.
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An unwanted kiss will be battery. Where a person pushed aside another to get in front, it
may amount to battery [Ashton v Jennings (1674) 2 Lev 133]. However, touching a
person in a friendly manner or calling his attention to something is not battery [Coward v
Baddeley (1859)4 HCN 478]. Putting handcuffs to an undertrial prisoner and then
chaining him like a dangerous animal is an unjustifiable use of force [P. Kader v K.A.
Alagarswami AIR 1965 Mad 438].
Force when justified - Harm voluntarily suffered is no battery (volenti fit injuria is a
complete defence). The use of force may also be justified in pulling a drowning man out
of water or forcibly feeding a hunger- striking person to save his life [Leigh v Gladstone
(1909) 26 TLR 139]. Harm which is unintentional or caused by pure accident is also not
actionable. Thus, where A fired at a pheasant but the pellet accidentally wounded a
person, A is not liable for battery unless the A’s act is wilful or negligent.
Use of force to oust a trespasser from certain premises is perfectly justified. However,
only reasonable force can be used against a trespasser. Use of excessive force (viz. fixing
naked live electric wire without due warning) will make a person liable. A trespasser is
liable to an action for the injury which he does, but he does not forfeit his right of action
for an injury sustained.
(b)
Assault
Assault is an act of the defendant which causes to the plaintiff reasonable apprehension of
the infliction of battery on him by the defendant (Winfield). An assault is an attempt or a
threat to do a corporeal hurt to another, coupled with an apparent present ability and
intention to do the act. The menacing attitude and hostile purpose go to make the assault
unlawful; the actual contact is not necessary in an assault. The word ‘assault’ is
incorrectly used by laymen as meaning the actual infliction of force by one person on
another such as when A beats B. Thus ‘popular assault begins when legal assault ends’.
The wrong consists in an attempt to do the harm rather than the harm being caused
thereby. Pointing a loaded pistol at another is an assault. If the pistol is not loaded then
even it may be an assault, if pointed at such a distance that, if loaded, it may cause injury
(R. v S. George 9 C & P 483). The test is whether an apprehension has been
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created in the plaintiff's mind that battery is going to be committed against him. If the
plaintiff knows that the pistol is unloaded there is no assault.
It is also essential that there should be prima facie ability to do the harm or in other
words, there must be the means to carry the threat into effect. If the fist or the cane is
shown from such a distance that the threat cannot be executed, there is no assault.
Similarly, mere verbal threat is no assault unless it creates reasonable apprehension in the
plaintiff’s mind that immediate force will also be used. Where A laid his hand on his
sword, and said to Z, “if it were not assize time I would not take such language from
you”, this was held not to be an assault, on the ground that the words showed that A did
not intend then and there to offer violence to Z, or not ‘about to use criminal force’ to Z
[Tuberville v Savadge (1699) 1 Mod 3],
Interception of a blow aimed at the plaintiff by a third person will not absolve the
defendant from liability. It was so held in Stephens v Myers (1830) 4 C & P 349. The
plaintiff was in the chair at a parish meeting. The defendant who sat seven places away
on the same table proved unruly, whereupon a resolution to eject him was passed. Then
the defendant said that he would rather pull the plaintiff out of the chair, he moved
towards the chair with clenched fists upon the plaintiff but he was stopped. The defendant
was held liable for assault.
In contrast, in Bavisetti Venkata Surya Roa v Nandipati Muttayya (AIR 1964 AP 382),
the defendant who was a village Munsiff threatened to distain the ear-rings which the
plaintiff was wearing for recovery of land revenue. The village goldsmith was called on
at which someone paid the land-revenue on behalf of the plaintiff and the defendant left
quietly. As the defendant said nothing after arrival of goldsmith, it was held that it could
not be said that the plaintiff was put in fear of immediate or instant violence and,
therefore, the defendant could not be made liable for assault.
If the defendant intended to assault, in other words, if he had the capacity to understand
the nature of his act, and he struck the plaintiff, he would be liable for assault and battery
even if he did not know, because of mental disease, that what he was doing was wrong.
But if the mental disease is so severe that the defendant’s act of striking the plaintiff was
not a voluntary act at all, he would not be liable [Morris v Marsden (1952)1 All ER 925],
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Distinction between Assault and Battery
In assault, actual contact or infliction of force is not necessary though it is in a battery.
Generally assault precedes battery. Showing a clenched fist is an assault but actual
striking amounts to battery. Throwing water upon a person is an assault but as soon as the
water falls on him it becomes battery. If the person is about to sit on a chair and the chair
is pulled, there is assault so long as he is in the process of falling on the ground but as
soon as his body touches the floor, it will be battery.1
It is, however, not necessary that every battery should include assault. A blow from
behind, without the prior knowledge of the person hit, results in a battery without being
preceded by an assault. It may be noted that besides a civil action for an assault and
battery, the criminal proceedings may also be taken against the wrong-doer. Assault is
defined in the Indian Penal Code, Sec.351; while battery is equivalent to criminal force
which is defined in Sec.350, IPC.
(c)
False Imprisonment
False imprisonment consists in the imposition of a total restraint for some period,
however short, upon the liberty of another, without sufficient lawful justification. “Every
restraint of the liberty of one person by another is in law an imprisonment and, if imposed
without lawful cause, constitutes a false imprisonment which is both a criminal offence
and an actionable tort” (Ram Pyare Lal v Om Prakash 1977 Cr LJ 1984).
To constitute this wrong ‘imprisonment’ in the ordinary sense is not required, as a person
may be falsely imprisoned, viz. by being confined within the four walls or by being
prevented from leaving the place where he is (that may be his own house or an open field
or a bus/train).
____________________
1.
Distinguish the wrong committed in the following :
(i)
The defendant told the plaintiff to leave the premises in occupation of the
plaintiff. When the plaintiff refused, the defendant collected some of his workmen who
mustered round the plaintiff, tucking up their sleeves and aprons and threatened to break
the plaintiffs neck if he did not leave. The plaintiff then left the place.
(ii)
A takes B by the collar and pushes him down the hill.
[I.A.S. -98]
[Note: The first example is an illustration of assault, while the second of battery.]
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The detention of the person may be either (a) actual, i.e. physical (laying hands upon a
person), or (b) constructive, i.e. by mere show of authority (an officer telling any one that
he is wanted and making him accompany).
The essentials required to constitute this wrong are: total restraint on the liberty of a
person, and, it should be without any lawful justification.
Total Restraint
Under criminal law whether the restraint is total (‘wrongful confinement’, Sec. 340, IPC)
or partial (‘wrongful restraint’, Sec.339, IPC), the same is actionable. A partial restraint is
not actionable under the civil law.2 Thus when a man is prevented from going to a
particular direction but is free to go to any other direction or to go back, there is no false
imprisonment. In Bird v Jones (1845) 7 QB 742, the plaintiff was not allowed by the
defendants to cross a bridge through footway but he was free to cross the same through
the carriage way. Since the restraint was not total there was held to be no false
imprisonment.
The court, in the aforesaid case, observed: “A prison may have its boundary large or
narrow, visible or tangible, or, though real, still in the conception only; it may itself be
moveable or fixed: but a boundary it must have; and that boundary the party must be
prevented from passing; he must be prevented from leaving that place, within the ambit
of which the party imprisoning would confine him, except by prison breach. Some
confusion seems to arise from confounding imprisonment of the
____________________
2.
How do you distinguish between wrongful imprisonment and wrongful restraint?
Explain with illustrations.
[I.A.S.-98]
The Municipality permitted a political party to hold a meeting in a public park blocking a
busy road. X wanted to go to Y’s house crossing the road but was not allowed. There was
no other way to go to Y’s house. What wrong has been committed in this incident?
Explain.
[I.A.S.-2002]
[Note: When the restraint is total and a person is prevented from going out of certain
circumscribed limits, it is ‘wrongful confinement’; when the restraint is not total but it is
only partial and a person is prevented merely from going to a particular direction it is
‘wrongful restraint'].
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body with mere loss of freedom...; imprisonment is something more than the mere loss of
this power, it includes the notion of restraint within some limits defined by a will or
power exterior to our own.”
The total restraint results in false imprisonment, however, short its duration may be, viz. a
few minutes [Mee v Cruikshank (1902) 86 LT 708], If there are ‘means of escape’ the
restraint cannot be termed as total. Means, however, must be such which are intelligible
to the person detained, and should not be risky. When a person is not himself restrained
or confined but the liberty of going in the conveyance to which he wishes to go or of
taking the article which he wishes to carry and without which he is not willing to proceed
is denied to him, there cannot be said to be a false imprisonment [Maharani of Nabha v
Province of Madras ILR (1942) Mad 696].
Knowledge of a person that he has been imprisoned is not required and a person may be
imprisoned without his knowing it, e.g. while he is asleep, drunk, or unconscious. In
Herring v Boyle (1834) 91 Cr.M & R377, it was held that there was no liability for false
imprisonment when a student was improperly detained by the school-master during
holidays in the school (because his parents had not paid the fees) for the student did not
know of the restraint. But in Merring v Grahame White Aviation Co. (1920) 121 LT 44,
it was held otherwise. In that case, an employee suspected of having stolen the
company’s property was called to the company’s office and was asked to stay in the
waiting room, one or two employees remained outside the room. It was held that the
plaintiff’s detention by the company’s officers before the police had arrived was
wrongful and amounted to false imprisonment. The fact that, while the plaintiff was in
the waiting room, he did not have the feeling of his being wrongfully detained, did not
make much difference.
Street is of the opinion that the knowledge of confinement ought to be required, because
the interest protected seems a mental one, as an assault. Meering’s case has been
criticised by Goodhart but is supported by Proser. In a recent case, Meering’s case has
been approved and the correctness of Herring's case doubted [Murray v Minister of
Defence (1988) 2 All ER 521(HL)]. In that case it has been held that false imprisonment
is actionable without proof of special damage and
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so it is not necessary for a person unlawfully detained to prove that he knew that he was
being detained3 or that he was harmed by his detention.
Unlawful Detention
For false imprisonment the detention should be without any lawful justification. Making
a false complaint to the police by the defendants leading to the arrest of the plaintiffs, if
without any justification, will make the defendants liable for false imprisonment
(Garikipati v Araza Biksham AIR 1980 A.P. 31). A person may be liable for false
imprisonment not only when he directly arrests/detains the plaintiff, but also when he was
“active in promoting or causing” the arrest or detention.
If a police officer orders an arrest without having such a power he is responsible for the
same. Further, the existence of a “reasonable suspicion” that the person to be arrested is
concerned in any cognizable offence is the minimum requirement before an arrest can be
made by a police officer. Reasonable suspicion must exist at the time of arrest. If it arises
subsequent to the arrest as a result of questioning the accused, the arrest and detention till
that stage would be invalid giving rise to a claim for false imprisonment for that period
[Shabban Bin Hussain v Chong Fook Kam (1969) 3 All ER 1626(PC)].
Reasonable and honest belief in the existence of certain circumstances which, if true,
would justify the arrest was held to be a good defence for false imprisonment in certain
cases. But it is always a matter for the judge to decide whether there were grounds for
reasonable belief on the part of the defendant for an arrest [Joginder Kumar v State of
U.P. JT (1994) (3) SC 243], It may be noted that a policemen who arrested a person
should disclose to him the reason for the arrest. Otherwise he will be liable for false
imprisonment.
A person who is lawfully arrested and detained in a prison or a convict who is lawfully
committed to prison can sue for false imprisonment if he is held under physical
conditions so intolerable that
____________________
3.
Examine the tortious liability of A in the following: A pretends to lock the
plaintiff in a room by purporting to turn the key of the door from outside and taking it
away. The fact is that the door, though shut, is not locked. The plaintiff remains in the
room for two hours under the belief that he has been locked inside.
[I.A.S.-96]
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his detention becomes illegal. Bad faith is not necessary to be proved [Middleweek v
Chief Constable of the Merseyside Police (1990) 3 All ER 662(CA)]. When an undertrial
prisoner suffered prolonged detention in prison even after his acquittal by the court, he
was held entitled to compensation against the State [Rudal Shah v State of Bihar AIR
1983 SC 1086]. Similarly when a prisoner’s jail sentence is over, his detention thereafter
will result in false imprisonment.
A person arrested by the orders of a judicial officer cannot sue the judicial officer for
false imprisonment, unless the judicial officer acts recklessly, illegally or maliciously, i.e.
cannot be said to be acting judicially [Anwar Hussain v Ajoy Kumar AIR 1965 SC 1651].
A person detained by a private individual must be quickly handed over to the police,
otherwise it will amount to false imprisonment.
When detention is justified - If a man entered certain premises subject to certain
reasonable conditions it is no wrong to prevent him from leaving those premises until and
unless those conditions are fulfilled. Thus not allowing a person to go until he pays
reasonable charges is no false imprisonment. In Robinson v Balmain New Ferry Co. Ltd.
(1910) AC 295, the plaintiff entered the defendant’s wharf with an idea to cross the river
by one of the defendant’s ferry boats. Finding that no boat was available for another 20
minutes, he wanted to go out of the wharf. The plaintiff had paid a penny for entry but
refused to pay another, which was chargeable for exit. The defendants disallowed him to
leave the wharf. Held that the defendants were not liable as the charges were reasonable.
Similarly, when there is volenti non fit injuria on the part of the plaintiff, the defendant
cannot be made liable. Thus, a miner going into coal mine by his own consent cannot sue
for false imprisonment if he himself wrongfully stops the work and wants to be taken out
before the usual time [Herd v Weardale Steel, Coal & Coke Co. Ltd. (1915) AC 67].
Law permits the arrest of a person when he has committed some offence. Such arrest may
be made by a magistrate, a police officer or a private individual according to the
circumstances (as discussed above). In John Lewis & Co. v Times (1952) 1 All ER 1203,
the plaintiff and her daughter went to a shop, where the daughter committed theft. Both
of them were detained in the office and were told to wait for managing director’s
decision, where they remained for an hour. He decided to
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hand over them to the police. On trial the daughter was found guilty of theft, but the
charge against the mother was dropped. The mother sued for false imprisonment. The
defendants were held not liable, in as much as she was not detained beyond a reasonable
time for the managing director to make the decision.4
Remedies: Trespass to Person
(i)
Action for damages - The plaintiff is entitled to recover by way of general
damages compensation for the indignity or suffering which the trespass has caused.
Damages should be commensurate with the injury and annoyance caused even though
there has been no serious personal injury. Damages will vary according to the
circumstances of each case. But generally they should be exemplary where the plaintiff’s
complaint is oppressive, arbitrary and unconstitutional action by the State or its servants.
In case of false imprisonment, compensation may be claimed not only for injury to the
liberty but also for disgrace, mental suffering, and humiliation caused thereby.
In an action for trespass the burden to prove justification is on the defendant. Thus in case
of false imprisonment, the plaintiff is only required to prove that he was imprisoned by
the defendant or his servants. It is then for the defendant to prove the lawful justification
for the same and it is not for the plaintiff to prove its absence. It is not necessary for the
plaintiff to prove any wrongful intention, malice, negligence, etc. on the defendant’s part.
(ii)
Self-help - A person is authorised to use reasonable force in order to have an
escape from detention instead of waiting for a legal action.
(iii)
Habeas Corpus - It is a speedier remedy for procuring the release of a person
wrongfully detained (Arts. 32/226 of the Constitution). By this writ the person detaining
is required to
____________________
4.
A customer was suspected of having committed a theft in the departmental store
by the staff. She was detained by the Manager for two days in a Storeroom. What wrong
has been committed in this incident? Explain. [I.A.S.-2002]
[Note: There is unlawful detention and, thus, false imprisonment in this case.]
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produce the detained person before the court and justify the detention. If the court finds
that the detention is without any just or reasonable ground, it will order the immediate
release of the person detained. If such a person has been released before the writ is
disposed of, the court may grant compensation as ancillary relief in such cases.
[2]
TRESPASS TO LAND
Trespass to land means “interference with the possession of land without justification.”
Trespass is actionable per se and the plaintiff need not prove any damage for an action of
trespass. To constitute the wrong of trespass neither force, nor unlawful intention, nor
actual damage is necessary. “Every invasion of a private property, be it even so minute, is
a trespass”. Trespass may be committed (1) by entering upon the land of plaintiff, or (2)
by remaining there, or (3) by doing an act affecting the sole possession of the plaintiff, in
each case without justification.5
Trespass could be committed either by a person himself entering the land of another
person or doing the same through some material object e.g. throwing of stones on another
person’s land, driving nails into the wall, placing ladder against the wall, allowing the
diffusion of gas or invisible fumes, leaving debris upon the roof, allowing cattle to stray
on another person’s land. It is, however, no trespass when there is no interference with
the possession and the defendant has been merely deprived of certain facilities like gas
and electricity.
‘Trespass’ is different from ‘nuisance’. In trespass the interference with the possession is
direct and through some tangible object. In nuisance, the interference is not direct but
consequential and there is impairment of the enjoyment of property. To throw stones
upon one’s neighbour’s premises is a wrong of trespass, but to allow stones from a
ruinous chimney to fall upon those premises is the wrong of nuisance.
____________________
5.
“If the defendant places a part of his foot in the plaintiffs land unlawfully, it is in
law as much a trespass as if he had walked half a mile on it.” [Ellis v Loftus Iron Co.
(1874) LR 10 CP 10],
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Similarly, planting a tree on another’s land is a trespass but if a person plants a tree over
his land and its roots and branches escape on the land of the neighbour that will be a
nuisance. Trespass is actionable per se while nuisance is actionable only on proof of
damage.
Going beyond the purpose for which the person has entered certain premises amounts to
trespass [Perera v Vandiyar (1953) 1 WLR 672], Thus, if a person who is allowed to sit
in a drawing room, enters the bed room without justification, the entry into bedroom is a
trespass. When there is justification to enter the premises of another person it is no
trespass, viz. the car-parking by the tenant into the landlord’s compound without his
permission; the tenant of a multi-storeyed building has a right to so use the compound
without causing any inconvenience to anybody [Madhav V. Kudwa v Madhavdas
Vallabhdas AIR 1979 Bom 49].
A man is not liable for trespass committed involuntarily (e.g. when he is thrown upon the
land by someone else), but he is liable if the entry is intentional, even though made under
a mistake, e.g. if in moving in his own land, a man inadvertently allows his blade to cut
through into his neighbour’s field, he is guilty of a trespass [Basely v Clarkson (1682)3
Lev 37], Notwithstanding the decisions in Letang v Cooper and Fowler v Lanning (See
above), it is still the law that an entry upon another’s land constitutes trespass to land
whether or not the entrant knows that he is trespassing6 [Joliffe v Willmett & Co. (1971)
1 All ER 478]. If the defendant consciously enters upon a land believing it to be his own
but which turns out to be of the plaintiff, he is liable for trespass. The defendant may
successfully plead inevitable accident in his defence [Holmes v Mather (1875) R 10 Ex
261],
Trespass is a wrong against possession rather than ownership. Therefore, a person in
actual possession can bring an action even though, against the true owner, his possession
was wrongful. An owner of land who neither has possession nor any immediate right to
possess it, cannot bring an action for trespass [Baxter v Taylor (1832) 4 B &
_________________
6.
Trespass in civil law differs from that in criminal law on this point. According to
Sec.441, IPC the offence of Criminal Trespass consists in entering or remaining on the
land of another person with intent to commit an offence or intimidate, insult or annoy any
person in possession of such property.
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Ad 72]. A reversioner may, however, sue if by the trespass injury of some permanent
nature, which will affect his reversionary interest, is likely to result.
Trespass ab initio
When a person enters certain premises under the authority of some law and after having
entered there abuses that authority by committing some wrongful act there, he will be
considered to be a trespasser ab initio to that property. Even though he had originally
lawfully entered there the law considers him to be a trespasser from the very beginning
and presumes that he had gone there with that wrongful purpose in mind.
It is necessary that the person to be made liable as trespasser ab initio must do some
positive wrongful act (misfeasance) rather than a mere omission to do his duty (nonfeasance). Thus, refusing to pay for the refreshment in an inn does not make the visitor a
trespasser ab initio as non-payment is a mere act of non-feasance which is not enough for
a trespass ab initio [Six Carpenter’s case (1610) 8 Co. Rep. 146a].
A lawful entry does not become by abuse a trespass ab initio unless the abuse has
reference to and so takes away the ‘entire’ ground and reason of the entry. Thus in Elias v
Pasmore (1934) 2 KB 174, two police constables lawfully entered premises to arrest one
of the plaintiffs and whilst on the premises took possession of a large number of
documents, some rightfully and some wrongfully. It was held that they were trespassers
only as to the documents which were wrongfully taken and that they were not liable as
trespassers ab initio for damages to the premises which they had lawfully entered for the
purpose of arrest.
Where authority is not given by law, but by the party, and abused, then the person
abusing such authority is not a trespasser ab initio. In the case of a general authority or
licence of law, the law adjudges by the subsequent act the intention with which the
trespasser entered; but when the party gives an authority or licence himself to do
anything, he cannot, for any subsequent cause, punish that which is done by his own
authority or licence. Besides, when the authority is conferred by an individual it can be
limited or recalled at will, whereas the rights given by law require to be strictly protected.
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Entry with a Licence
Entering certain premises with the authority of the person in possession amounts to
licence and the defendant cannot be made liable for trespass. Permitting a person to cut
tree on one’s land or permitting a person by the Cinema management to see a film are
examples of licence. The licensor has a power to cancel or revoke the licence and after it
has been cancelled or revoked the licensee becomes a trespasser there and he must quit
that place within a reasonable time.
The licences are of two kinds: a bare licence and a licence coupled with a grant; the
former can be revoked while latter cannot. A licence to see a picture is a licence coupled
with a grant and the cinema authorities cannot revoke such a licence. If such a licensee is
forcibly made to leave the theatre before the show is over he can bring an action for
assault and battery [Hurst v Picture Theatres Ltd. (1915) 1 KB l].7 Similarly, a licence to
cut down a tree and to carry it away is an example of a licence coupled with a grant.
The Hurst's case has been criticised on the ground that the damages would have been an
adequate remedy and no order for specific performance would have been issued. Lord
Simon said (in Winter Garden Theatre (London) Ltd. v Millenium Ltd., 1948 AC 202)
referring to Hurst’s case: “The licence in such a case is granted under contractual
conditions, one of which is that a well behaved licensee shall not be treated as a
trespasser until the event which he has paid to see is over.” The decision in Hurst’s case
was followed in the Australian case of Cowell v Rosehill Race Course Co. (1947) 56
CLR 605.
Trespass by Relation
One who has right to possess is by a legal fiction deemed when he enters to have been in
possession from the moment when his right of
_________________
7.
In Wood v Leadbitter (1845)12 M & W 838, the plaintiff having purchased a
ticket went to see a horse race. While the races were going on, the defendants (occupiers
of the race course) asked the plaintiff to leave the premises and on his refusal to do so he
was forcibly ejected. Held that the revocation of licence was effectual and after the
revocation the plaintiff had become a trespasser and thus his ejection was not an
actionable wrong. The rule in this case is now considered to be obsolete.
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entry accrued. Thus if an owner of property, wrongfully ousted of possession, manages to
enter his premises, he will be deemed to have been in possession even during the period
that he was actually out of possession and he can bring actions in trespass for wrongs to
property during the period.
Actual physical contact is not necessary to constitute even de facto possession
(possession in fact), viz. de facto possession by a student of his books and clothes at
home/hostel even though he is not always present there. Can a man travelling by a
railway train claim de facto possession of the seat which he has temporarily occupied?
Suppose after taking his seat but before the starting of the train he leaves his seat to
purchase newspaper from the bookstall, leaving his umbrella and upper cloth in the seat
and on return finds the seat occupied by another passenger, he cannot claim de facto
possession of the seat, unless he had reserved a particular seat in the train or leaves his
seat after the starting of the train on its journey for a temporary duration.
Trespass over Airspace
A person has an ownership of not only the earth’s surface, but also of anything below
(sub-soil) or above (airspace) that surface which is capable of being reduced into private
ownership.
Trespass over airspace may take place through aircraft, polluting gas, etc. In Gifford v
Dent (1926 WN 336) the tenant of the upper floor of a building affixed an ornamental
sign to his premises so that it projected over a forecourt occupied by another tenant. It
was held that a trespass was committed, as the injury caused was direct and immediate.
In India, the Aircraft Act of 1934 makes it a punishable offence for any person wilfully to
fly an aircraft in such a manner as to cause danger to any person/property in land or water
or in the air, but it contains no provision of absolute liability as in the English Acts.
Continuing Trespass
Every continuance of trespass is a ‘fresh’ trespass, in respect of which a new cause of
action arises from day to day as long as the trespass continues. One who built on the
plaintiff’s land some buttresses to
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Trespass to Person & Property
support a road and paid damages in an action for trespass was held liable in damages in a
second action for not removing the buttresses after notice [Holmesv Wilson (1839) 10 A
& E 503].
Defences to Trespass
Any justifiable entry or interference will negative liability for trespass. Justification by
law, private defence, necessity and parental authority, etc. are well recognized lawful
defences for trespass. A policeman can enter a private house through an open door late at
night if he has reasonable grounds to believe that there is some disturbance there which
requires immediate investigation. Similarly, as discussed earlier, licence is a ground of
justification.
Remedies for Trespass
(i)
Re-entry - The person entitled to possession can enter or reenter the premises in a
peaceable manner. Thus, a trespasser who, with the use of reasonable force is made to
leave the premises, cannot bring an action against the person who was lawfully entitled to
his land [Hemmings v Stoke Poges Golf Club (1920) 1 KB 720].
(ii)
Action for ejectment - A person in lawful possession when dispossessed of certain
immovable property without due course of law, can recover back the property by filing a
suit within 6 months of his dispossession. In such a suit, the title to the property is not
considered, as even a person claiming a superior title has no right to evict another person
without due course of law (Sec. 6, Specific Relief Act, 1963). However, a mere trespasser
cannot have recourse to this provision, as a trespasser is not a person in possession.
However, ultimately, the plaintiff must recover by the strength of his own title and not by
the weakness of the title of the defendant. Further, if the evidence shows that some third
person is entitled to the land, the plaintiff ought not to succeed and the defendant ought to
be allowed to plead jus tertii (title of third person).
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(iii)
Action for mense profits - Apart from the right of recovery of land by getting the
trespasser ejected a person who was wrongly dispossessed of his land may also claim
compensation for the loss which he has suffered during the period of dispossession.
‘Mense profits’ refers to the profits taken by the defendant during the period of his
occupancy.
(iv)
Distress damage Feasant - This right authorises a person in possession of land to
seize the trespassing cattle or other chattels. He can detain them until compensation has
been paid to him for the damage done.
[3]
TRESPASS TO GOODS
Trespass to goods is wrongful direct physical interference with the possession of them,
viz. throwing stones on car, shooting birds, beating animals, removing or injuring or
destroying goods, infecting the animals with disease or chasing animals to make them run
away from its owner’s possession.
The plaintiff must at the time of trespass have the present possession of goods, either
actual or constructive (e.g. an agent, a bailee), or a legal right to the immediate
possession (the proof of title to the goods not required). But when the owner has given up
his possession, for instance, by pledging the goods or giving them to another person
under a hire-purchase agreement such a right cannot be exercised.
The wrong may be committed intentionally, negligently, or even by a honest mistake. In
Kirk v Gregory (1876) 1 Ex D 55, on A’s death his sister-in-law removed some jewellery
from the room where his dead body was lying, to another room under a reasonable but
mistaken belief that the same was necessary for its safety. The jewellery got stolen. A’s
sister-in-law was held liable for the trespass of jewellery.
Detinue
Detention is the adverse withholding of the goods of another. Detinue is an action under
which the plaintiff can recover the goods from the
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defendant when the same are being wrongfully detained by the latter. The injury
complained of is not the taking, not the misuse and appropriation of the goods, but only
the detention. The action for detinue is based upon a wrongful detention of the plaintiff’s
chattel by the defendant, evidenced by a refusal to deliver it upon demand and the redress
claimed is not damages for the wrong but the return of the chattel or its value. However
the damages for wrongful detention could also be claimed additionally.
If the original possession is lawful but subsequently the goods are wrongfully detained,
an action for detinue can be brought. Thus, if a bailee refuses to deliver the goods after
the bailment is determined he is liable in detinue. It may be noted that trespass de bonis
asportatis, i.e. wrongful taking of goods is wrongful ab initio, whilst in detinue
possession is acquired rightfully but detention of the goods is wrongful. Thus in an action
for detinue the defendant assumes the possession of the goods whereas there could be a
trespass to the goods while the same continue to be in the plaintiff’s possession.
In an action for detinue the plaintiff must prove that he is entitled to possession of the
goods, and that he demanded the goods from the defendant, but the defendant refused to
deliver them and detained them. A lien on the goods by the defendant is a good answer
(justification). It may be noted that when the goods are returned to the plaintiff in a
damaged condition, the remedy of detinue is of no help to the plaintiff.
Detinue stands abolished in England by the Torts (Interference with Goods) Act, 1977
which however allows for conversion remedies that were available under common law
for detinue. There is no corresponding Act in India. Sections 7 and 8 of the Specific
Relief Act, 1963 provide for the recovery of specific movable property at the suit of a
person entitled to immediate possession generally when the defendant is an agent or a
trustee for the plaintiff; when compensation in money would not afford adequate relief;
and when it would be extremely difficult to ascertain the damage having regard to the
special character of the chattel. Thus, these provisions contain relief which can be
obtained in an action for detinue.
In Banshi v Goverdhan (AIR 1976 M.P. 125), the defendant having taken a cycle on hire
from the plaintiff failed to return the same. He was
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Law of Torts
held liable to pay the plaintiff the estimated value of the cycle i.e. Rs.300, under an action
for detinue.
Conversion
Conversion (also called ‘Trover’) consists in wilfully and without any justification
dealing with goods in such a manner that another person, who is entitled to immediate
use and possession of the same, is deprived of them. It is dealing with the goods in a
manner which is inconsistent with the right of the owner. “A person who treats goods as
if they were his when they are not, is liable to be sued in conversion” (Winfield).
Refusing to deliver the plaintiff’s goods, putting them to one’s own use or consuming
them, destroying them or damaging them in a way that they lose their identity, etc., all
amount to conversion.
In Richardson v Atkinson (1723) 1 Stra 576, the defendant drew out some wine out of the
plaintiff’s cask and mixed water with the remainder to make good the deficiency. He was
held liable for the conversion of the whole cask as he had converted part of the contents
by taking them away and the remaining part by destroying their identity. Similarly,
spinning cotton into yam or grinding com into flour if done without the owner’s
authority, amounts to conversion [Com. Dig. Action Trover E.]. A right to lop the
overhanging branches over one’s land did not carry with it the right to pick and
appropriate the fruit [Mills v Brooker (1919) 1 KB 555].
Unlawful user of the goods of another in such a manner that the goods might be rendered
liable to forfeiture by the authorities would also amount to conversion [Moorgate
Mercantile Co. Ltd. v Finch (1962) 2 All ER 467], The conduct of the defendants in
retaining the amount (of the goods purchased from the plaintiff) to which the plaintiff is
entitled in spite of demands, amounts to conversion [M.S.Chokkaligam v State of
Karnataka AIR 1991 Kant 116]. The case does not appear to lay down a correct
proposition.
An act of conversion may be committed: (i) when property is wrongfully taken, (ii) when
it is wrongfully parted with, (iii) when it is wrongfully sold, (iv) when it is wrongfully
retained, (v) when it is wrongfully destroyed, or (vi) when there is a denial of the lawful
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owner’s right (however a mere denial of title is not of itself conversion when the
defendant has never been in possession of goods).8
Wrongful Intention not Necessary
A person dealing with the goods of another person in a wrongful way does so at his own
peril and it is no defence that he honestly believed that he has a right to deal with the
goods or he had no knowledge of the owner’s right in them. According to Lord Porter,
“Conversion consists in an act intentionally done inconsistent with the owner’s right,
though the doer may not know of, or intend to challenge, the property or possession of
the true owner.” However, a mere taking unaccompanied by an intention to exercise
permanent or temporary dominion may be a trespass, but is no conversion9 [Fouldes v
Willonghby (1841)8 M & W 50; Anandi Lal v Fateh Ali (1953) RLW 556].
Where some military Jawans found some firewood lying by the river side and they
thought that the wood probably belonged to the government, and thus took away the
wood for camp fire and fuel, it was held that the Union of India was liable to compensate
the plaintiff (whose wood it was) for the loss and the fact that the Jawans did not intend
to commit the theft did not absolve the State from its liability [Roop Lal v Union of India
AIR 1972 J&K 22].
Where a cotton broker (defendant) obtained possession of the plaintiff’s cotton bales
from one B (who had obtained them from the plaintiff by fraud) and sold the same
further, receiving only his own
_________________
8.
[English] Torts (Interference with Goods) Act. 1977; Sec. 11(3).
9.
“If I snatch your hat from your head and throw it at any other person that is
trespass to your hat, but it is not conversion, for I am not questioning your title to it. But
if I take it from you with intent to steal it, that is conversion as well as trespass”
(Winfield).
X receives from B, a bookseller, a parcel of books, which X did not ordered. X wrote to
B to arrange for taking them back soon as he did not want to buy them. After three
months, X received a letter from B asking X to hand them over to a local book dealer. By
this time the books became moth-eaten and unfit for sale. Can B sue X for conversion
and recover the price of the books?
[I.A.S.-90]
[Note: B cannot sue X for conversion as merely taking possession of goods by itself will
not constitute conversion.]
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Law of Torts
commission, the defendant was held liable to the plaintiff for the tort of conversion
though the defendant had no knowledge of the fact that B had obtained goods
fraudulently [Hollins v Fowler (1875) LR 7 HL 757]. A wrongful sale of goods is
conversion.
If the person selling the goods sells them without any authority from the owner he may be
liable for conversion. The owner may also recover from the purchaser because the
general rule protects interest of the owner as against the buyer. This is a conflict between
the rival principles of freedom of commerce and security of ownership (Winfield).
However, in certain exceptional cases, an innocent buyer, who takes the good without
having any notice regarding the seller’s defective title, may get a good title to the goods.
If a warehouseman mis-delivers goods even by mistake he will be liable for conversion
[Devereaux v Barclay (1819) 2 B & Ald 702]. The payee of a crossed cheque especially
endorsed it to the plaintiffs, a stranger who having obtained possession of the cheque
endorsed it in the favour of himself and presented it at the defendants’ bank and thus got
it encashed, it was held that the defendants were liable to the plaintiffs in an action for
conversion for the amount of the cheque [Kleinwort, Sons & Co. v Comptoir National D’
Escompte de Paris (1894) 2 QB 157].
The law, however, excuses certain acts, and if they were done in bona fide ignorance of
the plaintiff’s title there may be no conversion. The finder of goods is justified in taking
steps for their protection and safe custody till he finds the true owner. And therefore it is
no conversion if he bona fide removes them to a place of security. Similarly, one who
deals with goods at the request of the person who has actual custody of them, in the bona
fide belief that the custodian is the true owner or has the authority of the true owner,
should be excused for what he does [Hollins v Fowler (1875) LR 7 HL 757, per
Blackburn, J.].
Mere voluntary reception of goods is not conversion of them provided that the receiver
honestly believes that the transferor has a title which enables him lawfully to transfer the
goods. If A pledges B’s goods with C who receives them in good faith, that is not
conversion on his part. But anyone who makes himself an active party to an unauthorized
transfer of possession will be liable for conversion.
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Immediate Right of a Possession or Use Necessary
For an action for conversion it is also necessary that the plaintiff must’ve a right to the
immediate possession of the goods at the time of their conversion. Such an action may be
brought by a finder of goods, a bailee or pledgee of the goods, an auctioneer, a person in
possession under a hiring agreement, or master of a ship. If the plaintiff cannot prove his
right of possession, an action for conversion will fail.
The finder of goods is a ‘person in possession’ (unless he is a trespasser) and has a right
to keep it against all but the true owner. Thus in Armory v Delamirie (1721) 1 Str 505,
the chimney sweeper’s boy, who after finding a jewel had given it to a jeweller to be
valued, was held entitled to recover its full value from the jeweller on his refusing to
return the same. Similarly, in Parker v British Airways Board (1982) 1 All ER 834 (CA),
the plaintiff who was a passenger found a bracelet in the executive lounge at London
Airport. He handed over it to an employee of the Airlines with a direction that it be
returned to him if it was not claimed by its owner. The owner did not claim the bracelet
still the Airlines did not return it to the plaintiff and instead sold it and kept the proceeds.
The plaintiff sued for conversion and was awarded as damages the value of the bracelet.
An owner of the goods who has suspended his possession, for example, by hiring them,
cannot bring an action. But when a person having once given up the possession acquires
the right to an immediate possession of the goods (viz. when a person taking an article on
hire- purchase basis makes default in payment of an instalment), he can bring an action
for conversion.
Conversion by Keeping/Detention
A keeping of another’s goods and a refusal to deliver them amounts to conversion. An
unqualified refusal is always conclusive evidence of a conversion, but a qualified,
reasonable and justified refusal is not. Thus the refusal by a solicitor to give up deeds
except on condition, which he had no right to impose, that his charges in respect of
business done for his own client should be paid would be evidence of conversion [Davies
v Vernon (1844) 6 QB 443]. Refusal or neglect by a railway company to deliver goods
after demand made was held to be conversion [Haryana Cotton Mills Co. Ltd. v B.B. &
C.I.Rly. Co.(1927) 28 PLR 665].
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Distinction between Trespass and Conversion
(1)
Trespass is essentially a wrong to the actual possessor and therefore cannot be
committed by a person in possession. Conversion, on the other hand, is a wrong to the
person entitled to immediate possession (the actual possessor is frequently, but not
always, the person entitled to immediate possession). Sometimes a person entitled to
immediate possession is allowed to sue in trespass so that the conversion may, but does
not necessarily, include trespass.
(2)
To damage or meddle with the chattel of another, but without intending to
exercise an adverse possession over it, is a trespass. In an action for conversion, the
defendant’s intended act must amount to denial to the plaintiff’s right /title to the goods
to which he is lawfully entitled. Thus removing the goods from one place to another may
be trespass but it is not conversion. A simple aspiration of a chattel without intention of
making any further use of it, is not sufficient to establish a conversion though it may be a
sufficient foundation of a trespass action [Fouldes v Willoughby (1842) 8 M&W 540].
(3)
The gist of the action, in trespass is the force and direct injury inflicted; in
conversion, it is the deprivation of the goods or their use. If a person snatches my gold
ring with a view to steal it, the act amounts to both trespass and conversion. But if a
person borrows my ring for his use but later on sells it he will be liable for conversion
only.
(4)
There will be difference in the measure of damages in both, for usually in
conversion the full value of the goods will represent the damages whereas in trespass the
interference may be of such a trivial nature that the damages will be nominal.
Distinction between Detinue and Conversion
Detinue, considered as a tort, does not substantially differ from conversion by detention
(discussed earlier). In both cases, the plaintiff must have a special and general property
and a right to immediate possession. It is of the option of the plaintiff to sue the bailee
either for wrongful conversion of goods or the wrongful detention thereof. The normal
rule
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Trespass to Person & Property
is: If market is rising, sue in detinue, if it is falling, sue in conversion. However, the
courts have taken the view that the plaintiff should not be allowed to delay his action in
order to get the advantage of a rising market [Dhian Singh v Union of India AIR 1958 SC
274].
However, detinue is distinct from conversion in that the latter is never available where
there is mere detention without any wrong to the plaintiff’s title, as conversion is
essentially a wrong to one’s ownership of goods and involves misuse and appropriation
of goods. It may be noted that under old English law, detinue had a great disadvantage in
that a defendant under that action can defeat the plaintiff’s claim by getting a number of
compurgators to swear in his favour although in fact they knew nothing of the facts of the
case. No wonder, that in course of time, honest sufferers when faced with such a risk
gave up this remedy and began to favour the more effective remedy of conversion.
Page 304
12
Malicious Prosecution and Conspiracy
Malicious Prosecution
Malicious prosecution consists in instituting unsuccessful criminal, or bankruptcy, or
liquidation proceedings, maliciously and without reasonable and probable cause. When
such prosecution causes actual damage to the party prosecuted, it is a tort for which he
can bring an action.
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 [Mohd. Amin v Jogendra
Kumar AIR 1947 PC 108],
The bringing of an ordinary civil action (not extending to any arrest or seizure of
property) is not a good cause of action for malicious prosecution howsoever unfounded,
vexatious or malicious it might be. The reason alleged for this rule is that an unfounded
and unsuccessful civil action is not the cause of any damage of which the law can take
notice.
In an action for malicious prosecution the following essentials have got to be proved by
the plaintiff:
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(i)
Prosecution by the Defendant1
It involve two elements, first that the plaintiff was prosecuted and secondly, that the
defendant was the prosecutor.
Prosecution means criminal proceedings against a person in a court of law. A prosecution
is there when a criminal charge is made before a judicial officer or a tribunal. The word
“prosecution” carries a wider sense then a trial and includes criminal proceedings by way
of appeal, or revision. Proceedings before the police are proceedings anterior to
prosecution and thus no prosecution. The prosecution is not deemed to have commenced
before a person is summoned to answer a complaint.
In Nagendra Nath Ray v Basanta Das Bairagya, ILR (1929)47 Cal 25, after a theft had
been committed in the defendant’s house he informed the police that he suspected the
plaintiff for the same. The plaintiff was arrested by the police but was subsequently
discharged by the magistrate. In a suit for malicious prosecution it was held that it was
not maintainable as there was no prosecution at all because mere police proceedings are
not the same thing as prosecution.
Prosecution should be made by the defendant. A prosecutor is a person who is actively
instrumental in putting the law in force for prosecuting another. Although criminal
proceedings are conducted in the name of the Crown but for the purpose of malicious
prosecution, a prosecutor is the person who instigated the proceedings2 [Balbhaddar v
Badri Salt AIR 1926 PC 46],
“Active instrumentality” is easier to illustrate than to define. If I tell a policeman that I
have had a particular thing stolen from me and that it was seen in X’s possession and the
policeman without any further instructions on my part makes inquiries and arrests, it is
not I who have instituted the prosecution. I certainly set the stone rolling but it was a
stone of suspicion only. Similarly, if a man does no more
_________________
1.
“In tort of malicious prosecution the plaintiff must prove among other things, that
the defendant was the person who was actively instrumental in putting the law in force.”
Discuss.
[I.A.S.-97/2005]
2.
The Privy Council said, “In any country where, as in India, prosecution is not
private, an action for malicious prosecution in the most literal sense of the word could not
be raised against individual. But giving information to the authorities which naturally
leads to prosecution is just the same thing. And if that is done and trouble caused an
action will lie.”
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Law of Torts
than tell the story of his loss to a judicial officer such as a magistrate leaving him to
determine whether the facts amount to felony, he does not maliciously procure the
magistrate to issue his warrant for arrest. But where the story told is known by the teller
to be false the Judicial Committee have held that the teller is liable [Pandit Gaya Prashad
Tewari v Sardar Bhagat Singh (1908) 24 TLR 884].
Instigating a prosecution is to be distinguished from the act of merely giving information
(viz. to the police), on the strength of which a prosecution is commenced. In order that a
private person can be termed as ‘prosecutor’ he must’ve done something more than
merely lodging the complaint with the police, he must’ve been actively instrumental in
the proceedings and must’ve made his best efforts to see that the plaintiff is convicted for
the offence [Pannalal v Shri Krishna AIR 1955 M.B. 124]. If the prosecution is launched
on the information supplied by and the active participation of the defendant, the
defendant will be liable even though he may not have himself figured as the complainant
in the criminal court [Periya Goundan v Kuppa Goundan (1919) ILR 42 Mad 880],
The conduct of the complainant before and after the complaint has to be seen to decide
whether he is real prosecutor or not; the mere setting of the law in motion is not the
criterion. If the complainant knowing that the charge is false tries to mislead the police by
procuring false evidence for the conviction of the accused he would be considered to be
the prosecutor. But if he does not go beyond giving what he believes to be correct
information to the police, and the police without further interference on his part (except
giving such honest assistance as they may require), think fit to prosecute, it would be
improper to make him responsible in damages for the failure of the prosecution [Gaya
Prasad v Bhagat Singh, ILR (1908) 30 All 525 (PC)].
To found an action for malicious prosecution the test is therefore not whether the criminal
proceedings have reached a stage at which the magistrate could have cognizance, the test
is whether the defendant was actively instrumental in putting the criminal law into force.
In other words, it must be proved that the defendant maliciously set the law in motion
through a constituted authority without regard to the technical form in which the charge
has been preferred [Madan Mohan Singh v Bhirgunath Singh AIR 1952 Pat 283].
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Malicious Prosecution and Conspiracy
An investigating officer is not liable unless he was a party to the falsity of the case. A
pathologist preparing a postmortem report or a person appearing merely as a witness
cannot be held to be a prosecutor. A malicious reporter to the police for getting a
prosecution launched on the basis of his evidence is within the catch of the principle
[Martin v Watson (1995) 3 All ER 559(HL)].
(ii)
Absence of Reasonable and Probable Cause
The plaintiff has also to prove that the defendant prosecuted him without reasonable and
probable cause. Reasonable and probable cause has been defined as “an honest belief in
the guilt of the accused upon a full conviction, founded upon reasonable grounds, of the
existence of circumstances, which assuming them to be true would reasonably lead any
ordinarily prudent man placed in the position of the accused to the conclusion that the
person charged was probably guilty of the crime imputed” [Hicks v Faulker (1878) 8
QBD 167 ].
Reasonable cause is such as would operate on the mind of a discreet man; probable cause
is such as would operate on the mind of a reasonable man. The case of Abrath v North
Eastern Ry. lays down that the defendant will be deemed to have made reasonable and
probable cause when - (a) he took care to be informed of the facts, (b) he honestly
believed his allegation to be true, and (c) the facts were such as to constitute a prima facie
case.
Reasonable and probable cause means that there are sufficient grounds for thinking that
the accused was probably guilty but not that the prosecutor necessarily believed in the
probability of conviction. “Probable cause” is not the same thing as “sufficient cause”.
The question of the existence of such cause has to be determined upon the facts known to
the prosecutor at the time of launching the prosecution [Ramdeo v Birdichand Sumermal
AIR 1962 Raj 19]. The existence of reasonable and probable cause does not avail to the
prosecutor prosecuted in ignorance of it.
Neither mere suspicion is enough, nor has the prosecutor to show that he believed in the
probability of the conviction. The prosecutor should honestly believe in the story on
which he acts and in believing in the story he must act like a reasonable prudent man. The
test, therefore, is both subjective and objective [Corea v Peiris (1909) AC 549]. The
prosecutor’s belief should be based on due enquiry. If there
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Law of Torts
is a reasonable and probable cause for the prosecution, notice is immaterial because
existence of reasonable cause in the plaintiff’s mind is sufficient defence.
Acting on the advice of the counsel raises a presumption that the defendant had been
having a reasonable and a probable cause, provided the lawyer has been fully and fairly
acquainted with all the relevant facts within the defendant’s knowledge. In Smt. Manijeh
v Sohrab P. Kotwal (AIR 1949 Nag 273), the lawyer was misled and was provided with
such facts which the defendant knew to be false. In the prosecution on the basis of such
advice there was held to be want of reasonable and probable cause and also malice for
which the defendant was held liable.
The absence of reasonable and probable cause should not be presumed from the dismissal
of a prosecution or acquittal of the accused. The fact that the plaintiff has been acquitted
is not prima facie evidence that the charge was unreasonable and false. Where, however,
the charge is false to the knowledge of the prosecutor or where the falsity could be
discovered by reasonable care the innocence of the accused may lead to the inference of
the absence of reasonable and probable cause [Abrath v North Eastern Ry. (1833) 11
QBD 440].
In the above-stated case, one M recovered a large sum by way of compensation from the
defendant company for personal injuries in a railway collision. Subsequently, the railway
company got the information that M’s injuries had been artificially created by Dr. Abrath,
who was M’s surgeon. The directors of the railway company made enquiries and
obtained legal advice which suggested that Dr. Abrath should be prosecuted for
conspiring with M to defraud the railway company. Dr. Abrath was accordingly sued, but
was acquitted. He brought an action for malicious prosecution against the railway
company. The court found that the railway company had taken reasonable care to inform
itself of the true facts and they honestly believed in their allegations and, therefore they
were held not liable.
(iii)
Malice
It is also for the plaintiff to prove that the defendant acted maliciously in prosecuting him.
It means that the defendant is actuated not with the mere intention of carrying the law
into effect, but with an intention which was wrongful in point of fact. It means a wish to
injure the plaintiff rather than to vindicate the law.
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Malicious Prosecution and Conspiracy
The proceedings complained of by the plaintiff must be initiated in a malicious spirit, i.e.
from an indirect and improper motive, and not in furtherance of justice. Any motive other
than that of simply instituting a prosecution for the purpose of bringing a person to justice
is a malicious motive on the part of the person who acts in that way [Stevens v Midland
Coun Ry. (1854) 10 Ex 352],
But a prosecution is not malicious merely because it is inspired by anger; and however
wrong-headed a prosecutor may be, if he honestly thinks that the accused has been guilty
of a criminal offence he cannot be initiator of a malicious prosecution [Braj Sunder Deb v
Bamder Das AIR 1944 PC 1], The malice necessary to be established is not ‘malice in
law’ such as may be assumed from a wrongful act, done intentionally, without just cause
or excuse, but ‘malice in fact’ malus animus - indicating that the party was actuated either
by spite or ill-will towards an individual3 [Hicks v Faulkner (1878) 8 QBD167].
In order to give an objective meaning to the word “malice” the Court must find out
whether the accuser has commenced prosecution for vindication of justice e.g. for redress
of a public wrong. If he is actuated by this consideration he cannot be said to have any
malice. But if his object to prosecute is to be vindictive, to malign the person before the
public, or if he is guided by purely personal consideration, he should be held to have
malice [Bharat Commerce & Industries v Surendra Nath AIR 1966 Cal 388],
Absence of reasonable and probable cause and existence of malice have to be separately
proved. From a want of reasonable and probable cause a court may infer malice, but not e
contra. However, the absence of reasonable and probable cause is not per se evidence of
malice. Conversely, the most express malice will not give a cause of action if reasonable
and probable cause existed. There must be something more of the nature of an indirect or
sinister motive for the prosecution than the mere absence of reasonable and probable
cause [Glinski v Mclyer
(1962) 1 All ER 696],
The bringing of a charge false to the knowledge of the prosecutor imports in law malice
sufficient to support a civil action. If the S.H.O.
_________________
3.
In England whether there was malice in the defendant is a question of fact for the
jury. In India it is a question of law.
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Law of Torts
of a police station knowingly concots a false criminal story against the plaintiff and
falsely shows recovery of a weapon from the plaintiff’s house, the prosecution is
malicious [Abdul Majid v Harbans Chaube AIR 1974 All 129], If the prosecutor is
innocent in the beginning but becomes malicious subsequently, an action for malicious
prosecution can lie. It may be noted that motive is not to be inferred merely from the
acquittal of the plaintiff.
(iv)
Termination of Proceedings in Favour of Plaintiff
It is also essential that the prosecution terminate in favour of the plaintiff. If the plaintiff
has been convicted by the court he cannot bring an action for malicious prosecution even
though he can prove his innocence and also that the accusation was malicious and
unfounded.
Termination in favour of the plaintiff does not mean judicial determination of his
innocence, it means absence of judicial determination of his guilt. The plaintiff need not
prove acquittal, for a prosecution may be determined in various ways. The proceedings
terminate in favour of the plaintiff if he has been acquitted on technical grounds,
conviction has been quashed, or the prosecution has been discontinued or the accused is
discharged [Venu v Coorya Narayan (1881)ILR 6 Bom 376; Watkins v Lee (1839) 5 M
& W 270].
There is one exception to the rule that the prosecution must have terminated favourably to
the plaintiff, namely, where the proceeding in respect of which the action is brought is ex
parte. In such a case the result naturally terminates unfavourably to the plaintiff.
Even if the plaintiff is convicted by the trial court but the conviction is set aside in appeal,
the plaintiff can sue for malicious prosecution [Herniman v Smith (1938) AC 305; Berry
v B.T.C. (1962) 1 QB 306], However, where there is no provision for appeal against the
decision of a court (viz. summary trial), the action for malicious prosecution would not be
affected by the fact that if appeal were allowed the conviction or acquittal might have
been reversed. Thus in such cases the plaintiff could not recover anything.
When the plaintiff is acquitted of the offence for which he is prosecuted but is convicted
of a lesser offence, he may still sue for malicious prosecution of the graver offence of
which he is acquitted [Baoler v Holder (1887) 3 TLR 546]. It may be noted that no action
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Malicious Prosecution and Conspiracy
can be brought when prosecution or the proceedings are still pending. In an action for
malicious prosecution, the cause of action arises, not on the date of institution of the
proceeding complained of, but on the date when the proceeding terminates in favour of
the plaintiff [Chhaganlal v Thana Municipality (1931)34 Bom LR 143].
(v)
Damage to the Plaintiff
It has also to be proved that the plaintiff suffered damage as a consequence of the
prosecution complained of. Though the prosecution ends in acquittal, the plaintiff may
have suffered damage to his person (deprived of his liberty and mental stress), property
or reputation by it for which he can claim compensation. Malicious prosecution is one of
the torts in which aggravated damages are permissible by taking into account motives and
conduct of defendant and injury to the plaintiff.
Distinction between False Imprisonment and Malicious
Prosecution4
(1)
False imprisonment is wrongfully restraining the personal liberty of the plaintiff;
malicious prosecution is wrongfully setting the criminal law in motion.
(2)
In false imprisonment the personal liberty of the plaintiff may have been
wrongfully restrained by a private individual or setting a ministerial officer in motion.
While in malicious prosecution it is the judicial officer who is set in motion and the
opinion and judgment of a judicial officer are interposed between the charge and the
imprisonment.
Where the inspector did not interpose any discretion of his own between the charge made
by A and arrest of B and the arrest followed merely by signing of the charge-sheet by A,
A’s tort was that of false imprisonment [Austin v Dowling (1870) LR 5 CP 534].
Similarly where upon a complaint by the defendant under Sec. 420, IPC the plaintiff was
arrested by the police, there was no malicious prosecution because the arrest was not the
result of any judicial order.
_________________
4. Distinguish between malicious prosecution and false imprisonment.[I.A.S.-2000]
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Law of Torts
(3)
Imprisonment is prima facie a tort, malicious prosecution is not. Therefore, in an
action for false imprisonment it is the i defendant who has to justify the imprisonment,
whereas in an action for malicious prosecution the plaintiff has to affirmatively prove the
absence of reasonable and probable cause. The defendant is thus in a more advantageous
position in a suit for abuse of process of the court as compared to a suit for false
imprisonment.
(4)
Malice is an essential ingredient in an action for malicious prosecution but not in
that of false imprisonment. It is no defence to an action for false imprisonment that the
detention by the defendant was without malice but due to a bona fide mistake.
CONSPIRACY
When two or more persons without lawful justification, combine for the purpose of
wilfully causing damage to the plaintiff, and actual damage results therefrom, they
commit the tort of conspiracy. It may consist in the agreement of two or more to do an
unlawful act or to do a lawful act by unlawful means. Conspiracy is both a tort and a
crime. However, under criminal law merely an agreement between the parties to do an
illegal act or a legal act by ille-gal means is actionable; it is not necessary that the
conspira-tors must have acted in pursuance of their agreement. The tort of conspiracy is
not committed by a mere agreement between the parties, the tort is completed only when
actual damage results to the plaintiff by some overt act or acts of the defendants. The
mere act of conspiracy is not subject of civil action.
A conspiracy to injure differs widely from an invasion of civil rights by a single
individual because a number of things not in themselves unlawful if done separately may
with conspiracy become dangerous and alarming. Numbers may annoy and coerce where
one may not. But this reason has in the present circumstances become wholly unsound.
As observed by Lord Diplock: “But to suggest that acts done by one street- corner grocer
in concert with a second are more oppressive and dangerous to a competitor than the
same acts done by a string of supermarkets
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Malicious Prosecution and Conspiracy
under a single owner-ship or that a multinational conglomerate or company does not
exercise greater economic power than any combination of small business is to shut one’s
eye to what has been happening in the business and industrial world today” [Gulf Oil
(GB) Ltd. v Page (1987) 3 All ER 14 (CA)].5
Conspiracy to injure6
The tort of conspiracy necessarily involves advertence to and affirmation of the object of
the combination being infliction of damage or destruction on the plaintiff. The purpose to
injure or harm a third party must be distinguished from the purpose to advance the
legitimate interests of the persons combining to-gether. When the object of persons
combining is to protect or further their own interest rather than causing damage to the
plaintiff that is a justification for their combination and they will not be liable even
though their concerted act causes damage to the plaintiff; however, for that the means
adopted by them should not be unlawful and they do not infringe rights of other people.7
In Mogul Steamship Co. v McGregor, Gow & Co. (1892) AC 25, the defendants, certain
firms of ship-owners, who had been engaged in tea-carrying trade between China and
Europe, combined together and offered reduced freight with a view to monopolise the
trade and the result was that the plaintiff, a rival trader, was driven out of the trade. The
plaintiff brought an action for conspiracy, but failed. The Court held that the defendants
were not liable as their object was a lawful one i.e. to protect and promote their own
interests and they had used no unlawful means for achieving the same.
_________________
5.
Examine the statement that what is lawful if one may become unlawful when
done by more than one acting in combination.
[I.A.S.-93]
6.
"The purpose of a combination and the means employed to achieve that purpose
are the two most important considerations in the tort of conspiracy”. Examine.
[I. A. S.-95]
[Also see the next heading ‘Unlawful Means in Conspiracy’.]
7.
The combiners should've acted in order that (not with the result that, even the
foreseeable result) the plaintiff should suffer damage. If they did not act in order that the
plaintiff should suffer damage, they are not liable, however selfish their attitude and
however malicious or bad their motive have been and however inevitable the plaintiffs
damage may have been [Winfield & Jolowicz, Tort, 12th ed., p. 528],
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Law of Torts
Similarly, in Sorrel v Smith (1925) AC 700, the plaintiff, a retail newsagent, who was
accustomed to take his newspapers from R withdraw his custom from R and started
taking the newspapers from W. The defendants, members of a committee of circulation
managers of London daily papers, threatened the cutting of the supply of newspaper to W
if W continued to supply newspapers to the plain-tiff. Since the defendants had acted to
promote their business interests they were held not liable. A threat to effect a purpose
which is in itself lawful gives no right of action to the plain-tiff, unless the threat involves
violence or fraud (i.e. unlawful means).
Crofter Hand Woven Harris Tweed Co. Ltd, v Veitch (1942) AC 435 is another
illustration of a combination for a lawful purpose. There, the defendants, a trade union,
instructed dockers, who were members of the union, to refuse to handle plaintiff’s goods
(without there being any breach of contract). The object of this embargo was to prevent
competition in the yam trade and thus helping to secure economic stability of the industry
and thereby increase the wage prospects of the union members in the mills. It was held
that since the above action by the union was to promote the interest of the members there
was no conspiracy.
But a combination, not in pursuit of trade interests, but in pursuit merely of malicious
purpose to injure another would be clearly unlawful, and if an injury has resulted, an
action lies, e.g. a combination without justification or excuse to injure a man in his trade
by inducing his customers or servants to break their contracts with him, or not to deal
with him or continue in his employment [Quinn v Leathern (1901) AC 495].
Where the plaintiff appeared in character upon the stage, and thereupon the defendants,
with other persons, hissed and hooted at the plaintiff, so as to compel him to desist from
the perfor-mance and thereby caused the plaintiff to lose his engagement, it was held that
a good cause of action was shown [Gregory v Duke of Brunswick - “The hissing case”
(1844) 6 M&G 205].
In Huntley v Thornton (1957) 1 All ER 234, the plaintiff, a member of a union, refused to
comply with the union’s call for strike. The defendants, the secretary’ and some members
of the union, wanted his expulsion from the union but the executive council of the union
decided
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Malicious Prosecution and Conspiracy
not to do that. The defendants acting out of grudge against the plaintiff made efforts to
see that the plain-tiff remained out of work. The defendants were liable as their acts were
not in furtherance of any union interest but were actuated by malice and grudge.8
Unlawful Means in Conspiracy
Where the aim is good but the means employed are unlawful, for example, illegal labour
strike for a good cause, the result depends upon facts. Unless the predominant purpose is
to injure the plaintiff, there is no liability for the tort of conspiracy although the means
employed by the combination are themselves actionable as tort. However, the [English]
Trade Disputes Act, 1905 and the [Indian] Industrial Disputes Act create an exception to
the foregoing principles in cases of trade disputes.
In Rohtas Industries Ltd. v Rohtas Industries Staff Union (1976)2 SCC 82, it was held
that if the object of a strike by workmen belonging to a Union is to bring the employer to
teims with the employees or to bully the rival Trade Union into submission, there cannot
be an actionable combination in tort although the strike is illegal under the Industrial law.
The strike was ille-gal, although not actionable; so it can be said that the means employed
was unlawful. Yet it was held that the tort of conspira-cy was not made out for the object
of the combiners was not to harm the management but to benefit themselves. Even when
there are mixed motives, liability will depend on ascertaining which is the predominant
object or the true motive or the real purpose of the defendant.
The purpose to injure the plaintiff need not be the predominant purpose if unlawful
means are used; it is sufficient if it is one of the purposes. It is no defence for the
conspirators to show that their primary or predominant purpose was to further or protect
their own interests; it is sufficient to make their action tortious that the means used were
unlawful and there was intent to injure the plaintiff [Lonrho Plc. v Fayed (1991) 3 WLR
188 (HL)].
_____________
8.
It may be noted that 'malice' is not an essential requirement of the tort of
conspiracy.
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Law of Torts
As the tort of conspiracy to injure by unlawful means is not complete without pecuniary
loss, any damage at large had to be referable to the act causing the pecuniary loss which
constituted the tort. Damages for injury to reputation or feelings can only be recovered in
action for defamation and not in an action for conspiracy to injure by unlawful means
[Lonrho Plc. v Fayed (1994) 1 All ER 188(CA)].
Tort of Conspiracy in India
How far the English tort of conspiracy can be transplanted in the Indian law is not yet
settled. Krishna Iyer J. observed: “Whate-ver the merits of the norms, violation of which
constituted ‘conspiracy’ in English law, it is a problem for creative Indian jurisprudence
to consider, detached from Anglophonic inclination, how far a mere combination of men
working for furthering certain objectives can be prohibited as a tort, according to the
Indian value system.”
The court, however, in this case [viz. Rohtas Industries Ltd. v Rohtas Industries Staff
Union (1976) 2 SCC 82], proceeded to apply the English law.
Page 317
13
Occupier’s Liability for Dangerous Premises
An occupier of premises or of other structures like cars, ships, aeroplanes or lifts owes an
obligation to the persons who enter those premises, or structures, in respect of their
personal safety and the safety of their property there. The obligation of the occupier of
certain premises vary according to the type of visitor on the land. The visitor may be (i) a
lawful visitor, (ii) a trespasser, or (iii) a child.1
In order to be an ‘occupier’ it is not necessary for a person to have entire control over the
premises. He need not have exclu-sive occupation. Suffice it that he has some degree of
control. He may share the control with others. The expression ‘premises’ includes not
only land and buildings but also vehicles, railway carriages, lifts, etc. The expression thus
includes certain types of movable properties the distinguishing features of which is that
the defendant remains in control of them and the plaintiff suffers injury by entering into
them. The liability of occupiers of premises is now governed under the English law by
the Occupi-ers Liability Act, 1957 amended by the Occupiers Liability Act, 1984. The
principles of the English Act are followed by the courts in India.
(1)
Obligation towards Lawful Visitors
Prior to the passing of the Occupiers Liability Act, the common law classified the lawful
visitors into two categories - invitees (when the occupier and the visitors had a common
interest)2 and licensees ( the
________________________
1.
Explain the occupier’s liability in respect of structures.
[I.A. S.-2000]
2.
Persons entering in exercise of power or duty i.e. authorized officials under statute
should be treated as invitees rather than bare licensees.
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Law of Torts
visitors alone had an interest, viz. a customer at a shop, a sales-man, a guest invited for a
dinner). The common law laid down separate rules for obligations towards each one of
them.
In the case of an ‘invitee’, the occupier’s duty was “to use reasonable care to prevent
damage from unusual danger, which he knows or ought to know.” In contrast as against a
‘licensee’, the occupier’s duty was to warn him of any latent defect or concealed danger
which he actually knew. He had no liability for the loss caused by dangers not known to
him. He was also not liable for any danger which was obvious and the licensee must’ve
appre-ciated the same.
In Cates v Mongini Bros. (1971) 19 Bom LR 778, the plaintiff went to the defendant’s
restaurant to take lunch and took a seat under a ceiling fan. The fan fell on her whereby
she was injured. It was found that the fan had felled due to a latent defect in the
suspension rod which could not have been discovered by reaso-nable care. The
defendants were held not liable. In Fairman v Perpetual Investment Building Society
(1923) AC 74, the defendant were in possession of the common staircase. Owing to
wearing away of cement, there was a depression in one of the stairs, the plaintiff’s heel
was caught in it, she fell down and got injured. It was held that the plaintiff being a
licencee the defendant could be made liable towards her only for a concealed danger,
while in this case the injury to the plaintiff was due to danger which was obvious and
could have been observed by the plaintiff.
Duty Towards a Licencee3
A licensee is a person who enters on premises under a licence from the occupier, either
express or implied. A bare licensee is only entitled to use the place as he finds it. Any
complaint by him may be said to wear the colour of ingratitude so long as there is no
design to injure him. The licensee or guest must take care of himself and no action will
lie unless
__________________
3.
“The facts must support the implication from occupier's conduct that he has
permitted entry, not merely tolerated it, for knowledge is not tantamount to consent”.
Discuss with reference to the liability of the occupier towards a licensee. Is it in any way
different towards a trespasser? Explain. [I.A.S.-93]
[Note: Also see the heading ‘Obligation towards a Trespasser’, Infra].
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Occupier’s Liability for Dangerous Premises
the accident by which he sustained the injury has been caused by the owner’s negligence.
The duty of the occupier is:
(i)
to caution him against any known insecurity or hidden danger which is not of a
readily discoverable character, and of which the occupier was aware but the party was
ignorant. If the danger is obvious the licensee must look out for himself (See Fairman’s
case, Supra).
(ii)
Not to alter the character of the place by placing on it dangerous obstructions. The
owner is under no liability as to existing traps, but must not create new ones without
taking precautions to protect the licensee against them.
The position of a licensee is better than that of a trespasser in that he is entitled not to
have the condition of the premises so altered as to set up a trap for him. However, his
position is not better than that of an invitee, as the owner of premises incur liability to the
latter as to the existing traps but not to the former.
Common Duty of Care
The classification of lawful visitors into invitees and licensees has now been done away
with by the Occupiers Liability Act, 1957, under which an occupier is expected to
observe towards the lawful visitors a “common duty of care”: “a duty to take such care as
in all the circumstances of the case is reasonable to see that the visitor will be reasonably
safe in using the premises for the purpose for which he is invited or permitted to be there”
[Sec. 2(2)].4 The duty is not to ensure the visitor’s safety, but only to take reasonable
care [Titchener v British Railways Board (1983) 3 All ER 770 (HL)].
The common duty of care, however, may be extended, restricted, modified or excluded
by an agreement between the parties. An occupier is supposed to take special care for the
safety of the children. However,
_________________
4.
Indian Easements Act, 1882 provides that the licensor must warn the licensee
about the dangers of which he knows and after the licensee has entered the premises the
licensor must not do anything which makes the property unsafe (Ss. 57 & 58). Thus
where the tenant on the fourth floor of a building was killed by the fall of a wall, and the
fall was due to a structural defect in the wall of which the landlord was aware but had
ignored the due repairs, he was held liable [Lakshmichand K. Punja v Ratnabai ILR
(1927) 51 Bom 274],
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Law of Torts
in respect of persons who enter in respect of special calling the occupier may expect that
such persons shall guard against any special risks ordinarily incidental to their callings
[Sec. 2(3)]. In Roles v Nathan (1963)2 All ER 908, two chimney sweepers were killed by
CO gas while trying to seal a sweep hole in the chimney of a coke-fired boiler while the
fire was still alight and the occupier was held not liable. The Court observed: “When a
householder calls in a specialist to deal with a defective installation on his premises, he
can reasonably expect the specialist to appreciate and guard against the dangers arising
from the defect.”
Similarly, in the case of Christman (1952) 1 KB 141, a window cleaner was engaged to
clean the windows of a club. One of the windows was defective and so when it was being
cleaned, it ran down quickly and injured the hand of the cleaner. It was held that he had
no cause of action against the club for the risk of defective window is incidental to the
calling of a window clea-ner. Had it been a case of a guest the result would have been
different.
The occupier cannot exempt himself by giving a ‘warning of the danger’ to the visitor
[Sec. 2(4)(a)]. The presence of warning will be only one fact to be considered in the text
of reasonable-ness. Knowledge or notice of the danger is only a defence when the
plaintiff is free to act upon that knowledge or notice so as to avoid the danger. So if there
is only one way of getting in or out of premises and it was by a foot-bridge over a rotten/
dangerous stream, the visitor if injured can make the occupier liable even though he is
warned of the danger or has otherwise knowledge of it [Greene v Chelesea Borough
Council (1954) 2 QB 172]; but if there are two foot-bridges one of which is safe the
warning about the risk in using the other will be a complete defence as it is enough to
enable the visitor to be reasonably safe [Roles v Nathan, supra].
Where damage is caused to a visitor by a danger due to the faulty execution of any work
of construction or repair by an independent contractor employed by the occupier, the
occupier is not liable if he had acted reasonably in entrusting the work i.e. had satis-fied
himself that the contractor was competent and that the work had been properly done [Sec.
2(4)(b)]. The protection given by this provision covers a case of “demolition”. Sec. 2(5)
allows apportionment of blame in case of contributory negligence of the visitor.
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Occupier’s Liability for Dangerous Premises
Structures Adjoining Highways
The owners of structures adjoining highways have a duty to main-tain them properly so
that there is no damage to the users of highways. In regard to the persons lawfully
passing by the premis-es, the duty extends to guarding against what may happen just
behind the premises, on the road, or other place, where a person passing by may lawfully
be. Thus, if a person is not maintaining his building properly he would be liable by the
fall of the wall adjoining highway [Kallulal v Hemchand AIR 1958 M.P. 48].
In Municipal Corpn., Delhi v Subhagwanti (AIR 1966 SC 1750), the defendants were
held liable for the death of a number of persons by the fall of the Clock Tower which was
situated in the heart of the city. It was observed: “There is a special obligation on the
owner of adjoining premises for the safety of the structure which he keeps beside the
highway. If these structures fall into disre-pair so as to be a potential danger to the
passerby or to be a nuisance, the owner is liable ... In such a case it is no defence for the
owner to prove that he neither knew nor ought to have known of the danger. In other
words, the owner is legally respon-sible whether the damage is caused by a patent or a
latent defect.”
Where passers-by were injured by the falling of a brick from a bridge, a barrel of flour
from a window, a packing case, or by the falling of an advertisement banner attached to a
frame over-hanging the road, it was held that they could recover damages. However, a
landowner cannot be held liable for non-maintenance or non-repair of the public pathway
over his land [M.C. Grown v Northern Ireland Housing Executive (1994) 3 All ER 53
(HL)].
If the owner has maintained the structure with a due care and he does not know about the
dangerous condition of the structure and the same cannot be discovered inspite of
reasonable inspection on his part he will not be liable if the structure falls without any
fault on his part. In Noble v Harrison (1926) 2 KB 332, the branch of a huge tree, which
was growing on the defendant’s land and overhanging on the highway, suddenly broke
off due to some latent defect, and fell on the plaintiff’s vehicle passing along the
highway, it was held that the defendant was not liable.
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Law of Torts
In Rajkot Municipal Corpn. v Manjulben Jayantilal Nakum (1997) 9 SCC 552, the
deceased while walking on the footpath of a public road was struck by a roadside tree
suddenly felling on him in a still weather condition resulting in his death. The damages
were claimed from the municipal corporation on the ground of negligence on the part of
the corporation in properly main-taining the roadside trees. It was held that the
corporation is not liable for damages. In Municipal Corpn., Delhi v Sushila Devi (1999) 4
SCC 317, however, the apex court took a different view. The court found the Corporation
liable [See under the Chapter 'Negligence'].
In Hilder v Associated Portland Cement Mftrs. Ltd. (1961) 3 All ER 709, the defendants
were owners and occupiers of premises includ-ing a grassland called Green, one side of
which adjoin a busy highway. Children up to 10 or 11 years were permitted to play on the
Green and the defendants knew that they regularly played there with a football which
often went over the wall which sepa-rated the Green from the highway and had to be
retrieved from the highway. Once the foot-ball went over the wall on the highway and
injured a motor-cyclist. Held, that defendants were liable as they ought to have realized
that children playing in this manner constituted a risk to the persons using the highway.
Liability of Landlord
When a tenant is in charge of a building and its dangerous condi-tion causes the damage
to a visitor the tenant is liable for the same. In certain cases the liability may also be cast
upon the landlord even though it is the tenant and not the landlord who is the occupier of
the building. The landlord is liable when he has undertaken a duty to repair the same
whenever necessary, and has expressly or impliedly reserved the right to enter the
premises [Mint v Good (1951)1 KB 517].
(2)
Obligation Towards Trespassers
A trespasser has been defined as “one who goes upon land without invitation of any sort
and whose presence is either unknown to the proprietor, or, if known, is particularly
objected to.” Thus a trespasser is a person who enters into another’s property without any
right or permission. If the occupier acquiesces to the frequent acts of trespass
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Occupier’s Liability for Dangerous Premises
he is deemed to have tacitly li-censed the entry of others on his land and will be liable for
injury suffered by the plaintiff [Lowery v Walker (1911) AC 10]. Further, if the scope of
prohibited area has not been reaso-nably marked the visitor there may not become a
trespasser [Pearson v Coleman Bros. (1948) 2 KB 359].
The general rule is that there is no duty of care towards a trespasser. He who enters
wrongfully does so at his own risk in all respects. The occupier has no duty to take
reasonable care for his protection or even to protect him from concealed danger. He is
liable only where the injury is due to some wilful act involving something more than the
absence of reasonable care. There must be some act done with the deliberate intention of
doing harm to the trespasser, or at least some act done with reckless disregard of the
presence of the trespasser [Robert Addie & Sons v Dumbreck (1929) AC 358]. Thus he
must avoid endangering the safety of trespassers by concealed dangers in the nature of a
trap, or such as would be likely to punish intruders in a cruel manner, viz. naked live
electric wire (Cherubin v State of Bihar AIR 1964 SC 205), or setting up spring guns
[Bird v Holbrook (1938) 4 Bing 628]. Only reasonable force can be used to expel the
trespasser from the premises, viz. use of spikes or broken pieces of glass on the top of the
wall.
The formulation of the duty in Robert Addies’ case was rather restrictive and gave way to
a more liberal approach made in British Railway Board v Herrington (1972) 1 All ER
749 (HL). In that case holding the Railway Board at fault and liable in allow-ing the
fence in a broken down condition having regard to the dangerous nature of the live rail
and its perils for a small child, the court ruled that if the presence of the trespasser was
known to or reasonably to be anticipated by the occupier, then the occupier did owe to
the trespasser a duty to treat him with ordinary humanity which was a lower and less
onerous duty than a general duty of care or the common duty of care owed to lawful
visitors. However, an occupier owed no duty to the unknown merely possible trespasser
as such a person could not be called a “neighbour” in the sense that word was used in
Donoghue v Stevenson (1932 AC 562).
Thus if the presence of the trespasser is unknown or expected the occupier should not do
a dangerous act in disregard of the presence of the trespasser there, or must give a due
warning of the same. In
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Law of Torts
Mourton v Poulter (1920) 2 KB 183, the defendant was felling an elm tree near which
some children were known to be present. The defendant did not warn the children when
the last root was cut and the plaintiff, child of ten, was injured by the tree. It was held that
though the plaintiff was a trespasser the defendant was liable because he had failed to
give reasonable warning of the imminent danger to him.
Herrington’s care influenced the enactment of the Occupiers Liabili-ty Act, 1984 which
imposes duty towards trespassers if the fol-lowing conditions are satisfied: (a) the
occupier should have knowledge of the existence of the danger on his land, (b) that the
entrant is in the vicinity of danger, and (c) the risk is such that it can be reasonably
expected that the occupier should provide him some help. It is yet to be seen whether the
courts in India will follow the principles laid down in Herrington’s case or whether they
will follow the principles of the English Act of 1984. However, the result in either of the
cases would not be much different. The Errington’s case was considered in Kumari Alka
v Union of India (AIR 1993 Del 267). A very liberal view has been taken in Revill v
Naubery (1996) 1 All ER 291(CA). In that case, a person shooting at a trespasser who
was trying to enter for burglary was held liable to the extent of two-third. He had
exceeded the right of private defence.
(3)
Obligation Towards Children
If the children are trespassers the only duty of the landowner is not to injure them
intentionally, or to put dangerous traps for them intending to injure them. He is under no
liability if in trespassing, they injure themselves on objects legitimately on his land, viz. a
heap of stones [Latham v R.Johnson & Nephew Ltd. (1913) 1 KB 398]. To make a
landowner liable for injury to children on his land, it must be proved that he expressly or
impliedly invited them on to his land, and either did an act which caused damage with
knowledge that it might injure them, or knowingly permitted the existence on his land of
a hidden danger or trap.
According to the Occupiers Liability Act, 1957, an occupier must be prepared for the
children to be less careful than adults. What is obvious danger for an adult may be a trap
for the children. Moreover the children may be allured by certain dangerous objects
which the
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Occupier’s Liability for Dangerous Premises
adults may like to avoid. Thus there is a duty “not merely to dig pitfalls for them, but not
to lead them into temptation.”
In Glasgow Corpn. v Taylor (1922) 1 AC 44, the defendants who controlled a public park
were held liable for the death of a seven-year old child who had picked and eaten some
attractive looking but otherwise poisonous berries from a shrub in the park, because the
defendants neither gave sufficient warning intellig-ible to the children nor did they
properly fence that part where the shrub was.
In Phipps v Rochester Corpn. (1955) 1 QB 450, the plaintiff, a child aged five, went with
his sister aged seven, to an open space on a building site of the defendants and there the
plain-tiff fell down in an open trench and broke the leg. The defen-dants were held not
liable for there was no reason to suppose that children of tender age will be allowed to
wander over the site unaccompanied by a proper guardian. But this rule will not apply to
a case where, to the knowledge of the occupier, little children are permitted by their
parents to go unaccompanied in the reasonable belief that they would be safe, e.g. a
recognized playground.
The question of reasonable care in a given case depends upon all the circumstances of the
case and “one of the circumstances is the age and intelligence of the entrant” [Titchener v
British Rly. Board (1983) 3 All ER 770 (HL)].
Page 326
14
Remedies in Torts
Remedies for torts are of two kinds: Judicial and Extra judi-cial. Judicial remedies are
those which are afforded by the act of law, viz. (1) awarding of damages; (2) granting of
injunction; and (3) restitution of property. Extra-judicial remedies are those which are
available to a party in certain cases of torts by his own acts alone, viz. expulsion of a
trespasser, re-entry on land, recaption of goods, distress damage feasant, abatement of
nuisance.
Judicial remedies: [1] Damages
Damages is the most important remedy which the plaintiff can avail of after the tort is
committed. Damages are the pecuniary compensation which the law awards to a person
for the injury he has sustained by the wrongful act of another. They are designed not only
as a compensation to the injured person, but likewise as a punishment to the guilty to
deter him from any such act in the future. An action for damages raises three questions:
(i) was the damage caused by the defendant’s wrongful act;
(ii)
was it remote and (iii) what should be the amount of compensation.
Measure of Damages: Restitutio in integram1
The expression “measure of damages” means the scale or rule by reference to which the
amount of damages to be recovered is, in any given case, to be assessed. Damages may
arise to almost any amount,
____________________
1.
‘The basic principle for the measure of damages in tort as well as in contract is
that there should be restitutio in integram'. Explain and comment. [I.A.S.-97]
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Remedies in Torts
or they may dwindle down to being merely nominal. The law has not laid down what
shall be the measure of damages in actions of tort; the measure is vague and uncertain,
depending upon a vast variety of causes, facts and circumstances. In case of criminal
conversion, battery, imprisonment, slander, malicious prosecution, etc., the state, degree,
quality, trade or profes-sion of the party injured, as well as of the person who did the
injury, must be, and generally are, considered by a jury in giving damages [Huckle v
Money (1763) 2 Wilson 205].
The common law says that the damages due either for breach of contract or for tort are
damages which, so far as money can compensate, will give the injured party reparation
for the wrong-ful act. If there be any special damage which is attributable to the wrongful
act, that special damage must be averred and proved. This is the principle of restitutio in
integrant which was de-scribed by Lord Wright as “the dominant rule of law” [Liesbosch
Dredger v Edison S.S. (1933) AC 449].
Restitutio in integrant means restoration to the previous posi-tion. The general rule is that
in fixing the sum to be given as damages the court should as nearly as possible get at that
sum of money which will put the aggrieved party in the same position as he would have
been in, if he had not sustained the wrong for which he is getting the compensation. Thus
if A has damaged by his negligent driving B’s car, which cost B Rs. 50,000, A will be
compelled to pay Rs. 50,000 or less the value of depreciation so as to enable B to
purchase another car of the same type and model.
But in many cases the amount of compensation granted by the court will not be exactly
the same as required to replace the plainti-ff’s loss. The court may award the plaintiff an
amount which it thinks a ‘fair and adequate’ compensation for the plaintiff’s injury. In
such cases, it is purely compensation and not restitu-tion. In Moss v Christchurch R.D.C.
(1925) 2 KB 750, M owned a cottage which he had let to X on weekly tenancy. It was
almost completely destroyed by fire caused by a spark from the defen-dant’s steam roller
which was held to be a nuisance. In an action by M it was held that the measure of
damages was not the fair cost of rebuilding the cottage but the difference between the
money value of M’s interest before and after the fire.
Thus, the law does not aim at restitution but compensation. Restitution is seldom, if at all,
really possible and the law provides only for notional restitution i.e. restitution as nearly
as may be by award of
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Law of Torts
compensation. This is specially so when the plaintiff is compensated for non-pecuniary
damage such as pain and suffering. Where a wrong has been committed the wrong-doer
must suffer from the impossibility of accurately ascertaining the amount of damag-es.
But the plaintiff must give the best evidence to prove damag-es [.Joseph v Shew Bux
(1918) 21 Bom LR 615 PC]. If damage has resulted from two or more causes, as from an
act of God as well as a negligent act of the party, then the award of damages should be
apportioned to compensate only the injury caused by the negligent act.
Kinds of Damages
There are four kinds of damages: (1) contemptuous, (2) nominal, (3) ordinary, and (4)
exemplary.
(1)
Contemptuous Damages
Such damages are awarded when it is considered that an action should never have been
brought. The amount awarded is very tri-fling because the court forms a very low opinion
of the plainti-ff’s claim and thinks that the plaintiff although has suffered greater loss,
does not deserve to be fully compensated as there is no moral justification for it. For
example, the reason for the defendant’s battery against the plaintiff is found to be some
offensive remark by the plaintiff.
(2)
Nominal Damages
When there has been infringement of the plaintiff’s legal right but he has suffered no loss
thereby (injuria sine damno) the law awards him nominal damages in recognition of his
right. The sum awarded may be nominal, say, one or two rupees. For example, in cases of
infringement of absolute rights of personal security (e.g. assault) and property (e.g. bare
trespass, invasion of a right of easement, etc.).
(3)
Ordinary Damages
Also called ‘substantial’ or ‘compensatory’ damages, these are awarded where it is
necessary to compensate the plaintiff fairly for the injury he has in fact sustained. The
sum awarded may be large or small, equivalent to the harm suffered by the plaintiff. The
plaintiff’s own estimate is regarded as the maximum limit. Such damages are called
‘compensatory’ as they compensate the plaintiff rather than punish the wrong-doer i.e.
‘punitive’.
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Remedies in Torts
When the plaintiff’s injury is aggravated by the conduct and motives of the defendant,
e.g. when he has acted in a highhanded manner, wilfully or maliciously, the damages may
be correspond-ingly increased. But the damages so increased or ‘aggravated' are really
compensatory and fall in the class of ordinary damages.2
(4)
Exemplary Damages3
When the damages awarded are in excess of the material loss su-ffered by the plaintiff
with a view to prevent similar behaviour in future, the damages are known as
‘‘exemplary, punitive or vindictive’’. Such damages are not compensatory in nature, they
are rather by way of punishment to the defendant. Such damages are awarded wherever
the wrong or injury is of a grievous na-ture, done with a high hand, or is accompanied
with a deliberate intention to injure and abuse, e.g. gross defamation, seduction of a
man’s daughter, malicious prosecution, unconstitutional action (viz. wrongful arrest), or
when the industry which causes injury is hazardous or inherently dangerous.
In such cases the injury done is so grave and of so reprehensible a character that it is next
to impossible to measure damages by any strict numerical rule. The object of giving
exemplary damages is to make a public example of the defendant to deter all others from
the commission of similar act. Exemplary damages were al-lowed in a libel action where
the publisher had no genuine belief in the truth of the matter and did not take steps to
remove suspicion about its untruth [John v MGN Ltd. (1996) 2 All ER 35 (CA)]. In Bhim
Singh v State of J&K (AIR 1986 SC 494), the Su-preme Court awarded exemplary
damages when there was wrongful detention by the State. In Sebastain M.Hongary v
Union of India (AIR 1984 SC 1026), the two persons having been killed in deten-tion, the
court awarded Rs. 1 lac as exemplary damages.
Lord Devlin in Rookes v Barnard (1964) AC 1129, expressed that the object of
exemplary damages, being to deter and punish the awar-dee of such damages, “confuses
the civil and criminal function of law.”
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2.
Where damages cannot be precisely calculated in terms of money, the court may
take into account the motives and conduct of the defendant, and where these aggravate
the plaintiffs injury the damages will be correspondingly increased.[I.A.S.-2001]
3.
When do the courts award exemplary damages in an action for tort?
[I.A.S.-93]
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Further, such damages can be allowed only in the following three cases: (a) oppressive,
arbitrary or unconstitutional action of the government or its servants, (b) where the
defendant’s con-duct has been calculated by him to make a profit for himself which may
well exceed the compensation payable to the plaintiff, and (c) where exemplary damages
are expressly authorised by the statute. Exemplary damages can properly be awarded
whenever it is necessary to teach a wrong-doer that the tort does not pay.
Prospective and Continuing Damages
Prospective or ‘future’ damages means compensation for damages which is quite likely
result of the defendant’s wrongful act but which was not actually resulted at the time of
decision of the case. For example, if a person has been crippled in an accident the
damages to be awarded to him may not only include the loss suffered by him up to the
date of the action but also future likely damage to him in respect of that disability, viz.
effects on capacity to work, enjoyment of his normal life, etc.
“Damages when given are taken to embrace all the injurious conse-quences of the
wrongful act, unknown as well as known, which may arise hereafter, as well as those
which have arisen, so that the right of action is satisfied by one recovery.” In other words,
damages resulting from the same cause of action must be recovered at one and the same
time (once for all) as more than one action will not lie for the same cause of action. If a
person is beaten or wounded, and he sues, he must sue for all his damages - past, present,
and future. He cannot maintain an action for a broken arm and subsequently for a broken
rib, though he did not know of it when he commenced the action4 [.Fetter v Beale (1701)
1 Ld Raym 339]. The plaintiff should be compensated for every prospec-tive loss which
would naturally result from the defendant’s conduct, but not for merely problematical
damages that may possi-bly happen, but probably will not.
A ‘fresh’ action cannot be brought unless there is both a new unlawful act and fresh
damage. Where the cause of action is a ‘continuing’ one (viz. an action for a continuing
trespass), a fresh cause of action arises every day; and it is open to the plaintiff to bring
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4.
Similarly, if a person is injured in a railway accident, and recovers substantial
damages from the company and subsequently disease of the brain or the spine develops,
which is solely due to the accident, he cannot bring a second action, or claim further
damages in the first action.
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fresh action. Further, if the same wrongful act violates two rights, ‘successive' actions
may be brought in respect of each of them. Thus if a person sustains two injuries from a
blow, one to his person and another to his property, as for instance damage to a watch, he
can maintain two actions in respect of that one blow. An action for malicious prosecution
could be brought notwithstanding the recovery of damages in a previous action for false
imprisonment arising out of the same transaction because the cause of action were
perfectly distinct and different [Guest v Warren (1854) 9 Ex 379].
General and Special Damages
General damages are those which the law will imply in every violation of a legal right.
They need not be proved by evidence. They arise by inference of law even though no
pecuniary loss can be shown. Whenever the defendant violates any absolute legal right of
the plaintiff general damages to at least a nominal amount will be implied [Ashby v
White (1704) 2 Ld Raym 938].
Special damages are such as the law will not infer from the nature of the act complained
of. They must be claimed on the pleadings and proved at the trial. The expression
“special dam-age” denotes the actual and temporal loss which has, in fact, occurred. Such
damage is called variously “express loss”, “par-ticular damage”, “damage in fact”, etc.
For example, in actions brought for a public nuisance, such as the obstruction of a river or
a highway, “special damage” denotes that actual and particular loss which the plaintiff
must allege and prove that he has sustained beyond what is sustained by the general
public [Ratcliffe v Evans (1892) 2 QB 524],
The aforesaid distinction between general damages and special damages is based on the
substantive law distinction between torts actionable per se and torts not actionable
without actual or special damage to the plaintiff. In Halsbury’s Laws of England (Vol.
24, 3rd ed., paras 222- 224), a list of examples of the two types of damages is given as
below: General - (a) mere injury to the feelings, (b) the illness of the plaintiff, not being a
natural result of the wrongful act, (c) the illness or death of any other person, (d) the mere
loss of the society of acquaintances, as contrasted with the material loss of hospitality, (e)
any damage not pecuniary or capable of being estimated in money.
Special - (a) loss of consortium of husband, (b) loss of marriage, (c) loss of material
hospitality, (d) loss of employment, (e) loss of dealing,
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even though it might have turned out unprofita-ble, (f) loss of particular customers, (g)
general falling off of profits, (h) any other material loss.
Thus in an action for false imprisonment, general damages are recoverable in respect of
the inconvenience, indignity and dis-comfort so suffered by the plaintiff; for these are the
natural and normal results which the law presumes to follow from any injury of this
description. But if the plaintiff has by his imprisonment incurred medical expenses or has
suffered any spe-cial pecuniary loss such as loss of wages, this is special damage which
must be proved, otherwise compensation cannot be recovered in respect of it.
Damages for Personal Injury
Personal injuries may cause pecuniary loss or non-pecuniary loss. Pain and suffering
including mental agony, loss of amenities, and expectation of life are ‘non-pecuniary’
losses whereas expenses including medical care and loss of earnings are examples of
‘pecuniary' losses. If there is probable future loss of income by reason of incapacity or
diminished capacity of work, damages for the same are also recoverable.
Quantification of damages for non-pecuniary damage such as pain and suffering and loss
of amenities presents great difficulties. The courts have evolved certain rules: (1) The
amount of compensation awarded muse be reasonable and must be assessed with
moderation, (2) Regard must be had to awards made in comparable cases, and (3) The
sums awarded must to a considerable extent be conventional.
The determination of the quantum may require a test as to what contemporary society
would deem to be a fair sum such as would allow the wrong-doer to hold up his head
among his neighbours and say with their approval that he has done the fair thing; or in
other words what a Lok Adalat would award in a similar case [Lado v U.P. Electricity
Board, Hindustan Times, 17/12/87 (SC)]. The amount awarded must be liberal and not
niggardly since the law values life and limb in a free society in generous scales [Hardeo
Kaur v Rajasthan State Road Transport Corpn. AIR 1992 SC 1261]. All this only means
that the sum awarded must be fair and reasonable by accepted legal standards and all
elements requiring consideration must be viewed with objective standards [Hattangadi v
M/ s. Pest Control India Pvt. Ltd. AIR 1995 SC 755].
Loss of earnings constitutes an important pecuniary loss for which compensation is
allowed. The date of trial is the appro-priate date on
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which to determine (a) the actual loss of earnings arising up to that date and (b) the future
loss of earnings (loss of future working life) based on a multiplicant and multiplier. The
estimate of the award for the loss of earning capacity has to be somewhat speculative and
the court has to do its best on the facts of each case. In addition to the damages allowed
under various heads, the plaintiff may be allowed interest (at the rate of 6% p.a.) on the
damages from the date of his filing the petition or suit till the date of payment of
compensation.
Assessment of the Value of Dependency
How to assess the loss to any dependant5 in the event of death of a person, and award
him compensation which will make good that loss has invariably posed a problem before
the courts.
According to the Interest theory, the dependants may be paid such lump sum the interest
from which would be equivalent to the loss suffered by them. In other words, it has to be
seen as to how much interest a certain amount will bring if invested in a fixed deposit.
This theory cannot work well in practice firstly because due to erosion in value of money
in course of time specific amount of interest may not suffice to cover future loss, and
secondly, due to illiteracy and ignorance, the claimant may not be in a position to plan a
sound investment of compensation received.
According to the Multiplier theory the likely future loss is assessed by multiplying the
likely future loss due to occur every year with a multiplier, which indicates the number of
years for which the loss is likely to continue. For instance, if the loss to the dependants is
Rs. 1,500 per month, it may be capitalised for 15 years, and damages amounting to
Rs.2,70,000 may be paid to the dependants. The age of the deceased and the dependants
may be the factors which may be taken into account in selecting the multiplier. A
multiplier of 16-18 is generally used for the deceased between the age group of 20-35. A
low multiplier is used for the higher age-group (viz. 4 for the age of 60 years).
In view of the lump sum payment of compensation, in some cases deduction of 10-25%
has sometimes been made because of uncertainties of life like the deceased or the
dependant dying earlier than expected. On
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5.
A claim under the (Indian) Fatal Accidents Act, 1855, can be made only on behalf
of certain heirs, i.e. the wife, husband, parent or child. No action can be brought by the
brothers and sisters of the deceased.
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the death of a person his dependants may sometimes receive certain payment like
gratuity, family pension, provident fund, insurance money, etc. Such receipts are not to
be deducted from the compensation payable. The reason for not allowing such amounts to
be deducted from compensation is firstly, the deceased may have paid premiums to
secure such benefits and he never intended that the tortfeasor should derive the benefits
thereof, and secondly, some of the payments may have been received by the deceased or
the dependants even if the death as at present had not occurred [Fateh Singh v State of
U.P., 1985 ACJ 363 (All)].
Even when the deceased was not earning anything, the dependants can claim
compensation (viz. for monetary loss incurred in replacing services rendered by his wife
gratuitously).
When Damages are Irrecoverable
Damages are irrecoverable in the following four classes of cases:
(i)
Cases of damnum sine injuria (no damages without injury), viz. competition in
trade, etc.
(ii)
Damnum suffered by one person and injuria by another. The defendant is not
liable for his act to the plaintiff for the reason that no duty is owed to the latter.
In Cattle v Stockton Waterworks Co. (1875 LR 10 QB 453), the plaintiff had undertaken
to construct a tunnel in the X’s land. The defendant who was the owner of the adjoining
land, in carrying out certain waterworks there, negligently allowed Water to overflow
over X’s land with the result that the plaintiff had to incur excessive costs to construct the
tunnel. The plaintiff failed in his action to recover additional expenditure from the
defendant. An occupier of premises owes duty only to the owner and occupier of
adjoining premises and not to a stranger contractor who has come upon the neighbouring
land for doing some work which he had contracted to do there and who has no greater
interest on the land.
(iii)
Damnum of a kind not recognised by law. Thus under English common law no
damages can be recovered for the death of human being. Again, when the plaintiff’s
cause of action is based on the provisions of some statute, it is not enough that the
plaintiff has suffered damages as a result of the breach of any statutory provision, it is
also necessary that the plaintiff should have been one of those persons whom the statute
has intended to afford protection by its enactment.
(iv)
Damnum too remote.
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[2]
Injunctions
An injunction is an order of a Court restraining the commission, repetition, or
continuance, of a wrongful act of the defendant. In cases of torts a court interferes by
injunction: (1) to prevent the infringement or disturbance of a right, (2) for the purpose of
better enforcing rights or preventing mischief until such rights have been ascertained, and
(3) where the remedy of damages would be inadequate or practically worthless.
Thus an injunction may be granted to prevent trespass, or the continuance of a nuisance,
to right of way, to markets; or the infringement of copyrights and trademarks; or the
publication of a libel or the uttering of a slander; or the disclosure of confi-dential
communications; or the wrongful sale or detention of a chattel; etc. To entitle a party to
an injunction he must prove either damage or apprehended damage; the latter must
involve imminent danger of a substantial kind (quia timet) or injury that will be
irreparable or very serious, or continuous or frequently repeated. The court has the
discretion to grant or refuse injunction and when remedy by way of damages is a
sufficient relief injunction will not be granted.
[3]
Specific Restitution of property
When the plaintiff has been wrongfully dispossessed of his mova-ble and immovable
property, the court may order that the specific property should be restored back to the
plaintiff. Recovery of land can be made by an action for ejectment and the recovery of
chattels by an action for detinue.
Extra-Judicial Remedies
Extra-judicial remedies are those which are available to a party, in certain cases of torts,
outside the court of law, i.e. by his own act alone or self-help. They are mainly the
following: (1) Expulsion of trespasser
(2)
Re-entry on land (3) Re-caption of chattels (4) Abatement of nuisance
(5)
Distress damage feasant.
[Note: These remedies have been discussed in detail elsewhere in the present book.]