TODAY'S AN LL.B. STUDENT IS TOMORROW!S AN ADVOCATE 7 JUDGE / PROFESSOR - GVR
SgjfITHfl LAW SERIES
A.
ANSWERS TO IMPORTANT QUESTIONS
B.
SHORT NOTES
C.
SOLUTIONS TO PROBLEMS
D.
MINI / SHORT QUESTIONS / FILL UP THE BLANKS FOR
THE INTERNAL EXAMS
[ACCORDING TO THE NEW SYLLABUS & NEW EXAMINATION PATTERN]
SUBJECT
(THE
OF TORTS +)
THE ]SfflTOR VEHICLETaCT. 1988
^REL^ANT PROVISIONS)
(For LL.B., B.A. LL.B., B.B.A. LL.B., B.Com., LL.B., B.Sc. LL.B. etc.)
[Unit -1
Nature of Law of Torts;
Parties to the Proceedings;
Specific Torts;
Defamation, Negligence, etc., and
Extinction of Liability &
Motor Accidents, Motor Accidents Tribunals under
Unit - II
Unit - III
Unit - IV
Unit - V - A
Unit - V - B
The Motor Vehicle Act, 1988 (Relevant Provisions)
By
GADE VEERA REDDY,
B.A., B.Sc., LL.B., M.A., M.B.A. (LL.M.)
(Recipient of 5 Goldmedals in Law) (K.U.)
Kothi, Hyderabad-500 095.
SUJfiTHfi LAW BOOKS m LTD.
(PUBLISHERS & SELLERS)
Registered Office: 4-5-201 & 202, Third Floor,
Hasmath Gunj, Sultan Bazar, Kothi, Hyderabad - 500 095, T.S.
SELLERS
SajfiTH^ LfiW BOOKS 8
SU]BTHB GENERAL REGISTERS
® : 040-24753947
T.S.: 4-5-212, Vijayasree Building,
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Besides Metro Market, Visalandhra Road,,
Vijayawada - 520 010, A.P. - 7995040300
Wh. Cell: 89770 00030
Wh. Cell: 96527 64933 for the Students.
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website : sujathalawseries.com
SaifiTKfi UIW SERIES (OPC) PVT. LTD.
ISBN-81-7072-063-2 I
CRs. 400-00)
THE LAW OF TORTS AND THE MOTOR VEHICLES ACT, 1958, and each oftheSUJATHA LAW BOOKS will be
helpful to the student, not only in studying the LL.B., B.A. LL.B., B.B.A; LL.B., B.Com., LL.B., B.Sc. LL.B. etc.
but also in competitive examinations and career until 15-20 years. Therefore, every student must preserve
this book in his safe custody, and each of the SUJATHA LAW SERIES. NEITHER LEND NOR BORROW NOR
EXCHANGE ANY BOOK, PARTICULARLY SUJATHA LAW SERIES. “Vanitha Wham Potham Para Hastam
Para Gataha”.
PAPER - IV : LAW OF TORTS
Unit-1:
of Torts - Development of
Law of Torts in England and India - Wrongful Act and legal damage - Damnum
Sine Injuria and injuria Sine Damnum - Tort distinguished from Crime and Breach
of Contract - General Principles of tortuous liability - Fault - Wrongful intent Malice - Negligence - Liability without fault - Statutory liability.
Nature of Law of Torts - Definition of Torts - Elements
Unit-II:
Parties to proceedings - General Defences - Vicarious liability - The Liability of
State for Torts - Defence of Sovereign Immunity - Joint Liability -Liability of Joint
Tortfeasors - Ru|e of Strict Liability {Rylands vs Fletcher) - Rule of Absolute
Liability {MC Mehta vs. Union of India) - Occupiers liability.
Unit - III:
Specific Torts : Torts affecting persons - Assault - Battery - False Imprisonment Malicious Prosecution - Nervous Shock. Torts affecting Immovable Property Trespass to land - Nuisance - Public Nuisance and Private Nuisance - Torts relating
to movable property
Unit-IV:
Defamation - Negligence - Torts against Business Relations - Injurious falsehoodNegligent Misstatement - Passing off - Conspiracy - Torts affecting family
relations.
Unit-V:
Extinction of liability - Waiver and Acquiescence - Release - Accord and
Satisfaction - Death. Death in relation to tort - Actio Personalis Moritur Cum
Persona. Remedies - Judicial and Extra-judicial Remedies - Damages - Kinds of
damages - Assessment of Damages - Remoteness of damage - Injunctions.
Liability arising out of accidents (Relevant provisions of the Motor Vehicles Act).
Suggested Readings:
1.
Winfield & Jolowicz; Law of Tort, Xll edition, Sweet and Maxwell, London , 1984.
2.
Salmond and Houston ; Law of Torts, XX edition, 2nd Indian reprint. Universal Book traders.
New Delhi, 1994.
3.
Ramaswamy Iyer: The Law of Torts, VII edition (Bombay, 1995).
4.
Achutan Pillai: Law of Tort, VIII edition. Eastern Book Company, Luncknow, 1987.
5.
Durga Das Basu: The Law of Torts, 10th edition, Prentice Hall of India, New Delhi, 1998.
6.
Ratan Lai & Dhirajial: r/?e Law of Torfs, 22nd edition, Wadhwa & Company Nagpur, 1992.
7.
R.K.Bangia: Law of Torts, 14"" edition, Allahabad Law Agency, Allahabad, 1999.
8.
J.N.Pandey: Law of Torts, 1st edition Central Law Publications, Allahabad, 1999.
9.
Vivienne Harpwood: Law of Torts, 1st edition, Cavandish Publishing Ltd. London, 1993.
10. Hepple & Mathews: Tort - Cases and Materials, 2nd edition, Butterworth, London, 1980.
11.
The Motor Vehicles Act.
THE LAW OF TORTS AND THE MOTOR VEHICLES ACT, 1988 has been introduced in the SECOND
SEMESTER of B.A. LL.B. (5-YDC) and as PAPER-IV in the THIRD SEMESTER of B.B.A. LL.B. & B. Sc.
LL.B. (5-YDC) by the BAR COUNCIL OF INDIA with the approval of the UNIVERSITY GRANTS
COMMISSION AND LAW COMMISSION OF INDIA and prescribed the FIVE-UNIT-WISE SYLLABUS.
PREFACE
Dear Student!
The syllabus and the list of case-laws prescribed by the Osmania University, according to the Law
Commission of India, the Bar Council of India and the University Grants Commission, with
effect from the academic year 2000-2001 is given in the 2nd Page of the Title Pages. More or less the
similar syllabus has been prescribed by the majority Universities, except with certain variations, especially
in the prescribed case-laws.
At that time, the pattern of question paper was different and was very easy to pass. Ten Essay
Questions were asked in each of the subjects for 100 marks, and the student was to answer any
Five Questions. Out of ten questions, one or two questions were Short Notes (in short SNs).
Generally Four short notes in a question were asked and choice was given to write any two of them.
In the old system, the syllabus of each subject was divided into Five Units. From each Unit, two
Essay Questions were asked, and the Student was to answer any one of them, i.e., the student was
to answer Five Questions out of ten.
,
In that old pattern question paper, student had plenty of choice. If he perfectly read and prepared
half of the prescribed syllabus, and repeated questions, he could answer easily Five Questions,
and happily would have passed the examination, and even got more than first class marks. If the
student concentrates on all the Units, he would get highest marks, and even gold medals. As passing
the LL.B. Examinations was very easy, a large number of students were not attending the classes.
This affected on the quality of legal education.
India observed all these defects, and opined
that the legal education was not up to the standard and to their satisfaction to fulfill the legal necessities
of the country. To overhaul the system, after several discussions and perusing several Committees’
Reports, the Law Commission and the Bar Council of India evolved a new concept of examining
the students, so that every student should be thorough in every subject. The Law Commission
directed all the Universities to adopt this new concept of examination, with effect from 2000-2001
academic year. Majority of the Universities has put this new concept in practice. The Osmania University
and some other Universities have adopted this new concept with effect from 2007. This new concept
is in practice in majority of the Universities.
The Law Commission of India and the Bar Council of
New Examination Pattern/Concept: According to this new system/pattern/concept, the student
is examined in two wavs:—
(i)
Internal Examinations
20 Marks.
(ii)
End Examinations/University Examinations,
80 Marks.
(i) Internal Examinations: Two internals are conducted for each subject, each having 10 marks
- totally 20 marks. The first internal for 10 marks shall be conducted in the middle of the Semester,
and, the first half of the subject is asked by way of mini questions, fill up the blanks, objective
type, match the following, etc. At the end of the Semester, the second internal for 10 marks shall
be conducted, and the remaining half of the subject is asked,
(ii) End Examinations/Universitv Examinations: At the end of each semester, the University
conducts the End/Examinations/University Examinations forthe subjects prescribed for that semester,
for 80 marks. The student should get at least 32 Marks out of 80 marks in each subject. The internal
and end examinations marks are clubbed to notify the Distinction, first class and second class (Pass
or Fail).
End Examination Question Paper Pattern: According to this new examination pattern, the Question
Paper is divided into three Parts, i.e., Part-A, Part-B, and Part-C, consisting totally 16 questions.
Part-A consists eight short-note questions.
Each Short Note carries six marks.
The student has to answer any five short notes.
Total marks for
Part-B consists four Essay Questions.
Part-A are ^ (5 SNs. x 6 Marks = 30 Marks).
The student has to answer any two.
Each question carries
Fifteen marks (2 Qns. x 15 Marks = 30 Marks)
Part-C consists four PROBLEMS.
The student has to answer any two.
Each Problem carries ten
marks (2 Qns. x 10 marks = 20 Marks).
The object of the Law Commission of India and the Bar Council of India is that the student must be
thorough in each of the subjects, and that he should attend the college very regularly.
This new concept/pattern and question paper is newto the Osmania University. This type of Question
Papers are being given in Andhra University, Sri Venkateswaraya University, Sri Krishnadevaraya
(i)
University, Kamraj University, Bangalore University, Pune University, etc., from the last seven or eight
years with slight variations, according to the guidelines and instructions of the Law Commission of
India and the Bar Council of India.
This new model question paper and examination system is new to the Osmania Universitystudents,
already adopted since November, 2007, i.e., with the First Semester of LL.B. 2007-08 academic
year.
In fact, according to the new examination pattern, the law student is equipped with full knowledge in all
the subjects prescribed, if he studies well. Otherwise, he cannot pass in the Internal and External/
End/University examinations. The new system also makes the students for compulsory attendance
of the classes.
Notice and compare the previous and present question papers. At present, by mere writing/answering
two essay questions, a student cannot secure pass marks. Previously 9 to 10 Essay Questions
were asked (comprising 90% to 100% of the Question Paper). Now the number of Essay Questions
has been strictly reduced to four, i.e., only 40%.
Previously 4 Short Notes (SNs), which were equal to one essay question, giving choice to write any
two, were given in the examination. Now the number of Short Notes has been increased to eight,
i.e., an increase of 40%, in a separate Part, i.e., Part-A, and making the student compulsorily write
them.
Each Short Note should not exceed 80 words.
Previously the Problems were not given by the majority of the Universities. A few Universities, viz.,
Delhi University, Pune University, Andhra University, Bangalore University, Gulbarga University, etc.,
were giving a few problems as a part of the essay questions.
Now Problems are being given in a separate Part, i.e., Part-C. Problems may be asked from any
corner. Similarly Short Notes may also be asked from any corner of the subject. If the student does
not study entire subject, he may not be in a position to answer/solve the problems/short notes.
For the new Pattern of Examinations, I give a few guidelines:—
Essay Questions and Short Notes: I have received several letters and requests from the students
asking me to write separate notes/books on Essay Questions and Short Notes. I would like to answer
such students that there is no necessary to study separate books for essay questions and short
notes.
Kindly observe the previous question papers of different Universities given under each topic. By perusing
these questions, one can easily understand that an essay question may be asked as a short note, and
a short note may be asked as an essay question. For Example: Absolute Liability or Strict Liability
may be asked as a short note, as well as an essay question and even as a problem.
There is no problem for me and for my publishers to write and publish two separate books for essay
questions and short notes. However, it cuts the pocket of the students unnecessarily.
In this connection, I would like to bring an incident happened in the life of Sir Isaac Newton. No doubt,
he was a great Scientist and intellectual person. He cannot be compared with any other scientist. He
propounded so many physical formulas, which are not challenged till now. However, he was careless
in day-to-day life. Newton was working in his room with heavy concentration in the closed doors
room. Qne cat with its kitten used to enter into the room, whenever the doors were open. When they
wanted to go out, and if the doors were closed, they used to make nuisance in the room disturbing him.
Newton called his servant and instructed him to make two holes in the wall, one’s size was big, and
another’s size was small, so that the cat and its kitten could come and go easily. The servant did it. A
friend came to visit Newton and found two holes in the wall. He asked Newton what would be the
purpose of two holes. Newton told him that the big hole was for cat, and small one was for its kitten.
The friend told to Newton when the big hole could be sufficient for cat and its kitten, why should be the
second small one. Newton surprised to note this point and told his friend that this idea was not struck
to his brain. This incident reveals that common sense is different with that of scientific and technical
knowledge. The same principle applies for Essay Questions and Short Notes. If a student is thorough
in Essay, he could easily write the short note also.
Instructions to write short notes:
The student first must be thorough , in the subject.
He must
improve the quality of precise writing. For this purpose, he has to improve his knowledge and skillness
in the English Grammar. Thus he should improve his English grammar knowledge, and particularly
sentence framing. He should also practise perfect and speed hand-writing. If he improves these
qualities, he can reduce/concise the essay matter into a Short-Note consisting 80 to 100 words very
easily, just like cat and kitten can go through a single hole. Remember! Short-Note answers take less
time, but fetch more marks than the Essay Questions. Therefore, there is no necessary to publish
another book on Short Notes. The present book itself is sufficient for both the purposes.
(ii)
i
N
Essays may also be asked as full questions, half questions or even short-notes (SNs). Therefore, I
have not given answers for Short Notes separately. Every topic in our Notes contains sufficient material.
The student has to concise the material for Short Note (SN), Half Question, Problem, Essay, etc.,
depending upon the nature of the question asked in the examination. If a person/woman has hairs on
the head, he/she can decorate several ways beautifully and conveniently. A bald head person has no
chance. 1 mean to say that the person who studies this material perfectly since the beginning, he can
answer perfectly any question of any type in the examination.
Further, 1 would like to tell you that these Notes are not comparable with the text books or guides or
with any other material, either on the question of matter or on the question of price. Because, each of
Suiatha Law Series contains unique characteristics. It contains Sections, Exceptions, Explanations
and illustrations, important points, case-laws, quotations, legal maxims, definitions, differences between
two Concepts in Tabular Forms, etc. It is all-in-one.
Each of Suiatha Law Series contains Answers to Short Notes and Essay Questions, Problems and
Solutions, and Mini Questions/Fili Up the Blanks to meet the requirements of the Internal and External
Examinations.
It is all-in-one.
Since the beginning, Suiatha Law Series have occupied a prominent place in the law students’
community throughout India. From time to time, the students, lecturers, professors, principals and
book-sellers have been giving their co-operation and suggestions in increasing the sales and bringing
them to a satisfied .standard. Several Students, Lecturers, and Professors have sent previous question
papers and suggestions from all corners of the country. It helped me a lot to improve the quality of the
notes. At the same time, it also helps the students’ community to answer correctly in the examination
hall. Thousands of the students wrote me letters appreciating these Notes. Some of them are given
at the last pages of these Notes.
I sent awards and thanking letters to them, who made the constructive remarks and sent the previous
question papers. However, I am extremely sorry I could not give reply to every student, due to busy in
writing the books. I express my gratitude to all them who sent their appreciation, remarks and
suggestions. I have given separate cell phone number and timings, and also e-mail address to the
students in this book. I have also given Feed Back Form along with these Notes, The interested
student can use them and contact me.
I received certain remarks from a few students that the Notes in Sujatha Law Series have become
voluminous. I too accept. I have been giving the abstract of each Notes, i.e., total number of pages,
words, case-laws, topics, etc., at the last page. We have been fixing the price each page @ 60 np or
70 np per foolscap page in keeping the students’ buying capacity. If you compare other books, the
price will be @ Rs. 1.00 or more per demy/royal size paper.. Compare the price of that book not only
with price, but also the matter/number of words and size of the paper. For example, Contract-1 of
Sujatha Law Series contains 184 pages and 1,50,000/- the price is fixed at Rs. 120/-. Contract-1
contains Answeis to Short Notes and Essay Questions, Problems and Solutions, and Mini Questions/
Fill Up the Blanks, containing 204 case-laws, 85 Problems. You can observe Contract-1 of any other
series, you can find only 20,000 to 30,000 words in 200 demy/royal size pages, but at the rate of Rs.
180/- to Rs. 225/-. Such books can be useful for one-day match only.
Also compare ourSerieswith other books, with the questions of the Previous Question Papers. In our
series, you will find 80 to 90 percent, often cent per cent, answers in our Notes. Our Series will meet
the changed question pattern system also, if studied completely.
Thus, I would like to tell that Sujatha Law Series are not comparable with the text books or guides or
with any other material. Each of Sujatha Law Series contains unique characteristics. It contains
Sections, illustrations, important points, case-laws, including prescribed and leading cases, quotations,
definitions, tables showing the differences between two Concepts, etc. Each Topic is answered to the
previous questions. As far as possible the prescribed leading and latest case-laws are given in every
“Enhanced & Revised” Notes.
It is ALL-IN-ONE.
Generally in most of the text books, the brief
facts of the case-laws are not given, but only principles are.given. An average student cannot understand
the Section with the help of principle. A practising advocate, with his experience, can easily understand
the principles and case-laws, given under the foot-note of the Text Books arid Reference Books. In all
most all the reference books of law, brief facts of the case-law are not given. The advocate refers
such case-laws with AIR, SCC, Supreme To-day, ALT CrLJ, Crimes, etc. In the journals, each case
contains at least 10 to 100 pages, or more. From the point of time and expenditure view, it is not
possible for a law student to procure the material for all the important and prescribed case-laws from
such books and for all the subjects within a Semester.
The student has to concise the material from text book.
(Hi)
n
However, I have given all the prescribed case-laws prescribed by O.U., K.U., N.U. and some other
Universities. Besides the prescribed case-laws, I have also given the important case-laws and incidents
up to the revising and publishing the concerned subject.
Each Book of Sujatha Law Series contains an average of one lakh fifty thousand to one lakh
eighty thousand words. This book contains the words as noted on the backside of the Title Page, At
the same time, the price is very low. The rate depends upon the number of pages and material given.
Whenever the subject demands, automatically the material is enhanced and number of pages are
increased. According to the new common core syllabus for entire India, I am compelled to explain
every topic with a number of case-laws, ingredients of Sections, important points, etc. Hence the
number of pages has been increasing according to the nature and demand of the subject. In fact,
each Book contains the material half of the text book, but having relevant material and topics keeping
in view of the examinations. But the rate of each Book is
«
only one-bv-fourth of the text book. I request
the students to assess quality, quantity of the material of Sujatha Law Series and other materials.
“THE LAW OF TORTS AND THE MOTOR VEHICLES ACT, 1988 (WITH RELEVANT
PROVISIONS)” prescribed for 5-YDC LL.B. consist a vast syllabus. I have explained the concept of
these two Laws, and also I have given Sections with its illustrations, wherever necessary, and also
explained the case-laws.
Some of the students are writing letters that certain X-notes/guides are cheaper than Sujatha Law
Series. In fact, I need not explain for this question. However, I have already explained above about our
concept of fixing the prices of our books. Compare our books and those other books, with number of
pages, words, cases, important points, size of the paper, size of the letters and the number of answers,
etc.
Some of the students are writing letters that certain X-notes/guides contain lesser pages than Sujatha
Law Series, and are easy to read just before the examinations. The answer is also given in their
letters. Those X-notes/guides, having lesser pages, lesser material, may be useful to the students,
who do not study since the beginning of the semester, but only just before the examinations. Then
compare those books with the previous question papers. How many questions can be answered with
those books? How many questions can be answered with Sujatha Law Series? Decide yourself. A
student has to write 5,000 to 10,000 words in 3 hours (180 minutes) for each Paper/Subjectwith a
speed of 30 words to 60 words per minute. Each book of X notes/book contains 20,000 to 30,000
words. I too admit it is very easy to read such a book in one day. But the matter read in one day cannot
be memorized and cannot be produced in the examination, except those who are Eka Santaarahis
(having memory just by one reading). It is also not possible in the legal subjects. It is also not possible
In the changed system of new syllabus and new examination pattern.
1.
Vast Subject: Each Subject of LL.B. is very vast. Time is less. Questions may be asked from
any corner. Question Paper pattern is also changed. The student has to study entire subject
and has to concentrate more on the important lessons, particularly case-laws. Sections,
illustrations, etc., of each subject.
2.
M
Writing Speed: The examiner does not see the face of the examinee. The examiner sees the
answer script, i.e., writing of the student. The student might have studied entire subject and
has thorough memory. It is not sufficient. The relevant matter should be presented on paper
within the time prescribed Syllabus. I personally know some of the brilliant students failed
in
the written examinations due to lack of time-sense and lack of writing speed. For this purpose,
the student should practise some time convenient to him/her for writing everyday. Remember:
Writing Speed is more important besides Reading and Memory.
3.
Legible Writing: Writing must be legible, clear and with punctuation marks. Follow the grammar
principles. You must observe that 16 lines should be maintained in each page. Give sufficient
space on left, upper and lower sides. Don’t write congested. There must be sufficient gap
between the words and lines. Your answer sheets must give a good look and impression.
Clumsy writing, strikings, additions, deletions, etc., would lessen the impression on the
examinee.
4.
Habituate reading Newspaper every day: Collect the Information, statistics, judgments of
the Supreme Court and the concerned State High Court, incidents, etc., and record in the
concerned subject book, SLS, or in a separate book. If you analyse and write the latest issue
and case in your answer, it enhances the validity and
5.
marks.
Division of Time: Three hours, i.e., 180 minutes time is given for each subject. Every
minute is very important and valuable in the examination hall. The student should first
divide time for each part and each question according to the natureand marks of such questions.
The Highest Time should be allotted to the Essay Questions. The Lowest Time available should
be allotted to the Short-Note Questions. The average time shall be allotted to the Problem
Questions. I give a rough allotment of time as follows
(iv)
Ji
Examination Time : 10 a.m. to 1 p.m.
>
from 10.00 a.m. to 10.05 a.m.
5 minutes
1st Short Note
from 10.05 a.m. to 10.17 a.m.
12 minutes
2nd Short Note
from 10.17 a.m. to 10.29 a.m.
12 minutes
3rd Short Note
from 10.29 a.m. to 10.41 a.m.
12 minutes
4th Short Note
from 10.41 a.m. to 10.53 a.m.
12 minutes
5th Short Note
from 10.53 a.m. to 11.05 a.m.
12 minutes
1st Essay Question
from 11.05 a.m. to 11.40 a.m.
35 minutes
2nd Essay Question
from 11.40 a.m. to 12.15p.m.
35 minutes
1 st Problem
from 12.15 p.m. to 12.35 p.m.
20 minutes
2nd Problem
from 12.35 p.m. to 12.55 p.m.
20 minutes
Verification of Papers,Tagging, etc.
from 12.55 p.m. to
Reading of Question Paper.
PART -A (Short Note Questions)
(60 Minutes = 12 Minutes each x 5 SNs.)
PART - B (Essay Questions)
(70 minutes = 35 minutes each x 2 EQns.)
PART - C (Probiem Questions)
(40 minutes = 20 minutes each x 2 PQns.)
1.00 p.m.
5 minutes
180 minutes
Totai Time
Examination Time : 2.00 p.m. to 5.00 p.m.
from
2.00 p.m.
to
2.05 p.m.
5 minutes
1st Short Note
from
2.05 p.m.
to
2.17 p.m.
12 minutes
2nd Short Note
from
2.17 p.m.
to
2.29 p.m.
12 minutes
3rd Short Note
from
2.29 p.m.
to
2.41 p.m.
12 minutes
4th Short Note
from
2.41 p.m.
to
2.53 p.m.
12 minutes
5th Short Note
from
2.53 p.m.
to
3.05 p.m.
12 minutes
1st Essay Question
from
3.05 p.m.
to
3.40 p.m.
35 minutes
2nd Essay Question
from
3.40 p.m.
to
4.15 p.m.
35 minutes
1 st Problem
from
4.15 p.m.
to
4.35 p.m.
20 minutes
2nd Problem
from
4.35 p.m.
to
4.55 p.m.
20 minutes
Verification of Papers, Tagging, etc.
from
4.55 p.m.
to
5.00 p.m.
5 minutes
Reading of Question Paper.
PART - A (Short Note Questions)
(60 Minutes = 12 Minutes each x 5 SNs.)
PART - B (Essay Questions)
(70 minutes = 35 minutes each x 2 EQns.)
PART - C (Problem Questions)
(40 minutes = 20 minutes each x 2 PQns.)
180 minutes
Total Time
While writing each answer the student must keep the time in mind, and should not excess the time
allotted. Practice is required to follow this time-table in the examination hall. However at the beginning,
10% to 20% margin may occur for each question. By practice only, the time can be controlled.
Some students mis-estimate the time and involve in writing a question without looking the time for
other questions. For example, a student may write a short note for twenty or twenty five minutes, or
an
essay question for 50 or 60 minutes. This disturbs the time of other questions. At the last, the
time will not sufficient to write other questions. Even if he writes the remaining questions at the end of
the examination time, he has to adjust itiatter and time. Due to this, certainly he is confused and
forgets the matter. Tension is created in the mind. The result is lesser marks and niay yield to
failure.
To avoid this clumsy position, it is the best way to prepare the time-table as above. The above time
table is only for guidelines. You have to prepare according to the nature of the examination, nature of
the questions, total time given in the examination, etc.
It is not compulsory to write the answers numerically. It is the choice of the student to write the
answers according to his convenience.
(V)
5. PROBLEMS: As said above, now four Problems are given
in Part-C, out of which the student
has to answer any two of them. The Law is a social subject. It is not possible to score 80 to 100%
marks in social subjects. It is easy to get 100% marks in the mathematics. It is not easy to get 100%
marks in social subjects, including law.
However, answering to problems gives good scoring of marks, like sums in the mathematics. If the
problems are solved and answered correctly 100% marks, i.e., 20 out of 20 marks can be awarded.
The Problems are based on Case-Laws, Acts, Sections, illustrations, etc. The Law of Torts is
formed by the decisions of the Courts. The majority of the problems are given basing upon the caselaws, Sections and illustrations. If the student memorizes the case-laws, Sections and illustrations,
he can perfectly solve the problems, and can get the highest marks. Case-laws are very easy to
memorize and to write in the examination. They are just like Chandamama stories.
I have already given Problems with solutions in this book. Under the title of every case, I have given
tips/hints on which the case-law is concerned. Moreover, I have given the Cases, containing tips/
hints. You need not read all the cases all the days. If you read this book one time, and later, you can
take the assistance of the Table of Cases, with hints just go through the cases. In that way you can
memorize the case-laws along with their tips. This will be helpful to you in the examination hall.
I have compiled all the Topics and Sub-Topics according to the Syllabus and Units. In fact in the
changed examination pattern, there is no necessary to follow the Unit System. But it becomes very
easy to trace the subject, topics, sub-topics, short notes, problems, etc. Hence I have followed the
Unit System. In this connection, I would like to give a precaution to the students that the student must
be thorough the first half portion before the first internal
examination.
EXAMPLE:
—
PROBLEM: A, a voter, approached to the Polling Both to vote in connection with the Assembly
Elections. B, the Polling Officer, restrainedA and refused him to give the vote. The candidate ,to
whom A wanted to give his vote, won the elections. Is there any damage to A? Advise A.
(Dec., 2004, B.U.) (AnI., 2004, P.U.) (May, 2003, A.U.)
SOLUTiON: Even though no physical or economical injury was caused to A, As right to vote was
.
damaged by B’s wrongful act under the Doctrine of “Injuria Sine Damnum” which
means
“Vioiation of a iegal right without causing any harm, loss or damage to the plaintiff’ Hence
A is entitled to sue B.
Meaning:
injuria,
=
legal injury (not ordinary injury).
sine.
=
without.
damnum.
-
damage.
Injuria sine damno” means “Violation of a legal right
damage to the plaintiff’.
without causing any harm, loss or
Examples:
(a)
Trespass: Trespass to another’s land does not cause any harm, loss or damage to the
plaintiff. However, his right of privacy and personal rights are affected by the trespass of the
defendant. Hence trespass to land is actionable even though no damage has been caused as a
result of the trespass,
(b) Defamation: If A makes a defamatory statement against B, there
damage to B.
is no actual harm lessor
In these cases, the plaintiff need not prove that he suffered harm, loss or damage by the wrongful
act or wrongful omission of the defendant. It is sufficient to prove that his legal right was violated
by the defendant. These are actionable perse, i.e., actionable without the proof of any damage
or loss. This is one class of torts. Defamation, trespass, etc., come under this category. In the
second class of torts, the plaintiff is entitled for compensation on the proof of some actual harm
loss or damage by the wrongful act or wrongful omission of the defendant. Negligence nuisance’
etc., come under this category. “Injuria sine damno” refers to the first class of torts above
mentioned.
CONTEXT: The above given problem is identical with # Ashby vs. White (1073) 1 E.R. 417)
which is a leading and prescribed case-law for “Injuria Sine Damnum”.
(Vi)
CASE LAW;
#Ashby vs. White (1073) 1 E.R. 417)
(Damage without Injury)
Brief Facts: It is a leading case explaining the maxim “Injuria sine damno”. The plaintiff was a
qualified voter at a Parliamentary election. The defendant was a returning officer. The defendant
wrongfully refused to take plaintiffs vote. In fact, the candidate to whom the plaintiff wanted to
vote, won in the election. There was no actual damage suffered by the plaintiff. The plaintiff sued
the defendant alleging that the defendant did a wrongful act by restraining him not to vote.
JUDGMENT: The Court of Appeal held that the defendant was liable, and granted compensation
to the plaintiff. The Chief Justice, Holt, Court of Appeal observed: 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.”
Principle laid down: The Court of Appeal laid down the principle as follows: ‘‘Every injury
imports a damage, though it does not cost the party one farthing. For a damage not merely
pecuniary but an injury imports a damage, when a person is thereby hindered ofhis right. As in an
action for sianderous words, though a man does not lose a penny by reason of speaking them,
yet he shaii have an action. So, if a man gives another a cuff on the ea,r though it cost him
nothing, not so much as a little diachylon (plaster) yet he shall have his action, for it is a personal
injury. So a man shall have an action against another for riding over his ground; though it does
him no damage: for it is an invasion of his property, and the others has no right to come there. ”
Iri this Example, there are about 1000 words (including the Problem). The student need not write the
problem in the answer sheet. It consumes the time. It is sufficient to write the Question Number/
Problem Number and then write the answer as explained above. The answer can be reduced or
enhanced depending upon the examinee’s capability in writing speed and memory. The student shall
have to give headings and underlines as shown above. Even in the paragraphs, the important
Sections, matter. Act, etc., may be, underlined. Whether the answer is lengthy or shorter, the answer/
solution to the Problem based questions, if solved correctly and perfectly (like shown above), the
examinee gets full marks like in mathematics.
PRECAUTION: Before attending Part-C, the student must read all the four problems slowly and
understand the concept, case-law or illustration and legal issue inherent in each of them. Then
only decide two problems to attend in the exams. Further, before writing solution of a Problem, the
student must read that Problem at least two or three times, come to a conclusion, and confirm it, and
then start to write.
SHORT NOTES: The student has to write five short notes. While writing each short note, he must
be careful in maintaining the matter, quantity and quality of the matter. Remember! An essay may be
asked as a short note. If you go on writing a short note as an essay, it automatically consumes the
precious time in the examination. You must write the
answer in not more than 80 words for each
short note.
WRITING PRACTICE: The student should possess capacity in writing the same matter/material as
a short note within the prescribed limit of words, or as an essay. If necessary to write a short note, the
matter/material should be concised. If necessary to write an essay, the matter/material should be
enlarged with relevant matter. Act, Section, illustration, case-law, if any. Therefore, the student must
practise writing every day.
ENGLISH GRAMMAR. COMMUNICATION SKILLS & COMPUTER TECHNOLOGY: The English
grammar and communication skills are necessary (i) to pass in the LL.B. (English Medium), and (ii) to
practise in the Courts (Drafting and Pleadings, and Arguments). Due to globalisation, employment
opportunities have grown tremendously. Out Sourcing In the legal profession has been growing
Therefore, the student should concentrate
and educate himself the English Grammar, Communication Skills and computer knowledge every
providing employment and money to the budding advocates.
day during and after the studying the LL.B. Degree.
ADVICE TO VERNACULAR STUDENTS: Every student, who studied Inter and/or Graduation in
vernacular/mother language, he should purchase one English-English-Vernacular Dictionary and
ainother Legal Dictionary (English-English-Vernacular). Start reading Sujatha Law Series or any text
book in English medium. Write the meanings of the words and the legal terms from the first page to
the last page of each subject. If practise it regularly, you can acquire the knowledge with the English
and Legal Terms before the last semester. Do not read the legal subjects in vernacular languages.
English is only used in the lower Courts, High Courts and the Supreme Court. Even outsourcing of
the legal profession is coming through English only from the Western countries.
(vii)
SUJATHALAW SERIES: Aecording to the old question paper setting, I had prepared “Sujatha Law
Series” “Answers to Important Questions”. The students throughout the country received SLS
wholeheartedly, as each of the Notes consists the best of the best material.
According to the new pattern of question paper setting, I have prepared “Sujatha Law Series”
“Answers to the Important Questions. Short Notes and Solutions to the Problems” for the End
Exams/UnIversIty Exams Including the “Mlnl/Short Questlons/FIII Up the Blanks with Answers”
for the Internal Exams”. So, now each of the SLS Revised and enhanced Notes is an “ALL-INONE” for Internal and End Examinations.
Note: The student should read/study each subject completely since the very beginning of each
Semester. Then only he could answer perfectly entire subject in internal and end examinations, and
get the highest marks.
Request: I request the Users/Readers of SLS Notes to kindly send the Previous Question Papers
(English and Hindi) (Original/Xerox) of LL.B. (3-YDC & 5-YDC), Syllabus of LL.B., Judicial and
Competitive Examinations. I also request the sender to write the University name, and month and
year of the examinations on the question papers. Kindly write your name, address, mobile number, email, if any, clearly.
BITS IN THE INTERNAL EXAMS: There shall be two Internals, ten marks for each internal, totally
20 marks for each subject in every semester. In Internal, fill up the blanks, objective type questions,
match the following, etc., are asked. I did not give objective type questions, match the following,
because they occupy too much space and consumes a large number of pages. This imposes
unriecessary burden upon the students’ pocket. Hence, I have prepared Mlnl/Short Questions and
Fill Up the Blanks with Answers for each subject. If the student memorizes a bit, i.e., fill up the
blanks, he can acquire knowledge on that particular point, and he wiii be in a position to answer any
type of questions, whether it may be a fill up the blank or objective question or any other bit type
question. I also advise the students to attend the classes regularly to acquire more knowledge and
also marks.
BEWARE OF THE INTERNALS!
Do not neglect the internals. The internals are the ABSTRACT of the entire subject, i.e., THE
LAW OF TORTS AND THE MOTOR VEHICLES ACT, 1988. If you read and remember the mini/
short questions and fill up the blanks with answers, you can have a thorough knowledge of the
entire subject, and you can answer any type of questions. First you must read the concept, i.e.,
subject-matter of aii the concerned Topics, and then you must read the internals. At the first
instance, the internals^ wiii be useful in the first internal and the second internal of each subject.
At the time of the University Examinations, you need not study entire concept/subject, but to
refer to the internals. By referring the internals, you can refresh your memory. Therefore, you
need not worry and tension about the University Examinations.
SHORT/MINI QUESTIONS AND FILL UP THE BLANKS WILL ALSO HELPFUL
STUDENTS FOR REFRESHING ENTIRE SUBJECT IN THE EXAMINATION HALL
TO THE
AND TO
GET HIGHEST MARKS.
BEFORE THE EXAMINATION DATE, YOU MUST REFRESH YOUR MEMORY BY READING
AND REFRESHING THE SHORT/MINI QUESTIONS AND FILL UP THE BLANKS OF EACH
SUBJECT, entire SUBJECT SHOULD BE IN YOUR MEMORY AND
GRIP.
Even after completing your course, the internals will be useful to you.
After completing your 5-YDC/3-YDC course, as the case may be, you have to appearforthe BAR
COUNCIL ENROLMENT EXAMINATION, which are conducted by objective question pattern
For the BAR COUNCIL ENRQLMENT EXAMINATION also Sujatha
Law Series will be useful.
To write the PGLCET/LL.M. Entrance Test, the internals studied in the LL.B. course will be
useful. To write the Public Prosecutors’ Test/Judicial Tests also the internals studied in the
LL.B. course will be useful.
While practising the profession aiso, the internals studied in the LL.B. course will be useful.
THE LAW OF TORTS AND THE MOTOR VEHICLES ACT, 1988, and each of the SUJATHA
LAW SERIES will be helpful to the students, not only in studying the LL.B., B.A. LL.B., B.B.A.
LL.B., B.Com. LL.B., B.Sc. LL.B., etc., but also for the Bar Council Enrolment Examination and
other competitive examinations and career until 15-20 years. Therefore every student, who
(viii)
purchased SUJATHALAW SERIES, must preserve this book in his safe custody, and each of the
SUJATHA LAW SERIES. NEITHER LEND NOR BORROW, NOR EXCHANGE ANY BOOK,
PARTICULARLY SUJATHA LAW SERIES, and frequently refresh the material with the aid of the
internals. Kindly notice that your investment is smaiier, but returns and advantages are
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between 8-00 p.m. to 9-00 p.m.) or e-mail qadeveerareddv@vahoo.c om.
If you want to purchase by post any book, kindly place the order with Sri Gade Narasimha
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Previously 10 Essay Questions and a few short notes were asked. Now the eighty marks,paper is
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THE LAW OF TORTS AND THE MOTOR VEHICLES ACT, 1988
- SajflTHfl [LSK? SERIES / NOTES
Page No.
Para &
Error/Misprint
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Line No.
printed as
I
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(X)
THE LAW OF TORTS AND THE MOTOR VEHICLES
ACT, 1988 (WITH RELEVANT PROVISIONS)
CONTENTS
SI.
Page
Subject
No.
No.
UNIT - I
NATURE OF THE LAW OF TORTS
1.A
NATURE OF LAW OF TORTS - MEANING, CONCEPT AND
DEFINITION OF TORTS.
1.B.
Definition of ‘Tort’ and the nature of this branch of law.
1
‘Law does not impose liability for mere omissions only.”— Explain.
1
COMPARISON BETWEEN WINFIELD AND SALMOND. (SN)
2
Frederick Pollock. (SN)
2
Sir A. Underhill. (SN)
3
ESSENTIAL ELEMENTS / CONDITIONS OF TORT
3
The Elements of Torts.
Discussion about the statement that “Law of Torts” is concerned with the
question of liability.
.
-
- -
3
- -
‘‘Tortuous liability arises from the breach of a duty primarily fixed by law; this duty,
is towards persons generally and its breach is redressible by an action for
bf
unliquidated damages.” — Discuss.
3
^
‘‘It is perhaps impossible to give an exact definition of ‘a
Tort’ or ‘the law of tort’
or ‘tortuous liability’, and, as a corollary it is certainly impossible to give a
definition which will satisfy every theorist who has taken any interest in the
Topic.”— Comment the Statement.
'
3
Some jurists are of the view that there is no law of Tort, but only “Law of Torts”.
Discuss this as per your own opinion.
.
-
-
Describe briefly the mental elements required to fix tortuous liability.
3
# Municipal Corporation of Delhi vs. Subhagwanti (AIR 1966 SC 1750). (SN)
4
REMEDY OF LEGAL DAMAGES. (SN)
1.C.
3
- ^
.
.
.
.
5
DEVELOPMENT OF LAW OF TORTS IN ENGLAND AND INDIA
5
The development of Law of Torts in England.
Do you feel that the development of Law of Torts in
India is slow? If so, state
the reasons.
Discuss the origin and development of the Law of Torts
1.D.
5
in India.
‘‘The birth place of Law of Torts is England.” — Explain this
n
5
;
5
Statement.
Ubi jus ibi remedium.
5
Development of Law of Torts in England. (SN)
5
The Law of Torts in India. (SN)
5
Pilot Clouise Mittel Butchart vs. Oberoi International (1997)
8
WRONGFUL ACT AND LEGAL DAMAGE /
[Injuria sine damno & Damnum sine injuria]
Explain the maxims “Injuria sine damno’’and “Damnum sine injuria’’with
8
the help of important case-law.
‘‘There.mustbe injury as well as damage. Damage alone will notdo”.-.Explain.
(xi)
.
8
Distinction between Injuria sine damno and Damnum sine injuria.
8
Explain the maxim “Damnum Sine injuria” v\/\th reference
8
to decided cases.
Explain the statements “Damnum Sine injuria” and “Injuria
99
with reference to the decided cases.
8
Wrongful Act. (SN)
9
Legal Damage. (SN)
9
INJURIA SINE DAMNO. (SN)
9
Trespass. (SN)
9
Defamation. (SN)
9
# Ashby vs. White (1073) 1 E.R. 417). (SN)
9
# Bhim Singh vs. State of J.K. (AIR 1986 SC 494). (SN)
10
Exemplary Damages, (SN)
10
Banker’s Refusal. (SN)
10
# Marzetti vs. Williams (1830) 1 B&Ad 415). (SN)
10
Electronics Trade Ltd. Vs. Indian Technoiogist Pvt.
(AIR 1996 SC 2339). (SN)
I.E.
Sine Damnum
Ltd.
10
DAMNUM SINE INJURIA. (SN)
10
# Gioucester Grammar Schooi Case (1410 Y.B. HILL 11). (SN)
10
Moghui Steamship Co. vs. Me. Gregor Gow and Co. (1892 AC 25). (SN)
10
Chesmore vs. Richards (1859) 7 H.C.L. 349). (SN)
11
Acton vs. Biundeii (1848) 12 M & W 324). (SN)
11
Town Area Committee vs. Prabhu Dayai (AIR 1975 All 132). (SN)
11
# Bradford Corporation (Mayor of) vs. Pickies (1895 A.C. 587). (SN)
11
# Eiectrochrome Ltd, vs. Weish Plastics Ltd. (1968 2 AER 205) (SN)
11
DiSTINCTION BETWEEN THE TORTS AND THE CRiME
The difference between Tort and Crime with suitable examples.
12
Distinction between Tort’ from ‘Crime’ and ‘Breach of Contract’.
12
Distinction between Torts and Crime.
12
Distinction between “Tort” and “Contract”.
12
“Tort is a civil wrong.” Do you agree with the statement?
How does it differ
from crime?
12
“A Tort is a civil injury, but all civil injuries are
I.F.
not torts.
Discuss.
DISTINCTION OF TORTS AND BREACH OF CONTRACT.
Distinction between ‘Tort’ and ‘Breach of Contract’.
1.G
1.H.
12
13
DISTINCTION TORTS vs. TRUSTS AND OTHER EQUITABLE OBLIGATIONS
Distinction between ‘Tort’ and ‘Trusts and Other Equitable Obligations.
14
Distinction between Torts and Quasi-Contracts.
14
GENERAL PRiNCiPLES OF TORTUOUS LiABiLITY /
THEORiES OF LiABiLITY OF TORTS
Discuss the statement that “Law of Torts” is concerned with the question of
liability.
15
Some jurists are of the view that there is no law of Tort, but only “Law of Torts”.
Discuss this as per your own opinion.
15
(xii)
i
‘The Law of Tort is a system of establishing liability. ” — Comment. Explain the
foundation of tortuous liability.
15
Explain whether it is “a Law of Tort” or “Law of Torts”.
15
Discuss the general principles of liability in Tort.
15
“Fault has never been and is not today an essential element In tortuous liability.
— Critically examine this statement.
St.
Ubi jus ibi remedium” (There is no wrong without a remedy.) (SN)
“Lex non debet deficere conquerentibus in Justitia
he shall have the remedy.) (SN)
15
Is it the law of tort? (SN)
16
Is it the law of tort? (SN)
16
Rookes vs. Barnard” (1964). (SN)
16
Donoghue vs. Stevenson (1932 AC 562). (SN)
16
‘ibiJus ibi remedium’. (There is no wrong without a remedy). (SN)
16
Pigeon-hole Theory. (SN)
16
Chapman vs. Pickersgill” (1762) (2) Wils. 145). (SN)
16
Polluter Pays Principle. (SN)
17
FAULT
Explain the role of “Fault” in the Law of Torts.
18
Fault. (SN)
18
’Magna negligentia culpa est, magna culpa dolus est” (SN)
St,
1.J.
I.K.
15
exhibenda.”
(The law wills that in every case where a man is wronged and damaged,
1.1.
15
18
Strict Liability. (SN)
18
Rylands vs. Fletcher case. (SN)
18
Absolute Liability. (SN)
18
M.C. Mehta vs. Union of India (AIR 1987 SC 1087)
(Oleum Gas Leak Case). (SN)
18
MOTIVE
Under what circumstances motive is irrelevant? Explain.
20
Place of Motive in Torts. (SN)
20
Section 8 of the Indian Evidence Act, 1872. (SN)
20
Rajendra Kumar v. State of Punjab” (AIR 1966 SC 1322). (SN)
20
# Kirk vs. Gregory (1876) 1 Ex. D. 56). (SN)
20
Allen vs. Flood (1898 AC 1). (SN)
21
DIFFERENCE BETWEEN INTENTION AND MOTIVE. (SN)
21
MALICE / WRONGFUL INTENTION
What is Malice in Fact and Malice in Law? Is intention a relevant element?
Explain fully the elements of “malice” and “intention”
in the Law of Torts.
22
22
Wrongful Intent. (SN)
22
Malice. (SN)
22
Wrongful Intention. (SN)
22
Maiitia. (SN)
22
Kinds of Malice. (SN)
22
(xiii)
MALICE IN LAW. (SN)
22
Implied Malice. (SN)
22
Evii Motives, Express Maiice, Actuai Maiice, Improper Motives. (SN)
22
Malice in Law. (SN)
22
DISTiNCTiON BETWEEN MALiCE-iN-FACT & MALiCE-IN-LAW. (SN)
23
1.L
NEGLiGENCE
23
1.M.
LiABiLiTY WITHOUT FAULT / ACCIDENTS BY MOTOR VEHICLES,
1.N.
STATUTORY LIABILITY
ETC.
Statutory Liability. (SN)
24
“Salus populi est suprema lex.” (Regard for the public welfare
is the
highest law.) (SN)
24
Vaughan vs. Taff Valde Rail Co. (1860) 5 H&N 679). (SN)
24
Assault done by a Government officer during his legal
powers. (SN)
exercising
24
Hammersmith Rail Co. vs. Brand (1869, L.R.H. 171). (SN)
24
Smith vs. London & South Western Railway Co. (1870, LR 6 CP). (SN)
# Metropolitan Asylum District vs. Hills (1881) 6 A.C. 193). (SN)
1.0.
I.P.
23
25
25
FOREIGN TORTS
Foreign Torts. (SN)
25
Machado vs. Fontes (1897) 2 QB 231). (SN)
25
Chaplin vs. Boys (1971 AC 356). (SN)
25
MiSCELLANEOUS TORTS AND DOUBTFUL TORTS - FRANCHISE
Doubtful Tort. (SN)
26
Miscellaneous Torts and Doubtful Torts. (SN)
26
Franchise. (SN)
26
Ashby vs. White. (SN)
26
Nominai Damages. (SN)
26
Toil Gates. (SN)
26
Parking Charges. (SN)
26
Bridgland vs. Shapter (1839) 5 M&W 375). (SN)
26
Abuse of Quasi-Judicial Powers. (SN)
26
X Ltd, vs. Morgan-Grampian (Publishers) Ltd. (1991 AC 1). (SN)
Breach of Contracts is the Grand Residuai Category of the
Civii Wrongs. (SN)
26
26
INTERNALS - UNIT - I - NATURE OF TORTS
27-36
UNIT - II
PARTIES TO THE PROCEEDINGS
2.A
PARTIES TO THE PROCEEDINGS.
2.A
(i) PERSONAL CAPACITY / “Every person has the capacity to
and be sued in tort.
sue
99
“All persons have the capacity to sue and be sued in tort. This, however, is a
general rule and is subject to modification in respect of certain categories
of persons.” Examine this statement with respect to,—
(i) a Minor; and (ii) a Lunatic. ;
__
(xiv)
37
Various exceptions to the rule that everyone can be
sued in tort.
“All persons are entitled to sue and are liable to be sued in tort.”
this statement and state the exceptions, if any to this statement.
37
Examine
Sovereign Immunity. (SN)
38
Ambassadors. (SN)
38
The Vienna Convention on Diplomatic Relations, 1961. (SN)
38
Former Rulers of Indian Territory. (SN)
38
' 38
Unincorporated Associations. (SN)
2.A
2.A.
Trade Unions. (SN)
38
Insolvent. (SN)
38
Highway Authorities. (SN)
38
S. Vedantacharya vs. Highway Department of South Arcot
(1987) 3 see 400). (SN)
39
Dr. C. B. Singh vs. The Cantonment Board, Agra (1974 ACJ 248). (SN)
39
Minors and Lunatics. (SN)
39
Wife and Husband. (SN)
39
Alien Enemies and Convicts. (SN)
39
Joint Tortfeasors. (SN)
39
(ii). CORPORATION
Corporation. (SN)
39
Campbell vs. Paddington Corporation (1911) 1 K.B. 869). (SN)
39
Union Carbide Corporation vs. UOI (1991) 4 SCC 584). (SN)
39
M.C. Mehta vs. UOI (AIR 1987 SC 965). (SN)
39
(iii). MINORS AND LUNATICS
40
Minors. (SN)
2.A
37
Mohiribibi vs. Dharmodas” (1903). (SN)
40
The Congenital Disabilities (Civil Liabilities) Act, 1976”. (SN)
40
Tortuous Liability of Minors. (SN)
40
Tillandervs. Gosselln (1967 ACJ 306). (SN)
40
Me Hale vs. Watson (1966) 115 CLR 199). (SN)
40
Swaroopkishore vs. Gowardhandas (1955 MB 355). (SN)
41
# Burnard vs. Haggis (1863) 14 CBNS 45). (SN)
41
Gibson vs. O’Keeney (1928 Nl 66). (SN)
41
Bebee vs. Sales (1916) 32 TLR413). (SN)
41
O’Brien vs. Mcnamee (1953) Lr.R. 86). (SN)
41
LUNATICS. (SN)
42
Insanity is a Defence in Tort. (SN)
42
(Iv). ALIEN ENEMIES AND CONVICTS
Alien Enemies. (SN)
42
Convicts. (SN)
42
D.B.M. Patnaik vs. State of A.P. (AIR 1974 SC 2092). (SN)
43
Suk Das vs. Union Territory of Arunachal Pradesh (1986) 25 SCC 401). (SN)
43
(XV)
Kishore Singh vs. State of Rajasthan (AIR 1981 SC 625). (SN)
43
Articles 20 and 22 of the Constitution of India. (SN).
43
2.B.
GENERAL DEFENCES TO AN ACTION IN TORTS
2.B.
(a) GENERAL DEFENCES AND JUSTIFICATION OF TORTS
The General Defences to an action in Torts?
43
Justification of Torts. (SN)
43
Enumerate and Examine the General Defences to an action in tort.
43
Plaintiff-the Wrong-doer. (SN)
44
tf
Nullus commodum capere potest de injuria sua propria.” (SN)
44
Ex turpi causa non oritur action” (SN)
44
ti
Private Defence. (SN)
44
Ramanuja Mudali vs. M. Gangah (AIR 1984 Mad. 103). (SN)
45
Collins vs. Renison (1 Sayer 138). (SN)
45
Mistake. (SN)
45
Ignorantia facti excusat, ignorantiaJuris non excusat.” (SN)
2.B.
45
Parental and Quasi-Parental Authority. (SN)
45
Dilatory Plea/Defence/Dilatoriness. (SN)
45
(b) VOLENTI NON FIT INJURIA
What is meant by ‘Volenti non fit injuria'? Is it a good defence?
DIFFERENCE BETWEEN ‘VOLENTI’AND ‘SCIENTI’. (SN)
'
46
^
46
# Hall vs. Brooklands Auto Racing Club (1933) 1 KB 205). (SN)
47
Phillip Joel Hughes, Australian Batman (died on 27-11-2014). (SN)
47
Wooldrige vs. Summer (1963) 2 QB 43). (SN)
47
lllot vs. Wilkes (1820) 3 B & Aid. 304. (SN)
47
DISTINCTION BETWEEN VOLENTI NON FIT INJURIA AND
2.B.
2.B.
CONTRIBUTORY NEGLIGENCE. (SN)
48
Limitation to Volenti Non Fit Injuria. (SN)
48
# Smith vs. Baker (1891 AC 325). (SN)
48
# Lane vs. Holloway (1967) 3 All ER 129 CA). (SN)
48
Rescue Cases. (SN)
49
# Haynes vs. Harwood (1935) 1 K.B. 146). (SN)
49
Statutes. (SN)
49
(c) INEVITABLE ACCIDENT/UNAVOIDABLE ACCIDENT
Write a note on Inevitable Accident.
50
Inevitable Accident. (SN)
50
# Stanley vs. Powell (1891) 11 Q.B. 86). (SN)
50
Brown vs. Kendall (1850) 6 Cush. 292). (SN)
50
# Fardon vs. Harcourt-Rivington (1932) 48 TLR 215). (SN)
51
National Coal Board vs. Evans (1951) 2 K.B. 861). (SN)
51
Nitro-Glycerine Case (1872) 15 Wallace. 524). (SN)
51
(d) VIS MAJOR (ACT OF GOD)
What do you understand by an Act of God? How far is
Act of God. (SN)
it a valid defence?
51
51
(xvi)
Vis Major. (SN)
51
Nichols vs. Marsland (1876) 2 Ex.D.1). (SN)
52
Kallulal vs. Hemchand (AIR 1958 M. P. 48). (SN)
52
Ramalinga Nadar vs. Narayana Reddiar (AIR 1971 Ker. 197). (SN)
52
DISTINCTION BETWEEN AN INEVITABLE ACCIDENT AND AN ACT
52
OF GOD. (SN)
2.B.
(e). NECESSITY
Necessitas inducit privilegium quoad jura privata.” (SN)
53
Necessity gives a priviiege as to private rights.” (SN)
53
ts
“Salus populi supreme lex.” (The welfare of the people
2.B.
2.C.
supreme law.) (SN)
53
Necessity. (SN)
53
# Olga Tellis vs. Bombay Municipal Corporation (1985) 3 SCC 545). (SN)
53
Leigh vs. Gladstone (1909) 26 TLR 139). (SN)
53
Kirk vs. Gregory (1876) 1 Ex. D. 56). (SN)
54
Charter vs. Thomas (1891 QB 673). (SN)
54
(f) JUDICIAL ACTS
Judicial Acts. (SN)
54
The Judicial Officers’ Protection Act, 1850. (SN)
54
Pattabhi, the Senior Judge, arrested in Bail Scam Case. (SN)
54
Period of Limitation. (SN)
54
Letang vs. Cooper (1965) 1 QB 232). (SN)
54
JOINT LIABILITY / JOINT TORT-FEASOR
Explain the liability of joint tort feasors. What is
the rule of contribution
between them?
55
Examine the liability of Joint tort feasors.
55
Joint Tort-Feasor. (SN)
55
“The liability ofJoint tort-feasors is Joint and several.
►
is the
9f
55
Joint Liability. (SN)
55
Cutler vs. McPhail (1962) 2 QB 292). (SN)
55
Shiv Sagar Lai vs. Mata Din (AIR 1949 All. 105). (SN)
56
Ram Kumar vs. All Hussain (1909 ILR31 All. 173). (SN)
56
CONTRIBUTION. (SN)
56
Merryweather vs. Nixan (1799) 8 TR 186). (SN)
56
INDEMNITY. (SN)
56
Adamson vs. Jarvis (1827)4 Bimg. 66). (SN)
56
Khushalrao vs. Bapurao Ganpat Rao (AIR 1942 Nag. 52). (SN)
56
2.D.
VICARIOUS LIABILITY
2.D.
(1) VICARIOUS LIABILITY
“As a general rule, a man is liable for hiS own wrong, but in certain cases the
law imposes liability on a man for the acts and defaults of another.” - Discuss.
57
Explain vicarious liability and what are the modes by which vicarious liability
57
arises?
(xvii)
Explain the Doctrine of Vicarious Liability.
57
Explain under what circumstances a master is held liable for the tortious acts of
2.D.
his servants. When is he exempted from such liability?
57
Qui tacit per alium facit per se. (SN)
57
(ii) LIABILITY OF THE STATE FOR TORTS / ACT OF STATE
-
DEFENCE OF SOVEREIGN IMMUNITY
Vicarious liability of the State for the Torts committed by its servants.
58
Can a State Government be made responsible for the torts committed by their
servants?
58
Discuss the liability in Tort of the State Governments and the Government of India.
To what extent the State is responsible for the wrongs committed by its
servants in the course of their duties?
58
What do you understand by “Vicarious Liability”? Whether State
vicariously liable for the torts committed by its servants?
“The Law relating to the liability of the Government in
can be made
India for the torts
committed by the servants still continues to be unhappy
Comment with reference to the leading of the Supreme Court
58
■
and uncertain. ”
decisions.
58
What is the concept of “Rex non potest peccare” (The King can do no wrong)
in England and in India
58
Explain the defence of sovereign immunity in England
and India.
58
King can do no wrong. (SN)
58
Act of State. (SN)
58
Buron vs. Denman (1948) 2 Ex. 167). (SN)
Hardial Singh vs. State of Pepsu (AIR 1960 Punj. 644).
(SN)
59
State of Saurashtra vs. Memon Haji Ismail (AIR 1959 SC 1383). (SN)
DEFENCES OF SOVEREIGN IMMUNITY. (SN)
59
59
DISTINCTION BETWEEN “SOVEREIGN FUNCTIONS” AND
“NON-SOVEREIGN FUNCTIONS”.
60
Madrazo vs. Wjlles (3 B&Ald. 353). (SN)
60
Walker vs. Bajrd (1892 AC 491). (SN)
60
Morgan ys. Sea ward (2M&W 544). (SN)
60
PRESENT POSITION IN ENGLAND. (SN)
60
SOVEREIGN IMMUNITY - POSITION IN INDIA. (SN)
Peninsular and Oriental Steam Navigation Co. vs. Secretary
61
of State
(1861)5 Bom. HCRApp.1). (SN)
61
SOVEREIGN IMMUNITY - AFTER THE COMMENCEMENT OF
THE CONSTITUTION. (SN)
61
# State of Rajasthan vs. Vidhyawati (AIR 1962 SC 933).
61
(SN)
Kasturi Lai Balia Ram Jain (Appellant) vs. The State of U.P. (Respondent)
2.D.
(AIR 1965 SC 1039). (SN) '
62
# State of Gujarat vs. Memon Mahomed Haji Hasan (AIR 1967 SC 1885). (SN)
62
# Smt B.K.D. Patil vs. State of Mysore (AIR 1977 SC 1749): (SN)
62
Thangarajan vs. Union of India (AIR 1975 Mad 32). (SN)
63
(iii) VICARIOUS LIABILITY OF A MASTER FOR HIS SERVANT’S
TORTUOUS ACT
Examine the “Doctrine of Common Employment”. (SN)
(xviii)
63
i
y
What is “in the course of employment”? Discuss with the help of decided
.
case law.
Explain the law relating to the liability of the master for the acts of the servant.
63
Respondeat Superior. (SN)
63
Lloyd vs. Grace Smith and Co. (SN)
64
Qui per alium facitper seipsum facere videtur.” (SN)
64
In the course of employment”. (SN)
64
(S
ti
Morris vs. C.W. Martin & Sons Ltd. (1966) 1 QB 716). (SN)
64
Bayley vs. Manchester, Sheffield and Lincolnshire Railway
(1873 LR 8 CP 148). (SN)
65
Lending a servant to another person. (SN)
65
# Mersey Docks & Harbour Board vs. Coggins & Griffiths (Liverpool) Ltd.
(1947A.C. 1). (SN)
65
# Cassidy vs. Ministry of Health (1951) 2 KB 343). (SN)
65
When the employer is not held liable? (SN)
66
Williams vs. Jones (1885) 3 H&C 602). (SN)
66
Century Ins. Co. vs. Northern Ireland Road Transport
(1942 (1)AER 491 HL). (SN)
2.D.
63
. ^ -
Board
66
# State Bank of India vs. Shyama Devi (AIR 1978, SC 1263). (SN)
66
# Beard vs. London General Omnibus Co. (1900) 2 QB 530). (SN)
66
Baldeo Raj vs. Deowatt (AIR1976 MP 164). (SN)
66
independent contractor.(SN)
67
Giving lift to an unauthorised third party. (SN)
67
# Conway vs. George Wimpey and Co. Ltd. (1951)2 K.B. 266). (SN)
67
Premwatl vs. State of Rajasthan (AIR 1977 Raj. 116). (SN)
67
Prithi Singh vs. Binda Ram (AIR 1987 P & H 56). (SN)
67
THE DOCTRINE OF COMMON EMPLOYMENT. (SN)
67
Priestley vs. Fowler (1837), Hutchinston vs. York (1850),
Newcastle and Berwick Rail Co. (1850) Cases. (SN)
67
The Law Reform (Personal Injuries) Act 1948, in the United Kingdom. (SN)
67
Wilson and Clyde Coal Co. vs. English (1938 AC 57). (SN)
67
The scope of the Doctrine of Common Employment in India. (SN)
68
(iv) VICARIOUS LIABILITY OF A MASTER FOR HIS FOR HIS
INDEPENDENT
CONTRACTOR’S TORTUOUS ACT
DISTINCTON BETWEEM “SERVANT” AND “INDEPENDENT
CONTRACTOR”. Indicate the scope of Master’s liabiiity in each case.
68
Morgan vs. Incorporated Central Council (1936) 1 All E.R. 404). (SN)
69
Govindarajulu vs. M.L.A. Govindaraja Mudaliar (AIR 1966 Mad. 332). (SN)
69
GENERAL RULE - “Respondeat Superior”. {SH)
69
DIFFERENCES BETWEEN SERVANT AND INDEPENDENT
CONTRACTOR. (SN)
69
EXCEPTIONS to “Respondeat Superior”. (SN)
69
# Tarry vs. Ashton (1876) 1 QBD 314). (SN)
70
(xix)
2.E.
THE RULE OF STRICT LIABILITY (Rylands vs. Fletcher)
Explain the Doctrine of Strict Liability with the help of leading cases.
71
Explain the ‘Rule of Strict Liability’. Discuss the liability in Tort for wrongs
that may be committed through the agency of animals under his personal control.
71
Explain the ruie laid down in “Rylands vs. Fletcher”. What are the exceptions
to the rule?
71
Explain fuliy the Rule in Rylands vs. Fletcher. Discuss whether the liability is
absolute.
71
Critically state the principle of Rylands vs. Fletcher. Can the principle in any way
be applied to protect the environment from pollution?
71
Strict Liability. (SN)
71
Rylands vs. Fletcher (1868 LR 3 HL 330). (SN)
71
“Sic utere tuo ut aJienum non laedas”. (Enjoy your own property in such a
manner as not to injure that of another person.) (SN)
72
tt
2.F.
No Fault Liability” or “Strict Liability” evolved in
Rylands vs. Fletcher case. (SN)
72
What are the Exceptions to the Doctrine of Strict Liability? (SN)
72
Renting vs. Noakes (1894) 2 QB 281). (SN)
73
Nichols vs. Marsland (1875 LR 10 Ex 255). (SN)
73
Carstair vs. Taylor (1871) LR 6 Ex 217). (SN)
73
Richards vs. Lothian (1913 AC 263). (SN)
73
Green vs. Chelsea Waterworks Co. (1854) 2 QB 172). (SN)
73
Carriers. (SN)
73
THE ABSOLUTE LIABILITY (M.C. Mehta vs. UOI)
Explain the rule of “AbsoluteLiability”. Are there any exceptions recognized
to this Rule? Discuss with reference to the relevant case-law.
74
Explain and distinguish “Absolute” and “Strict” Liability. What is the position
in India?
74
Narrate in detail about the Absolute Liability. (SN)
74
Meaning of Absolute Liability. (SN)
74
DISTINCTION BETWEEN ABSOLUTE LiABILITYAND STRICT LIABILITY.
# Union Carbide Corporation vs. Union of India (1991) 4 SCC 584)
(SN)
74
(BHOPAL GAS LEAK CASE). (SN)
74
Anderson. (SN)
74
# M.C. Mehta vs. Union of India (AIR 1987 SC 965)
(OLEUM GAS LEAKAGE CASE). (SN)
74
Polluter Pays Principle, Precautionary Principle, Sustainable
2.Gl
Development, etc. (SN)
75
The Public Liability Insurance Act, 1991. (SN)
75
OCCUPIER’S LIABILITY FOR DANGEROUS PREMISES
To what extent is an occupier liable for dangerous premises?
Discuss the liability of an occupier of premises towards a person who
76
comes in
pursuance of a contract.
76
It is said that the liability of an occupier of premises
varied with the character of
the visitor. How are the visitors classified? What is the liability towards each?
Give illustrations.
76
(XX)
Occupier’s Liability for Dangerous Premises. (SN)
76
Occupiers’ Liability Act, 1957 (England). (SN)
76
LIABILITY TOWARDS LAWFUL VISITORS. (SN)
76
Indemnaur vs. Dames (1866) L.R. I.C.P).(SN)
76
LIABILITY TOWARDS LAWFUL LICENSEE. (SN)
77
Fairman vs. Perpetual Investment Building Society (1923 AC 74). (SN)
77
Roles vs. Nathan (1963) 1 W.LR. 1117). (SN)
77
LIABILITY OF THE OCCUPIERS OF STRUCTURES
ADJOINING HIGHWAY. (SN)
77
Kallulal vs. Hemchand (AIR 1958 Mad. 48). (SN)
77
Noble vs. Harrison (1926) 2 KB 332). (SN)
77
Nagamani vs. Corporation of Madras (AIR 1956 Mad. 59). (SN)
77
# Subhagwanti vs. Municipal Corporation (AIR 1966 SC 1750). (SN)
77
LIABILITY TOWARDS TRESPASSERS. (SN)
77
Mokshada Sundari vs. Union of India (AIR 1971 Cal. 480). (SN)
78
Lowery vs. Walker (1911 AC 10). (SN)
78
Mourton vs. Poulter (1930) 2 KB 183 191). (SN)
78
Cherubin vs. State of Bihar (AIR 1964 SC 205). (SN)
78
LIABILITIES TOWARDS CHILDREN. (SN)
78
# Glassgow Corporation vs. Taylor (1922) 1 AC 44). (SN)
78
Cooke vs. Midland Great Western Railway of Ireland (1909 AC 229). (SN)
78
INTERNALS - UNIT - II - PARTIES TO THE PROCEEDINGS
79-102
UNIT - III
SPECIFIC TORTS
3. A
3.B.
SPECIFIC TORTS - TORTS AFFECTING PERSONS
What is meant by the “Specific Torts”?
103
What js meant by the “Specific Torts Affecting Persons”?
103
What is meant by the “Specific Torts Affecting Immovable Properties”?
103
What is meant by the “Specific Torts Affecting Movable Properties”?
103
TRESPASS TO PERSON - ASSAULT AND BATTERY
104
Explain the ingredients of Assault and Battery.
Explain “Assault” and “Battery” with the help of decided
cases.
Distinguish between “Assault” and “Battery”. Give illustrations.
Does “Battery” always include “assault”?
104
104
What are the elements of Assault, Battery and False Imprisonment in
Law of Torts?
104
Assault. (SN)
104
Meaning of Assault. (SN)
104
Essentials of an Assault. (SN)
104
Which are not assaults? (SN)
104
# R vs. S. George (9 C& P 483); (SN)
105
# “Blake vs. Barnard (1840) 9 C&P 626)^’. (SN)
105
(xxi)
# Stephens vs. Myers (1830) 4 AC 172 ER 735). (SN)
Bavisetti Venkata Surya Rao vs. Nandipati Muthayya (AIR 1964 AP). (SN)
105
105
BATTERY. (SN)
106
Meaning of Battery. (SN)
106
Essentials of Battery. (SN)
106
# Stanley vs. Powell (1891) 1 Q.B. 86). (SN)
106
Pratap Daji vs. B.B. & Co. RIy. (1875) 1 Bomb. 52). (SN)
,
P. Kader vs. K.A. Alagarswami (AIR 1965 Mad. 438). (SN)
All Buksh Doctor vs. Sheikh Samiruddin (1869) 4 Beng. LLR ACJ 31);
Bishonath vs. Huro Govind (1866) 5 WR 27). (SN)
DISTINCTION BETWEEN ASSAULT AND BATTERY. (SN)
Popular assault begins where legal assault ends”. (SN)
107
‘Every threat is not Assault. ” (S N)
107
Every Assault is not Battery. ” (SN)
107
“Every application offeree is not Battery. ” (S N)
107
106
106
106
107
St
3.C.
T
FALSE IMPRISONMENT [RESIDUARY TRESPASS TO THE PERSON]
-V
Explain the elements of the Tort of “False Imprisonment”.
DiSTINCTION BETWEEN “FALSE iMPRISONMENT” AND
tt
MALICIOUS PROSECUTION”.
107
Note on False Imprisonment.
107
What constitutes “False Imprisonment”, and who is liable for false imprisonment?
107
What are the points to be proved by the plaintiff in an action for False Imprisonment?
107
False Imprisonment. (SN)
'107
Wrong Imprisonment. (SN)
107
Residuary Trespass to the person. (SN)
107
Bird vs. Jones. (SN)
108
Herd vs. Wearoale (1915 AC 67). (SN)
108
Maharani of Nabha vs. State (AIR 1942 Mad. 696). (SN)
Mee vs. Cruikshank (1902) 86 LT 708). (SN)
Bhim Singh vs. State of J.K. (AIR 1986 SC 494). (SN)
The False Imprisonment should be without any lawful justification. (SN)
108
Herd vs. Wearcale (1915 AC 67). (SN)
109
John Lewis & Co. vs. Time (1952) 1 All ER). (SN)
REMEDIES AGAINST FALSE IMPRISONMENT. (SN)
108
108
108
109
109
DISTINCTION BETWEEN FALSE IMPRISONMENT AND ABUSE OF
PROCESS. (SN)
3.D.
109
MALICIOUS PROSECUTION / ABUSE OF LEGAL PROCEEDINGS
Malice. (SN)
110
Malicious Prosecution. (SN)
110
Abuse of Legal Proceedings. (SN)
110
Maintenance and Champerty. (SN)
110
Champertous Agreement. (SN)
^ 111
(xxii)
Essentials of a Malicious Prosecution. (SN)
111
Narasinga Rao vs. Muthaya Pillai (1926, Mad. 362). (SN)
112
# Gaya Prasad vs. Bhagat Singh (ILR (1908) 30 All. 525 PC). (SN)
112
Satyakam vs. Dallu (AIR 1983 Raj. 193). (SN)
112
# Abrath v. North Eastern Railway Co. (1886 A.C. 247). (SN)
113
Abdul Majid vs. Harbansh Chaube (AIR 1974 All 129). (SN)
113
Malice. (SN)
3.E.
NERVOUS SHOCK
114
Trace the development of the tort of nervous shock.
What is nervous shock? Is nervous shock an actionable wrong? Refer to
decided cases.
!■
Explain the liability for injury caused by shock in
Define “Nervous Shock”.
Law of Torts.
Discuss nervous shock with decided cases.
114
114
114
114
Write an essay on Nervous Shock.
Discuss the evolution of the Tort of Nervous Shock.
Illustrate your answer with
relevant cases.
114
State the rule governing liability of a person for causing nervous and mental shock.
114
Discuss the law relating to Nervous Shock with decided
grounds for the liability of Nervous Shock.
114
cases. Mention the
Nervous Shock. (SN)
114
Victorian Railway Commissioner vs. Coultas (1888 LR13 AC 322). (SN)
115
# Wilkinson vs. Downton (1897) 2 QB 57 A). (SN)
115
Dulleu vs. White and Sons (1901) 2 KB 669). (SN)
115
Ownes vs. Liverpool Corporation (1939) 1 KB 394). (SN)
115
Janvier vs. Sweeney (1919) 2 KB 316). (SN)
116
# King vs. Phillips (1953) 1 QB 429). (SN)
116
# Hambrook vs. Stokes Bros. (1925) 1 KB 141). (SN)
116
# Bourhill vs. Young (1943 AC 92). (SN)
116
DIFFERENCES BETWEEN BODILY HARM AND NERVOUS SHOCK. (SN)
117
3.F.
TORTS AFFECTING IMMOVABLE PROPERTY
3.F.
(I) TRESPASS TO LAND
What is trespass to land? Explain remedies available against the trespasser
117
What do you mean by ‘trespass to land’, and explain the defences, if any,
in cases of such trespass.
117
“Trespass is a transgression of right” Do you agree
statement? Is it a tort? Write your answer.
with the above
117
Discuss the responsibility of the owner of the premises to an invitee, licensee
and trespasser.
117
Trespass to land. (SN)
117
Adverse Possession and Easement by Prescription. (SN)
117
Aerial Trespass. (SN)
118
Underground Trespass. (SN)
118
Edwards v Sims (1929) 24 SW 2d 619). (SN)
118
(xxiii).
I
\
3.F.
Pi Napoli V New Beach Apartments (2004) Aust Torts Reports 81-728). (SN)
118
Leave and Licence. (SN)
119
Timber Trespass. (SN)
119
Distress Damage Feasant. (SN)
119
Action for mesne profits. (SN)
119
Defences to trespass to land. (SN)
119
Trespass ab initio. (SN)
120
Six Carpenters’ Case. (SN)
120
Eiias vs. Pasimore (1934) 2 KB 164). (SN)
120
Wood vs. Leadbitter (1845) 12 M & W 838). (SN)
121
Hurst vs. Picture Theaters Ltd. (1915) 1 KB 1). (SN)
121
(ii) NUISANCE - PUBLIC NUISANCE AND PRIVATE NUISANCE
What do you understand by the expression “Nuisance”? Who
is liable for
nuisance and who can sue for nuisance?
121
Define “Nuisance” and state the basic differences between “Public Nuisance
95
and “Private Nuisance”.
121
Write an essay on nuisance.
121
Bring out the ingredients of Nuisance and specify the
ii
Distinction between
Public Nuisance” and “Private Nuisance”.
121
Distinguish between Private and Public Nuisance. When
can an individual
initiate private action in respect of Public Nuisance?
121
What is a “Private Nuisance”? Distinguish between Private
Nuisance and
Public Nuisance.
121
Write a note on remedies for private nuisance.
121
What is the difference between public and private nuisance?
Elaborate the
scope of public nuisance.
121
Distinguish between public nuisance and private nuisance.
What are the
defences available against an action for nuisance?
What is “Nuisance”? How it is constituted? Distinguish
121
between Public
Nuisance and Private Nuisance.
122
PUBLIC NUISANCE. (SN)
122
Nuisance. (SN)
122
Nuisance and Trespass. (SN)
112
Essentials of Nuisance. (SN)
122
DIFFERENCE BETWEEN NUISANCE AND TRESPASS. (SN)
Dr. Ram Raj Singh vs. Babulat (AIR 1982 All. 285). (SN)
122
124
Campbell vs. Paddington Corporation (1911) 1 K.B. 869). (SN)
124
Environmental Pollution. (SN)
124
# Benjamin vs. Storr (1874 LR 9 CP 400). (SN)
125
“Saius popuii est suprema /ex.” (Regard for the public
welfare is the
highest law.) (SN)
125
PRIVATE NUISANCE. (SN)
125
Radhey Shyam vs. Gur Prasad (AIR 1978 All. 86). (SN)
125
“Nuisance is a Continuing wrong.” — Explain. (SN)
125
(xxiv)
DISTINCTION BETWEEN PUBLIC NUISANCE AND PRIVATE NUISANCE. (SN)
126
DEFENCES. (SN)
126
Law of Prescription. (SN)
126
Vigilantibus non dormientibus Jura subvenient.” (The equity comes to the
aid of the vigiiant and not the siumbering.)
126
ti
Distinction between the Public Nuisance and the Private
3.Gl
Nuisance. (SN)
126
TORTS RELATING TO MOVABLE PROPERTY / SLANDER /
TRESPASS TO GOODS, DETINUE AND CONVERSIONS
Define the “Tort of Conversion” and mention the various defences in which
the tort may be committed. How does it differ from trespass to goods?
127
Explain Torts relating to movable property. Explain the elements of the Tort of
127
Conversion.
Explain the ingredients of the Tort of Conversion citing relevant cases. Explain
127
the various forms of Conversion.
What is conversion? Bring out the essentials of conversion with
reference to
127
decided cases.
Explain the nature of an action for slander of title.
action, what facts are established by the plaintiff?
In order to succeed in such an
How does an action for
Slander of Title differ from an action of defamation?
127
Conversion by sale and keeping. (SN)
127
Conversion of Goods. (SN)
127
Meaning of “Trespass to Goods”. (SN)
127
Essential Ingredients of Trespass to Goods. (SN)
127
DETINUE (WRONGFUL DETENTION). (SN)
128
Meaning and Essentials of Detinue. (SN)
128
The Torts (Interference with Goods) Act, 1977 (England). (SN)
128
CONVERSION (TROVER) (WRONGFUL CONVERSION). (SN)
128
Baldwin vs. Cole
129
# Fouldes vs. Willoughby (1841, M&W 540). (SN)
130
# Hollins vs. Fowler (1875, L.R. 7 H.L. 757). (SN)
130
Seton vs. Lafone (1887) 19 QBD 68). (SN)
130
Armory vs. Delamire (1721) 1 Str. 505). (SN)
131
REPLEVIN. (SN)
131
INTERNALS - UNIT - III - SPECIFIC TORTS
132-144
UNIT - IV
DEFAMATION, NEGLIGENCE, ETC.
4.A
DEFAMATION
4.A.
(i) LIBEL AND SLANDER
Discuss the law relating to libel and slander (English Law and Indian Law).
145
Distinguish “Slander” from “Libel”. Give examples. Is slander actionable perse?
145
DISTINCTION BETWEEN LIBEL AND SLANDER.
145
Slander. (SN)
146
Libel. (SN)
146
Difference between the English and Indian Law reiating
slander. (SN)
(xxv)
to libel and
146
I
4
I
# Youssoupoff vs. Metro Godwyn Mayer Pictures Ltd.
(1934) 50 TLR 581 (CA). (SN)
4.A.
(li) DEFAMATION
‘Defamation is injury to the reputation of a person. ”
4.A
4.A.
146
— Comment.
147
What are the essential elements of tort of defamation?
147
What conditions are required to constitute an action
147
for defamation?
Write an essay on defamation.
147
Define “Defamation”, and explain the essentials of Defamation.
147
What are the defences of tort of defamation. Write your answer.
147
What are the essential features of “Defamation”? Explain. Write about the
principles laid down in Cassidy vs. Daily Mirror News Paper Ltd.
147
‘‘The liabiiity for libel does not depend on the intention of the
the facts of defamation. ” — Discuss referring to cases.
147
defamerbut on
Essentials of Defamation. (SN)
147
Defamatory. (SN)
147
# Capital & Counties Bank vs. Henty (1882 7 App Cas 741). (SN)
148
# Hulton &Co. vs. Jones (1910 AC 20). (SN)
149
Newstead vs. London Express Newspapers Ltd. (1939) 4 All ER 319). (SN)
149
DISTINCTION BETWEEN DEFAMATION AND INSULT. (SN)
150
(iii) INNUENDO
Innuendo. (SN)
151
#Tolby vs. J.S.Fry & Sons Ltd. (1931 AC 333 HL). (SN)
151
Cassidy vs. Daily Mirror Newspapers Ltd. (1929) 2 KB 231). (SN)
152
Bruce vs. Odhams Press Ltd. (1936). (SN)
152
Morrison vs. Ritihie & Co. (1902) 4 F 654 Scottish Court). (SN)
152
Pooja Bhatt vs. Stardust Newsmagazine (1997). (SN)
152
(iv) DEFENCES AGAiNST THE SUITS OF DEFAMATION
Describe various defences that may be pleaded in an
action of defamation.
153
Justification by Truth. (SN)
153
FAIR COMMENT/BOA/A FIDE COMMENT vs. ROLLED-UP PLEA. (SN)
154
# Merivale vs. Carson (1887 20 QB 275). (SN)
154
Yandamoori Veerendranath and another vs. Muppala Ranganayakamma
(1987). (SN)
154
Kalanjali, Hyderabad vs. Vartha Chief Editor, Managing
Director
and others (1999). (SN)
155
PRIVILEGE. (SN)
155
ABSOLUTE PRIVILEGE. (SN)
155
Parliamentary Proceedings. (SN)
155
Judicial Proceedings. (SN)
155
Qualified Privilege. (SN)
156
DISTINCTION BETWEEN ABSOLUTE PRIVILEGE AND
QUALIFIED PRIVILEGE. (EQ/SN)
157
Consent. (SN)
157
Apology. (SN)
157
(xxvi)
4.B.
NEGLIGENCE
4.B.
(i) DEFINITION AND ESSENTIALS OF “NEGLIGENCE”
What are the essential elements of Tort of Negligence?
What are the defences
available for an action of Negligence?
157
What is negligence? Is it a specific tort? Refer to
decided cases.
When is negligence recognized as an independent tort? Explain with case-law.
157
157
Discuss the “Neighbour’s Rule” in the Tort of Negligence. Explain the
applicability of this Rule with special reference to negligent misstatements.
157
What are the essential elements of “Negligence”? What
available for an action in Negligence?
157
are the defences
“Negligence is the complex concept of duty to take care, its breach and
consequential damage.” — Comment.
157
What are the defences in a Suit of Tort of Negligence?
157
What is negligence? Explain with decided cases. Discuss
theories of negligence.
the different
Explain the manufacturer’s liability in the light of “Donoghue vs. Stevenson”.
157
SUBJECTIVE THEORY OF NEGLIGENCE. (SN)
158
Imperitia Culpae adnumeratur. (SN)
158
OBJECTIVE THEORY OF NEGLIGENCE. (SN)
158
ESSENTIALS OF NEGLIGENCE. (SN)
159
DUTY OF CARE TO THE PLAINTIFF/NEIGHBOUR’S RULE. (SN)
159
# DONOGHUE vs. STEVENSON (1932 AC 562). (SN)
159
NEIGHBOUR’S RULE. (SN)
160
R.T.C. vs. Bezium Bibi (AIR 1980 Cal. 165). (SN)
160
Shushma Mitra vs. M.P.S.R.T.C. (AIR 1974 MP 68). (SN)
160
Municipal Board, Jaunpur vs. Brahm Kishore (AIR 1973). (SN)
161
# Bhagawan Das vs. Mohd. Arif (1987) (2) ALT 137). (SN)
161
Generai Manager, K.S.R.T.C. vs. Sushma Thomals
161
Rondel vs. Worsely
161
Lucknow Development Authority vs. M.K. Gupta
4,B.
4.B.
157
.
161
Nirmala vs. TN Electricity Board
162
Boiton vs. Stone
162
(ii) RES IPSA LOQUITUR
Explain the legal maxim “Res Ipsa loquitur”.
163
Res Ipsa Loquitur. (SN)
163
P.A. Narayanan vs. Union of india and others (1998) 3 SCC 6). (SN)
163
Mohmed Rowther vs. Shunmugasundaram Chettiar (AIR 1943 Mad 343). (SN)
163
Gobald Motor Service vs. Veluswami (AIR 1962 SC 1) (SN)
163
# Byrne vs. Boadle (1863) 2 H & C 722). (SN)
164
Turner vs. National Coal Board (1949 TLR 65). (SN)
164
Collector of Ganjam vs. Chandra Das (AIR 1975 SC 205). (SN)
164
(iii) CONTRIBUTORY NEGLIGENCE
Distinguish between contributory negligence and composite negligence.
(xxvii)
165
I
Define “Contributory Negligence”. Discuss the general principies of
contributory negiigence with decided cases.
What is meant by “Contributory Negligence”? How does
“Negligence”?
165
it differ from
Explain Contributory Negligence.
165
165
What is meant by “Contributory Negligence”? How far contributory negiigence
is a valid defence?
165
Explain the defence of Contributory Negligence. What are the exceptions to this
Defence? Give illustrations.
165
Contributory Negligence. (SN)
165
Yoginder Paul Chowdhury vs. Durgadas (1972 SCJ 483 Del). (SN)
165
# Butterfield vs. Forrester (1809) 11 East 60). (SN)
165
Nance vs. British Columbia Elec. RIy. Co. (1951 AC 601). (SN)
166
Harris vs. Toronto Transit Commission (1968 ACJ 448). (SN)
166
Gobald Motor Service Ltd, vs. Veluswami (AIR 1961 SC 1). (SN)
166
Defences to the Contributory Negligence. (SN)
166
# Dann vs. Hamilton (1939) 1 KB 509). (SN)
166
THE LAST OPPORTUNITY RULE. (SN)
166
Davies vs. Mann (1882) 10 M.and W. 546). (SN)
167
British Columbia Electric Co. vs. Loach (1916) 1 AC 719). (SN)
167
Cooke vs. Midland Great Western Railway of Ireland (1909 AC 229). (SN)
167
DISTINCTION BETWEEN CONTRIBUTORY NEGLIGENCE AND
COMPOSITE NEGLIGENCE. (SN)
4.C.
167
TORTS AGAINST BUSINESS RELATIONS / ECONOMIC TORTS
What is meant by ‘Torts against Business Relations’?
168
What is meant by ‘Economic Torts’?
168
Mogul Steamship Co Ltd (1889) LR 23 QBD 598). (SN)
168
Taff Vale Railway v. Amalgamated Society of Railway Servants
4.D.
(1901 AC 426). (SN)
168
The Trade Disputes Act 1906 (UK). (SN)
168
Tortuous Interference. (SN)
169
Intentional Interference with Contractual Relations. (SN)
169
Garret vs. Taylor (79 Eng. Rep. 485 K.B. 1620). (SN)
169
Tarleton vs. McGawley (170 Eng. Rep. 153 K.B. 1793). (SN)
169
Keeble v Hickeringill (1707) 103 Eng. Rep. 1127). (SN)
169
OBGv Allan (2008 (1)AC 1). (SN)
169
Wrongful Interference. (SN)
169
Causing loss by unlawful means. (SN)
169
Tortuous Interference of Business. (SN)
170
Tortuous Interference of Contract. (SN)
170
Unfair Trade Practices. (SN)
170
INJURIOUS FALSEHOOD / MALICIOUS FALSEHOOD
Explain the elements of the Tort of “False Imprisonment”, and distinguish it from
the Tort of “Malicious Prosecution”.
170
(xxviii)
4
4.E.
4.F.
Injurious Falsehood. (SN)
170
Malicious Prosecution. (SN)
170
DISTINCTION BETWEEN MALICIOUS FALSEHOOD AND DECEIT. (SN)
171
DISTINCTION BETWEEN MALICIOUS FALSEHOOD AND DEFAMATION. (SN)
171
Forms of Malicious Falsehood. (SN)
171
Slander of Title. (SN)
171
Slander of Goods. (SN)
171
NEGLIGENT MISSTATEMENT
Fraud. (SN)
172
Tort of Deceit. (SN)
172
Liability for Mis-statements. (SN)
172
Edington vs. Fitzmaurice (1885) 29 ChD 459). (SN)
173
Can mere silence be treated as a fraud? (SN)
173
Kiran Bala vs. B.P. Srivastava (AIR 1982 All. 242). (SN)
173
# Derry vs. Peek (1889) 14 AC 337). (SN)
173
Ill-intention of the Defendant. (SN)
174
NEGLIGENT MIS-STATEMENTS. (SN)
174
# Hedley Byrne and Co. Ltd. vs. Heller and Partners (1964 AC 495);
(1963) 2 All E.R. 575). (SN)
174
INNOCENT MISREPRESENTATIONS. (SN)
175
PASSING OFF
Define the Tort of “Passing off’, and explain the various modes by which the
4.G
Tort can be committed.
175
Distinguish “Passing off” from “Deceit”.
175
Passing Off. (SN)
175
Passing Off vs. Trade Marks. (SN)
175
Essentials of Passing Off. (SN)
175
DISTINCTION BETWEEN PASSING OFF AND DECEIT/FRAUD. (SN)
176
Eiiora Industries vs. Banarsi Dass (AIR 1980 Delhi 254). (SN)
176
CONSPIRACY - DISTINCTION BETWEEN
CRIMINAL CONSPIRACY AND TORTUOUS CONSPIRACY
177
Explain the tort of conspiracy referring to decided
cases.
Explain the brief facts and principles laid down in
Crofter Hand Woven
Harris Tweed Co. Ltd. vs. Veitch Case. (SN)
177
Conspiracy in Tort. (SN)
177
DiSTINCTiON BETWEEN CRiMiNAL CONSPiRACY AND
TORTUOUS CONSPiRACY. (SN)
177
Crofter Hand Woven Harris Tweed Co. Ltd. vs. Veiich
4.H.
(1942 AC 435). (SN)
177
TORTS AFFECTING FAMILY RELATIONS
What are the torts that affect family relations?
Comment upon the liability of husband for the torts of his wife in England before
and after 1962. (EQ/SN)
Broom vs. Morgan (1953) 1 Q.B. 597). (SN)
(xxix)
178
178
178
The Law Reform (Husband and Wife) Act, 1962 (England). (SN)
Comment upon the liability of husband for the torts of
178
his wife in India before
and after Independence and Constitution. (EQ/SN)
178
Torts against Wives. (SN)
179
Marital Rights. (SN)
179
Domestic Rights. (SN)
179
The ‘Dowry Prohibition Act, 1961’. (SN)
179
Definition of “Dowry Death” and “Dowry Suicides”. (SN)
MATRiMONIAL CRUELTY [S. 498-A, THE iNDiAN PENPAL CODE, I860]. (SN)
179
179
THE DOMESTiC ViOLENCE ACT, 2005. (SN)
180
TORTS AGAiNST HUSBANDS. (SN)
180
MAINTENANCE OF PARENTS. (SN)
181
Section 125 of the Cr.P.C. (SN)
181
The Maintenance of Welfare of Parents and Senior Citizens Act, 2007. (SN)
181
PROTECTION OF CHiLDREN. (SN)
181
INTERNALS - UNIT - IV - DEFAMATION, NEGLIGENCE, ETC.
182-197
UNIT-V (PART-A)
EXTINCTION OF LIABILITY
5.A
5.B.
i
EXTINCTION OF LIABILITY
Narrate an essay on ‘Extinction of Liabiiity’ in torts.
198
What is meant by ‘Extinction of Liabiiity’ in torts? (SN)
198
WAiVER AND ACQUiESCENCE
Narrate about “Waiver and Acquiescence” of a tortuous liability?
199
Waiver and Acquiescence from tortuous liability. (SN)
199
Acquiescence. (SN)
199
Associated Hotels of India Ltd. vs. S.B. Sardar Ranjit Singh
(AIR 1968 SC 933). (SN)
5.C.
5.D.
5.E.
199
RELEASE
Narrate about “Release” of a tortuous liability.
200
Release. (SN)
200
Cutier vs. McPhail (1962) 2 QB 292). (SN)
200
Shiv Sagar Lai vs. Mata Din (AIR 1949 All. 105). (SN)
200
ACCORD AND SATISFACTION
Narrate about “Accord and Satisfaction” of a tortuous liability?
201
Accord and Satisfaction. (SN)
201
Satisfaction. (SN)
201
Ram Kumar vs. Aii Hussain (1909 ILR31 All. 173). (SN)
202
Merryweather vs. Nixan (179^) 8 TR 186). (SN)
202
DEATH - DEATH iN RELATION TO TORT - ACTAO PERSONALIS
MORITUR CUM PERSONA
Discuss “Actio personalis moritur cum persona”. What
are the relevant
statutes relating to it?
202
What are the exceptions to “Actio personalis moritur cum persona”?
202
(xxx)
Death in relation to Tort. (SN)
202
Effect of Death on the suits. (SN)
202
(i
202
Contract - an exception to “Actio personalis moritur cum persona”. (SN)
202
Unjust Enrichment - an exception to “Actio personalis
cum persona”. (SN)
203
'Actio personalis moritur cum persona”. (SN)
5.F.
moritur
# Sherrington’s Case (1582 Sav. 40). (SN)
203
Shortening of the expectation of life. (SN)
203
Fiint vs. Loveii (1935) 1 KB 354). (SN)
203
Gobaid Motor Service vs. Veiuswami (AIR 1961 SC 1). (SN)
203
Rose vs. Ford (1937 AC 826). (SN)
204
Is cause of death actionable? (SN)
204
# Baker vs. Boiton (1808) 1 Camp. 493:10 R.R. 734). (SN)
204
Death caused due to the breach of contract. (SN)
204
Jackson vs. Watson (1909)2 KB 193). (SN)
204
Statutes imposing compulsory tortuous liability. (SN)
205
Period of Limitation for filing suits for compensation. (SN)
205
REMEDIES - JUDICIAL AND EXTRA-JUDICIAL REMEDIES
What is meant by ‘Remedies’ available against tortuous liabilities?
judicial and extra-judicial remedies available against torts?
5.Gl
What are
205
What are the judicial remedies against the torts?
205
What are the extra-judicial remedies against the torts?
205
Remedies. (SN)
205
Remedies against tortuous liabilities. (SN)
205
Judicial Remedies against tortuous liabilities. (SN)
205
Extra-Judicial Remedies against tortuous liabilities. (SN)
206
DISTINCTION BETWEEN JUDICIAL AND EXTRA-JUDICIAL REMEDIES. (SN)
207
GENERAL PRINCIPLES OF DAMAGES - KINDS OF DAMAGES
What are the general principles of damages? What are the kinds of damages?
207
General Principles of Damages. (SN)
207
Kinds of Damages. (SN)
207
Damages. (SN)
208
DISTINCTION BETWEEN ‘DAMAGE’ AND ‘DAMAGES’. (SN)
208
General Damages. (SN)
208
Special Damages. (SN)
208
Nominal Damages. (SN)
208
Contemptuous Damages. (SN)
208
Compensatory Damages. (SN)
208
Aggravated Damages. (SN)
209
Exemplary Damages. (SN)
209
Vindictive Damages. (SN)
209
Punitive Damages. (SN)
209
(xxxi)
I
Prospective Damages. (SN)
209
Future Damages. (SN)
209
Injunctions. (SN)
209
Specific Restitution of Property. (SN)
209
5.H.
ASSESSMENT OF DAMAGES / MEASUREMENT OF DAMAGES
5.H.
(i) ASSESSMENT OF DAMAGES / MEASUREMENT OF DAMAGES
Explain the principles for assessment of damages in
case of tort.
210
Explain the procedure of “Assessment of Damages”.
211
Assessment of Damages. (SN)
211
Measurement of Damages. (SN)
211
Reliance Loss. (SN)
211
Wasted Expenditure Loss. (SN)
211
Bad Bargain. (SN)
211
P. Haulage vs. Middleton (1983). (SN)
211
Damages. (SN)
211
Compensatory Damages or Actual Damages. (SN)
211
Punitive Damages or Expectation of Damages. (SN)
211
Liquidated Damages. (SN)
211
Unliquidated Damages. (SN)
211
DISTINCTION BETWEEN LIQUIDATED DAMAGES AND
UNLIQUIDATED DAMAGES. (SN)
212
Quantum of Damages. (SN)
213
Measure of Damages. (SN)
213
West vs. Shephard (1964 AC 326). (SN)
21,3
Full Compensation. (SN)
213
Attendant’s Expenses. (SN)
213
Interest on Damages. (SN)
213
Who are entitled for the, damages? (SN)
213
Capacity of the deceased. (SN)
213
Shall gratuity, provident fund, family pension, insurance money, etc. be deducted,
in the damages awarded? (SN)
213
Loss of Consortium. (SN)
213
Shall the wife of the deceased (husband) be entitled if she remarriages? (SN)
214
Prospective Loss of Earnings. (SN)
214
Interest Method of Prospective Loss of Earnings. (SN)
214
Lump sum Method of Prospective Loss of Earnings. (SN)
214
Actuary’s Multiplier Method. (SN)
214
Diplock Formula. (SN)
215
# Bhagawan Das vs. Mohd. Arif (1987 (2) ALT SC). (EQ/SN)
215
The General Manaer KSRTC, Trivandrum vs.
Mrs. Susamma Thomas and others (Respondents) (1994) 1 ALT 1 SC) (SN)
215
Breach of Contract Duty - (Ex Contractu). (SN)
216
(xxxii)
Expectation Measure. (SN)
216
Benefitrof-the-bargain Measure of Damages. (SN)
216
Breach of Tortuous Duty. (SN)
216
Ex Delicto.iSH)
216
General Damages sometimes styled ’’Hedonic Damages”. (SN)
216
Speculative Damages. (SN)
217
Quantification of Personal Injury Claims. (SN)
217
The age of the aggrieved person/complainant/plaintiff. (SN)
217
The nature and extent of the injuries sustained. (SN)
217
Gender of the Complainant. (SN)
218
Personal Attributes and Fortitude of the Complainant. (SN)
218
Proximate Cause. (SN)
218
Quantifying Losses in Practice - Expert Evidence. (SN)
218
Contemptuous Damages. (SN)
218
Aggravated Damages. (SN)
219
DISTINCTION BETWEEN THE AGGRAVATED DAMAGES AND
PUNITIVE DAMAGES. (SN)
219
RESTITUTIONARY OR DISGORGEMENT DAMAGES. (SN)
220
Legal Costs. (SN)
220
DIFFERENT LEGAL REMEDIES. (SN)
220
DISTINCTION BETWEEN COMPENSATION AND DAMAGES. (SN)
220
Special Damages. (SN)
221
Incidental Damages. (SN)
221
Consequential Damages. (SN)
222
Reliance Damage. (SN)
222
Statutory Damages/Legai Damages. (SN)
223
Treble Damages. (SN)
223
DIFFERENT EQUITABLE REMEDIES. (SN)
223
Specific Performance. (SN)
223
Restitution / Account of Profit. (SN)
224
Constructive Trust. (SN)
224
Injunctions. (SN)
227
Rescission. (SN)
227
Rectification. (SN)
228
Declaratory Relief. (SN)
228
s
ii
5.H.
(ii) REMOTENESS OF DAMAGE
Explain the Doctrine of Remoteness of damages in Tort with
leading cases.
Explain the concept of Remoteness of damage in tort with
reference to
229
reference to
decided cases.
229
Explain the rules governing the determination of the remoteness of damage.
Refer to Scott vs. Shephered and Wagon Mound Cases.
229
(xxxiii)
Discuss with reference to leading English decisions the rules governing
Remoteness of Damage” in tort and state which rule is most favoured.
229
“The test of reasonable foresight is relevant to determine culpability but not
Discuss.
compensation.
229
it
Discuss with reference to leading English decisions the rules governing
Remoteness of Damage” in tort, and state which rule is most favoured.
229
Remoteness of Damages. (SN)
229
it
229
"In law, the immediate, not the remote, cause of any event is to be considered.” (SN)
229
# Haynes vs. Harwood (1935) 1 K.B. 146). (SN)
230
# Lynch vs. Nurdin (1841) 1 QB 29). (SN)
230
The Test of Directness. (SN)
230
it
Injure non-remota causa sedproxima spectator.” (SN)
# Re an Arbitration between Polemis and Furness, Withy
(1921) 3 KB 560). (SN)
5.H.
5.H.
& Co.
230
The Test of Reasonable Foresight/the Wagon Mound Case Rule. (SN)
230
# Overseas Tankship (UK) Ltd. vs. Morts Dock & Engineering
(1961) 1 All ER404 PC) (Wagon Mound No. 1 Case). (SN)
230
Co.
# Overseas Tankship U.K. Ltd. v. The Miller Steamship Co. Ltd. (1967 A.C. 617)
(Wagon Mound No. 2 Case). (SN)
231
# Hughes ys. Lord Advocate (1963) 1 All ER 705 HL). (SN)
231
S.C.M. (UNK) Ltd. vs. W.J. Whittall & Sons (1971) 1 QB 337). (SN)
231
(iii) THE EGGSHELL SKULL CASES
Eggshell Skull Cases. (SN)
232
Meaning of “Eggshell Skull”. (SN)
232
Dulleu vs. White and Sons (1901) 2 KB 669). (SN)
232
Smith vs. Leech Brain & Co. Ltd. (1962) 2 QB 405). (SN)
232
I
(iv) NOVUS ACTUS INTERVENIENS (A NEW ACT INTERVENING
Explain the principle “Novus actus interveniens”.
232
A new act intervening. (SN)
232
Lord and another vs. Pacific Steam Navigation Co. Ltd.
5.1.
(1943)1AirER211 (CA). (SN)
233
Chaurasiya & Co. vs. Smt. Pramila Rao (1974ACJ 481 (MP). (SN)
233
Scott vs. Shepherd. (SN)
233
INJUNCTIONS
I!
Explain temporary and Perpetual Injunction. When such Injunction can be granted
or refused?
234
Explain the significance of injunctions as a legal remedy in Law of Torts.
.
234
Explain “injunction”. Mention the different types of Injunctions.
234
What are the guiding principles for the grant of temporary injunctions?
234
Meaning of Injunction. (SN)
235
Meaning of Relief. (SN)
235
Essential Ingredients of Injunction. (SN)
235
Kinds of Injunctions. (SN)
235
Temporary Injunctions. (SN)
235
(xxxiv)
Interlocutory applications. (SN)
235
# Dalpat Kumar and another (Appellants) vs.
Prahlad Singh and others (Respondents) (1992) 1 SCC 719). (SN)
236
Perpetual Injunctions. (SN)
236
Permanent Injunctions. (SN)
236
Granting Injunctions. (SN)
236
Prohibitory Injunctions. (SN)
237
Mandatory Injunctions. (SN)
237
#Krehal vs. Burrel (1877 Ch D 551). (SN)
237
Raghunath vs. Mathura Municipality (AIR 1952 All 465). (SN)
238
Damages in lieu of, or in addition to, injunction. (SN)
238
Injunction when refused. (SN)
238
UNIT - V (PART - B)
LIABILITY ARISING OUT OF ACCIDENTS
(RELEVANT PROVISIONS OF THE MOTOR VEHICLES ACT)
5.J.
THE MOTOR VEHICLES ACT, 1988
Narrate the provisions about the liability arising
out of the accidents occurred
by the motor vehicles.
239
Discuss the iaw relating to iiabiiity arising out of accidents.
239
What are the objects of the Motor Vehicles Act, 1988
and Objects of the Motor Vehicles Bill?
239
as stated in the Statement
Statement of Objects and Reasons of the Motor Vehicles Bill. (EQ/SN)
5.K.
239
THE CLAIMS TRIBUNAL / THE MOTOR ACCIDENTS CLAIMS TRIBUNALS
[Ss. 165-176]
Narrate about the constitution of the Claims Tribunal under the
Motor Vehicles Act, 1988.
243
Claims Tribunal. (SN)
243
Motor Accidents Claims Tribunal. (SN)
243
DISTINCTION BETWEEN THE CIVIL COURTS AND
THE MOTOR CLAIMS TRIBUNALS. (SN)
5.L.
5.M.
LIABILITY WITHOUT FAULT / ACCIDENTS BY MOTOR VEHICLES,
244
ETC.
Explain “Liability without Fault”.
245
The circumstances under which the iiabiiity without fauit to pay compensation arises?
245
Liability without fauit. (SN)
245
KINDS OF INSURANCE UNDER THE MOTOR VEHICLES ACT, 1988
What are the kinds of insurance under the Motor Vehides Act, 1988?
247
Third Party Liability. (SN)
247
Package Policy. (SN)
247
O.D. Policy. (SN)
247
Comprehensive Insurance Policy. (SN)
247
What O.D./Package Policy covers? (SN)
248
What O.D./Package Policy excludes? (SN)
248
Basis of sum insured. (SN)
248
For Own Damage. (SN)
248
(xxxv)
5.N.
For Third Party. (SN)
248
Third Party Liability Insurance. (SN)
248
Certificate of Insurance. (SN)
248
If CNG or LPG kit is fitted to vehicle. (SN)
248
Documents to be kept in the vehicie while plying in public places. (SN)
248
Can the insurance be transferred to the purchaser? (SN)
248
Can the name of the previous owner be continued even after the vehicle is sold?
248
Duplicate Insurance Policy. (SN)
248
The documents that are required to be submitted for a Motor Insurance claim. (S nI)
249
PURPOSE OF COMPULSORY INSURANCE FOR THE MOTOR VEHICLES
What is the purpose of compulsory insurance? What are the types of
5.0.
compuisory insurance?
249,
The Empioyees’ State Insurance Act, 1948.
249
The Public Liability Insurance Act, 1991. (SN)
249
The Employees’ Compensation Act, 1923. (SN)
249
RIGHTS OF THIRD PARTIES IN THE MOTOR ACCIDENTS UNDER
THE INSURANCE ACT
5.P.
What are the Rights of Third Parties?
250
Rights of Third Parties. (SN)
250
Hit and Run Cases. (SN)
250
The Third Parties (Rights against Ihsurers) Act 2010 (The UK). (SN)
251
Prithi Singh vs. Binda Ram (AIR 1987 P & H 56). (SN)
251
R.T.C. vs. Bezium Bibi (AIR 1980 Cal. 165). (SN)
251
Shushma Mitra vs. M.P.S.R.T.C. (AIR 1974 MP 68). (SN)
251
Gobald Motor Service vs. Veluswami (AIR 1962 SC 1). (SN)
251
CLAIM BEFORE THE MOTOR ACCIDENTS TRIBUNAL
How is to claim compensation before the Motor Accident Claims Tribunal?
252
Claim before the Motor Accident Claims Tribunal. (SN)
252
255-279
INTERNALS - UNIT - V (A) & (B)
(xxxvi)
THE LAW OF TORTS
NATURE OF LAW OF TORTS
In this Unit, you study:—
1.A.
Nature of Law of Torts - Meaning, Concept and
Definition of Torts.
1.B. Essential; Elements / Conditions of Torts.
1.C. Deveiopment of Law of Torts in England and India.
1 .D. Wrongful Act and Legal-Damage I Damnum-Sme Injuria and Injuria Sine Darnnum.
1 .E. DISTINCTION BETWEEN THE TORTS AND THE CRIME.
1.F.
DISTINCTION OF TORTS AND BREACH OF CONTRACT.
1.Gl distinction TORTS vs. TRUSTS AND OTHER EQUITABLE OBLIGATIONS
1 .H. General Principles of Tortuous Liability / Theories of Liabiiity; of Torts.
1.1.
Fauit.
1J.
Motive.
I.K. Maiice / Wrongful intent.
I.L.
Negiigence.
1 .M. Liability Without Fault / Accidents by Motor Vehicles, Etc.
I.N. Statutory Liability.
1.0. Foreign Torts.
1 .P.
Miscellaneous Torts and Doubtful Torts - Franchise.
1 A.
NATURE OF LAW OF TORTS - MEANING,rCONeEPT
AND DEFINITION OF “TORT
99
I.A. MEANING AND DEFiNITiON OF TORT
Q.1. Define‘Tort’and. explain the nature of this branch
(May, 2008,':O.U.) (AnI:, 2009, O.U.) ,(Anl.„ 2010, A.U.)
of law.
(AnI., 2010, K.U.) (AnI., 2011, B.U.) (AnI., 2012,. N.U.) (AnI.,.2013s B.U.) (Anl.,.2013„M.U.)..(Anl.„2014,,Burd.U.)
(Sept;,:2013, Q.U:) (AnI., 2014, S.U.)
Q.2. “Law does not impose liability for mere omissions only. " — Explain.
(SN) (AnI., .2009,. N.U.) (Anl.,.2009, .N:U.) (Anl.^ 2009,. S.V.U.) (AnI;,.2010, S.K.U.),(June;;2010, O.U.)
Q.3. Define “Tort”.
(June, 2011, O.U.),(Anl.,:2011, B.U.) (AnI.,;2012,: G.U.).(May 2012, K.U.)4Anl.,2013„ D.U.)
(AnI.; 2013, Burd.U.).(AnI.,, 2014, S.U.)
. Q.4.: Define the.term;“Tbrt”;: and; state the elementslof
(SN)\(Anl:iv20p9, S.K.U.);,(A,nl;,i20,14, K.U.)
a ;Tdrt.
[Also refer to Topic “Essential Elements / Conditions
of Torts'’.]
.(SN)..(Anl.,..2pi1, A.U.)
Q.5. COMPARISON BETWEEN WINFIELD AND SALMOND.
Q.6.'
Q.7.
(SN),(AnI;-,; 2008. K.U.)
Frederick Pollock.
. :(S,N);(Anl;.-, 20,09,; M.U.)
Sir A. Underhill.
AN S W E;R:
NATURE OF tiAW OF TQRTS
MEANiNG; CONCEPTAND DEFINITiQHsOF
f‘TORT
99
1(EQ/SN)
MEANiNG:' The English ternri “Tort*’ has been derived from the Latin :termf Tortum”.which-means
.ti
to twist”.
“wrong’?,
It means which is notstraight and correct. ‘ The same term^has.been used in rFrench as
and in Roman Law as.‘?Delict”. -Now it is settled that tort is acivil/wrong; and it differs from
breach of contract. Liability in tort arises from breach of a duty primarily fixed by law which is
towards others generally. The breach ofthis duty is redressible by an action for unliquidated.damag.es
by way of compensation. Tort is an infringement of a private common lawmght/n rem.
A person, who commits a tort;or wrong,.is called a
tort-feasor’‘:!ori?wrona-doer”. i His wrongful act
is called at“tortuous act”.
The term “tort” was first reported in ?‘Boulton v. Hardy (1597): Grown; Eliz;i: 547i: 548)” case in
England.
The Law of Torts
DEFINITIONS:
So many Jurisprudents, Learned Justices attempted to give the definition for tort.
Each definition is valuable in its particular thinking.
hereunder:—
Some of the important definitions are given
WINFIELD: Winfield wrote a book on “The Law of Tort”. In his book he gave the definition of tort as
follows: “Tortuous liability arises from the breach of a duty primarily fixed by law; this duty is towards
persons generally and its breach is redressible by an action for unliquidated damages. ”
INGREDIENTS OF WINFIELD’S DEFINITION:
A
Winfield’s definition is most comprehensive and elaborative.
B.
Duties and Rights: The law primarily fixes certain duties on every person. At the same time, it
confers certain rights ot every person. These duties and rights are ot rem. I walk on road. It’is
my right to use the public road. At the same time, there is a duty fixed on the public not to cause
any harm, injury to me by way of accident, etc. This duty is applicable entire world (= rem). If
any person breaches this duty, and hits me with his vehicle, he shall be held responsible. These
duties are general. Every person has to follow them without exceptions.
C.
Unliquidated damages:
If any person breaches his duty, and causes any harm or loss to
another person, it means tortuous liability has arisen on that person, i.e., tort-feasor. He is liable
to pay compensation to the victim. How much compensation shall be payable? The Court
decides the quantum of the damages and compensation according to the situation. The
compensation is not fixed before the tortuous liability arises. It is not possible also to fix the
compensation before any accident or injury or harm. After the accident occurs, compensation
shall be fixed depending upon the quantum of injury or harm. In cases of breach of trust or
breach of contract, the quantum of the damages can be pre-assessed at the time of entering the
contract or trust itself.
Therefore, the damages fixed in the breach of contract and the breach of trust are called as “Liquidated
gamages”. The damages which can be fixed after the
tortuous liability arisen are called as
“Upiiquidated damages”. The breach of a legal duty in a tortuous liability can be redressable by
action for unliquidated damages. The concept of awarding unliquidated damages for a tortuous
liability is to put the injured party in the same position, so far as money can do it, as if he had not been
injured, i.e., in the position in which he would have been had there been before the tortuous liability
arisen.
This is equivalent to the “Doctrine of Restitution”.
SALMOND: Sir John Salmond wrote book named “The Law
of Torts”,
definition for tort as follows:
In his book he gave the
“A tort is a civil wrong for which the remedy in a common law action for
unliquidated damages and which is not exclusively the breach of a contract or the breach of trust or
other merely equitable obligation. ”
INGREDIENTS OF SALMOND’S DEFINITION:
A
Salmond also tried to give more elaborative and comprehensive definition.
B.
Civil Wrong: According to Salmond, tort is a civil wrong. It is not equivalent to the breach of a
contract or the breach of trust or other merely equitable obligation. In common law, it is a civil
wrong, covering all civil wrongs in public life. The tortuous liability may arise, when a civil wrong
occurs.
C.
Unliquidated Damages: The tort-feasor or wrong-doer does a civil wrong. He is liable to pay
unliquidated damages to the injured person.
D.
COMPARISON BETWEEN WINFIELD AND SALMOND
Both of them have given their definitions covering with their thinking.
(SN)
But the definition of Winfield
general people, cannot understand the correct nature of civil wrong.
At the same time, Winfield
seems to be more accurate, convincing and appropriate than of Salmond. In Saimond’s definition, the
term “civil wrong” is not correctly indicated. Its sphere is not known. Its depth Is very vast. The
succeeded in explaining correctly that tortuous liability arises from the breach of duty primarily fixed by
law. These duties and rights are rights in rem and duties in rem. Everyone should know these
rights and duties, as that Of criminal law.
I should
not kill or hurt any other person. This duty is
primarily fixed by law. I should not drive my vehicle negligently. It is primarilyfixed by law. I should not
construct my house causing injury to my neighbours or workers. Like this every duty is fixed by the
law. Winfield’s definition is more comprehensive and elaborative than that of Salmond.
FREDERICK POLLOCK: He gave most elaborate and lengthy definition of tort, bringing all ingredients
ofWinfield, Salmond and others. Hedefined: ‘‘Every tort is an act or omission (not being merely the
breach of a duty arising out of a personal relation, or undertakenby contract)which is relatedin one of
the following ways to harm (including interference with an absolute right, whether there be measurable
actual damage or not), suffered by a determinate person:
3
Unit -1: Nature of Law of Torts
(a) It may be an act which, without lawful justification or excuse, is intended by the agent to cause
harm, and does cause the harm complained of.
(b)
It may be an act in itself contrary to law, or an omission of specific legal duty, which causes harm
not intended by the (person so acting or omitting),
(c) It may be an act violating an absolute right (especially rights of possession or property), and
treated as wrongful without regard to the actor’s intention or knowledge. This, as we have seen,
is an artificial extension of general conceptions which are common to English and Roman Laws,
(d) It may be an act or omission causing harm which the person so acting or omitting to act did not
intend to cause, but might and should with due diligence have foreseen and prevented,
(e) It may, in special cases, consist merely in not avoiding or preventing harm which the party was
bound, absolutely or within limits, to avoid or prevent.”
CLARK AND LINDSEL: “A tort may be described as a wrong independent of contract for which the
appropriate remedy is a common law action. ”
SIR A. UNDERHILL:
“A tort is an act or omission which
independent of contract, is unauthorized by
law, and results either,—
(a) in the infringement of some absolute right to which another is entitled, or
(b) in the infringement of some qualified right of another causing damage, or
(c) in the infringement of some public right resulting in some substantial and particular damage to
some person beyond that which is suffered by the public largely; and gives rise to an action for
damages at the suit of the injured party.”
Note:
Some Universities prescribe cases. Some Universities do not prescribe any cases. However, there are
certain important and ieading cases in every subject, except Civil Procedure Code, 1908 & the Criminal Procedure
Code, 1973.
These prescribed and leading cases lay down certain important principles on law on the subject
concerning. Thus these are called as “Case-Laws”. I have placed the (#) before such Case-laws. These caselaws may be asked directly as an Essay or as a Short Note or even in internal exams. Particularly, case-laws may be
asked as Problems.
The Law of Torts is not a legislated Act. The Law of Torts is formed by the Case-Laws only.
Case-laws are very easy to study, understand and memorize, like Chandamama Stories. Therefore, I advise the
students to concentrate on Case-Laws in all subjects, particularly in the Law of Torts. I also request the students to
write or phone to me, if any prescribed case of their respective Universities is not found in these Notes, so that I can
incorporate such case-laws in future editions.—Gade Veera Reddy.
1.B.
ESSENTIAL ELEMENTS / CONDITIONS OF TORT
Q.1.
Define “Torts”, and explain the elements of Torts. (June, 2009, O.U.) (AnI., 2010, K.U.) (AnI., 2011, B.U.) (AnI., 2011, A.U.)
(AnI., 2012, G.U.) (AnI., 2012, N.U.) (AnI., 2012, S.K.U.) (Anl., 2013, D.U.) (AnI., 2014, Burd.U.)
Q.2.
Define a “Tort”, and discuss the statement that “Law of Torts” is concerned with the question of liability.
(Anl., 2010, M.U.) (Anl., 2011, P.U.)
Q.3.
“Tortuous liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach
(Anl., 2010, B.U.)
is redressible by an action for unliquidated damages." —Discuss.
Q.4.
“It is perhaps impossible to give an exact definition of ‘a Tort’ or ‘the law of tort’ or ‘tortuous liability’, and, as a corollary
it is certainly impossible to give a definition which will satisfy every theorist who has taken any interest in the Topic." —
Comment the Statement.
(Anl., 2012, Amb.U.)
Q.5.
Some jurists are of the view that there is no law of Tort, but only “Law of Torts”.
Q.1.
Describe briefly the mental elements required to fix tortuous liability.
Q.5.
# Municipal Corporation of Delhi vs. Subhagwanti (AIR 1966 SC 1750).
Q.6.
REMEDY OF LEGAL DAMAGES.
Discuss this as per your own opinion.
(Anl., 2009, S.V.U.)
(Anl., 2010, K.U.) (Anl., 2011, B.U.) (Anl., 2012, G.U.)
(SN) (Anl., 2008, K.U.) (Anl., 2010, M.U.)
(SN)
ANSWER:
ESSENTIAL ELEMENTS / CONDITIONS OF TORT
(EQ/SN)
INTRODUCTION: The term “Tort” has been derived from the Latin term “Tortum”. This term
means “to twist”, “crooked conduct”, “a wrong”, etc. A tort is an act which causes harm to a
determinate person, whether intentionaliy or not, being the breach of a duty arising out of a personal
relation or contract, and which either contrary to iaw, or an omission of a specific iegai duty, or a
violation of an absolute right. It is a civil wrong for which the remedy is that the piaintiff gets uniiquidated
damages.
For every tort, there are two essential elements. It is a condition precedent for a tortuous liability that
these two elements, i.e., conditions must be present.
■
4
The Law of Torts
1.
Breach of some duty, i.e., the defendant must have acted against the Law or omitted his legal
duty, which caused injury to the plaintiff; and
2.
The Plaintiff must have a remedy of legal damages from
1.
the defendant.
BREACH OF SOME DUTY
(SN)
A tort is a breach of some duty between citizens, defined by the general law, which creates a civil
cause of action. The duty must be founded in common right, not in a strictly personal relation such as
those of husband and wife or parent and child. It must be a duty assigned by Law, not depended on
the will of the parties.
“Law does not impose liability for mere omissions only.” There must be some act or omission
on the part of the defendant imposed by the Law, The moral or religious duties do not impose a
tortuous liability. The term “tortuous” means “unlawful”. Thus a “tortuous liability” can be
imposed only when there is a breach of law.
Examples:
(a) I have a duty to drive my vehicle very carefully. The law imposes strict liability upon me that I
should not cause accident to others. It is my duty that I must be cautious. If I hit a person, it
means, I failed In my duty. The injured has a right against me to sue for the injury suffered,
(b) A is constructing a house. He should take all necessary precautions to avoid loss or injury to his
neighbours, workers, by passers, etc. If some of the bricks fall upon the head of a neighbour, and
cause serious injuries to him, A is held liable. Here A failed to take necessary precautions. His
omission caused injur^r to his neighbour. A right of action is accrued to his neighbour by the
omission of A.
(c) The supplier of food must supply the food according to the standards prescribed by law. The
Food Adulteration Act and other Acts impose certain duties upon the suppliers and manufacturers.
If they fail to supply the good food fit for human consumption, they will be held liable. [Refer to
“Donoghue vs. Stevenson case”.]
(d) The industrialists should take all precautionary steps in releasing the waste products from their
factories. The Environmental Laws impose certain duties upon them, and instruct them not to
pollute the environment, and not to cause injury harm to the people and animals. If any industrialist
wrongfully omits this duty, there arises tortuous liability. [Also refer to Environmental Law Notes]
(e) A should not publish any defamatory matter against any person. If A makes any defamatory
matter against B without proof, it means A violated his duty. B has a right of action against A. It
is As duty not to defame B. Such legal duties are imposed upon every person. Every citizen
Should obey them. If any person does not follow the legal obligations, and causes injury or harm
to any other person, he shall be held liable to pay damages. Every person has to respect the
rights of the other people. It is his duty.
Tort is an injury or a wrong committed with or without force to the person or property of another, and
such injury may arise by either of the nonfeasance, malfeasance, or misfeasance of the wrong-doer.
If the wrong-doer is a Government or a Government Corporation,
the Courts will not excuse it.
Not
only private persons, but also the Government should not breach their duty, and should not cause any
harm or injury to any citizen, contrary to the law.
# Municipal Corporation of Delhi vs. Subhagwanti (AIR 1966 SC 1750)
(Collapse of clock tower - Delhi Municipality)
Brief Facts: The Delhi Municipality failed to maintain clock tower correctly. Clock Tower was arranged
in the opposite the Town Hall in Main Bazar of Chandni Chowk, Delhi. It was under the control of the
Delhi Municipality, it did not maintain it properly. It was 80 years old using mortar. The normal life of
such type of construction was only 40-50 years. It fell down and caused the death of a number of
persons. The husband of Subhagwanti also died in that accident.
JUDGMENT:
The Supreme Court held that the Municipality was liable for its omission to take
appropriate care. It ordered Delhi Municipality to pay compensation to the dependants of the victims.
The defendant shall be held liable for his wrongful act or wrongful omission. However, such wrongful
act or a wrongful omission must be recognised by law. Mere moral or religious wrongful acts or
wrongful omissions do not make a person liable. Examples: Not helping to save a drowning child;
not helping a starving man; not helping an injured person in a road accident, etc. These are not legal
duties. If a person fails to save a drowning child, he cannot be made responsible for a tort. There
must be a legal duty to save a child from fire or drowning water, which is cast on fire serviceman, or a
If he fails, he may be held responsible for his wrongful act or
policeman, if he is present there.
wrongful omission.
K
i«
Unit -1: Nature of Law- of Torts
2.
5
(SN)
REMEDY OF LEGAL DAMAGES
The first essential element of a tort is that there
defendant.
must'be some act or orriTssiOn on the part of the
The Second essential element of a tort Is
that the injured is.entltled, to get legal damages.
These legal damages are unliquidated damages. Before an incident is occurred; the plaintiff and
defendant may not know each other, and even they.,may not know the nature of the tort before its
occurrence. In the case of breach of some duty, i.e., wrongful act or wrongful omission pfthe.defendant
in the tort, he is liable to pay legal damages to the plaintiff. This legal darhage is. unliquidated, i.e., not
assessed before such harm occurs. It cannot be ascertained before the tort. It can only be ascertained
after its occurrence.
In a breach of contract, the damages are liquidated,.!.e., calculated before its breach and atthetime of
thecontractitoritcanbeassessonthenatureofthecontract.
.
In a tort, the injured must prove what injury or damage he sustained by the .act. or ornission of the
defendant. There must be some act or .omission on the. part of the defendant. If the defendant has
not violated any.rights of the plaintiff, he is not liable to. pay compensation.
:
1.C.
■Q.l.
DEVELOPMENT OF LAW OF TORTS IN ENGLAND AND INDIA
(AnI., 2010, D.U.) (Anl.,'2011, B.U.) (Am.,-2012, G.U.)
Explain the development of Law of Torts in England.
' , (Anl., 2013, P.U.)_(Anl., 2014, .S.U.)
Q.2.. Do you feel that the development of Law of Torts in India is slow?
Q.3.
Discuss the origin and development of the Law of Torts in India.
Q.4.
“The birth ptace of Law of Torts is England."
Q.5.
Ubi Jus ibi remedium.
Q.6.
Development of Law of Torts in England.
Q.7.
The Law of Torts jn India.
(Anl.,.2010, B.U.)
If so, state the reasons. .
: ■":
•
..., (Anl.,; 2010, P.U,)
f
(Anl., 2009, D.U.)
— Explain this Statement.
J • J
/
• !
(SN)-(Anl., 2008, K.U.)
■
v
.
; .
.V,
(SN)
^ (SN)'
ANSWER:
(EQ/SN)
DEVELOPMENT OF LAW OF TORTS IN ENGLAND AND INDIA
INTRODUCTION: The Law of Torts originated about some five hundred years ago in England.' The
term “tort” was first reported in “Boulton v. Hardy
(1597) CrOwh Eliz. 547, 548)” case.
Still this
It is the creation of the judicial decisions ih various occasions
Branch of Law is in a developing stage.
suited to particular cases according to those case-laws.
have been brought into statutory force.
Recently some of the areas of this branch
“Ubi jus ibi remedium” (There is no wrong without a remedy) \s the basis bf the Law of Torts in
England. This is a Latin maxim. The meaning of the legal terms Of this legal maxim are',—
ubi. =
there.
jus. = the legal authority to do or to demand something.,
ibi.
= without.
remedium.= the right of action; the means given by
-v-
.
p.
:v
'
^
jaw fpr.the recovery of'assertion of a right... The
word‘remed/t/m'is also used as a synonym'acf/o',,
. ., .T-
This legal maxim implies equity, justice:and good conscience. r'According tO'this legal maxim,, the
common law gives a right or prohibits an injury, and also gives an appropriate,rpmedy to the aggrieved...
This legal maxim has a more extended signification in the Law bf.Tprts
.
! '
This legal maxim is considered sowaluable, that it led tO'the invention, to the variousTorms of action
and brought the remedies to the aggrieved, persons. The Statute of Westminister II. 1285 of England
recognised this principle first.
TrTl'; ■
Until, the new concept.came into existence, the concept of legal maxim; “ibi jus ubi remedium” was
prevailing in England..... It means reverse to “Ubi jus ibi remedium”. If'there was.anyi particularTight
granted by the statutory provisions, then only the.Courts used to grant rerpedy to the aggrieved person.
aside., Thus.thp..
If the aggrieved party couldn’t show any right in a n'ew situatioh, h)s .dajrh w^^
recbgnition to “Ubi jus ibi remedium” iri England has given “bii^h” and “|jfe” to the Jaw, of,torts...
Laterthe Courts recognisedfhis'principle (ratherthan to-saythis legabmaxim).; The;term.;“tort” was :
first reported in “Boulton v. Hardy (1597) Crown Eliz. 547, 548)” case. The Common Law Courts '
adopted this principle “Ubi jus ibi remedium”, and have begun to,giye.decisipns fQr.the.:P,u.blicgoo.d
in new situations, where there were no statutory provisions at that time.' The Corrimbn Caw Courts .
used to issue various Writs granting reliefs to the aggrieve'doefsbns; sTheyLsed to give ratio decidendi'
The Law of Torts
(reasons for the decisions) for each of such cases. Such case-laws have attained binding force not
only in England, but all over the world particularly in Cornmon Wealth countries.
Besides the above legal maxim, two leading maxims, i.e., “Iniuria sine damnum” (injury without
damage), and “Damnum sine iniuria” (damage without injury) have become the basis forthe Law of
Torts. Thus these legal maxims of equity created and influenced the Law of Torts.
The principles
of justice, equity and good conscience are giving assistance to their efforts. We will see the impact of
these legal maxims in coming Topics and in the text books of Law of Torts, more extensively and
elaborately.
The England Courts put life’ in these maxims, while deliWring their judgments in the concerned
cases of torts. These cases have become leading case-laws and obtained recognition all over the
world and now in universal application.
India got independence on 15-8-1947, and adopted democracy, i.e., the Government by the people,
for the people and to the people. Several election laws have been enacted. But there are certain
defects, rigging, booth capturing, casteism, money distribution, goondaism, help from bureaucracy to
the ruling parties, giving inappropriate assurances to the voters, etc., in our elections. We are bearing
all these vices quietly.
This is not the position in England. Even in 1703. in Ashby vs. White (1703) 1 Sm.L.C. 253), a leading
case on election laws, and Law of Torts, the plaintiff was prevented to vote to a candidate of his choice.
The defendant, an election officer, prevented the plaintiff. The candidate, to whom the plaintiff wanted
to vote, won in that Parliamentary election. However, the plaintiff sued the defendant contending that
his ‘right to vofe'was affected by the defendant’s act. The Court recognised his right and awarded
five pounds nominal damages to the plaintiff.
While disposing the above case. Holt, C. J. held: “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 men will multiply injuries, actions must be multiplied too, for every man that is
injured ought to have his recompense. ... Every injury imports damage, though it does not cost the
party one farthing. For a damage, not merely pecuniary but an injury imports a damage, when a
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 speaking them, yet he shall have an action. So, if a man gives another a
cuff on the ear, though it cost him nothing, no, not so much as a little diachylon (plaster), yet he shall
have his action, for it is a personal injury. So a man shall have an action against another for riding
over his ground, though it does him no damage; for it is an invasion of his property, and the other has
no right to come there.”
The Law of Torts is the creation of the judicial decisions in England. Almost all the prescribed and
leading cases explained in this book belong to the Common Law of India. “Injuria sine damno",
“Damnum sine injuria”, vicarious liability. Occupier’s Liability, Strict Liability, Res ipsa ioquitur, etc.!
principles are formed by the various decisions of the
Courts.
The English leading case-laws given in this book is not exhaustive, but only a very few. There are
hundreds of English case-laws. In each of such cases, a new principle/rule of law was laid down by
the English Courts. We find majority of English case-laws in the list of case-laws in the Indian text
books on torts. Often the Indian Courts also use to quote such case-laws and rules laid down in those
case-laws. [The students should quote a considerable number of case-laws for each Topic in the
examination and write the growth of the law of torts in England and India.]
The Consumer Protection is the recent origin. It is one branch of the Law of Torts. Upto the middle
of the 20th century, more importance was given to the Doctrine “Caveat Emptor” (Buyer beware).
Now the position has been changed and “Caveat Venditor” (Seller beware) is considered more
important in the Law of Torts and Consumer Protection.
This was due to Donoahue vs. Stevenson
f1932 AC 562.
Thus it can be concluded that the Law of Torts is the product of the judicial decisions, particularly by
the eminent and excellent knowledge and experience of the then English Judges.
Inspired by the decisions of the Common Law Courts, the Parliament of England enacted several
statutes. In fact, the Parliament of England followed the judicial activism. After considering the
principles and rules laid down in the leading case-laws, the England Parliament enacted several statutes
■n the nineteenth and twentieth centuries in the field of the Law of Torts.
to mention are,—
(a) The Fatal Accidents Act, 1846;
(b) The Workmen’s Compensation Act, 1897;
Some of them are worth
It
»
Unit -1: Nature of Law of Torts
(c) The Law Reform (Miscellaneous Provisions) Act,
1934;
(d) The Law Reform (Married Women and Tortfeasor’s) Act,
(e) The Law Reform (Contributory Negligence) Act, 1945;
(f)
7
1935;
TheCrown Proceedings Act, 1947;
(g) The Defamation Act, 1952;
(h) The Law Reform (Husbands Wife) Act, 1962;
(i)
The Congenital Disabilities (Civil Liability) Act, 1976;
G)
The Unfair Contract Terms Act, 1977;
(k) The Civil Liability Contribution Act, 1978;
(I)
The Consumer Safety Act, 1978, etc.
CONCLUSION: The Law of Torts originated in England, and developed particularly during the last
five hundred years. The people of England are the lovers of the individual rights and freedom.
They are more conscious about their rights. They behave with responsibility. The Great Britain is the
birth place of the modern Parliamentary Democracy, elections and Constitutions,
birth place of the Law of Torts.
LAW OF TORTS IN INDIA
It is also the
(SN)
The birth place oftheLawofTorts is England. Later it has crept entire world, including India. It is now
recognised as a separate branch of law. However, it can be said that it is not yet formulated into full
shape like that of criminal law, contractual law, marriage law, etc. The Jurisprudents and Justices all
over the world are providing new principles everywhere and in every moment.
Comparing with England and other developed countries,
India is backward in Law of Torts. We have
to accept this bare truth. The reasons for this backwardness are poverty, illiteracy, the spirit of toleration,
lack of consciousness about one’s rights, etc. The legal education is not sufficiently spread in India.
The delay in court proceedings, costs of the suits, etc., are the added reasons for the non-development
of the Law of Torts in India.
There are several public nuisance and negligence in India. Water pollution, airpollution, etc., causes
harm and injury to the public. The factories release the dangerous effluents and gases into the
environment causing ill-health to the people, flora and fauna. The Traffic pollution, land pollution, noise
pollution, water pollution, air pollution, etc., have been growing day-by-day in India due to urbanization
and industrialization.
In every product, adulteration is a general thing in India, viz., rtiilk, petrol, rice, oils, etc. The Indian
people are habituated for the worst conditions.
The country capital New Delhi is not an exception.
The pollution cover in New Delhi, and in every Metro Cities, is are Just like clouds. The administrators,
legislators and public do not take care of it. They do not take any steps to prevent it. The Australian
Cricket Team refused to play in New Delhi afraid the pollution. This is a shameful situation to our
country. Small countries, viz., Singapore, Israel, Taiwan, Japan, etc., are fast developing very fast and
neatly.
Added to these indifferences of the Indian public, the Courts are heavily burdened with huge number of
civil and criminal cases. Lakhs of cases are pending in the High Courts and the Supreme Court. Five
crore of cases are pending in all the Courts (excluding subordinate Courts) in India at the end of 2014
year. In the Subordinate Courts, it is highly impossible to assess the accurate figure of pending cases
which may cross crores.
Due to busy in civil and criminal cases, the Courts also neglected in the tort cases. If any person
struggles very hardly, he can get only nominal compensation. For example; Shyam Sunder vs.
State of Rajasthan (1974 AIR 1974 SC 890) case, the widow of the victim could get compensation
only Rs. 15,000/- after 21 years continuous struggle, that too from the Supreme Court. The most
miserable accident in Bhopal Gas Leak case, the compensation is not yet fully paid to the injured and
their dependents still now, even after 12 years passed.
However, the tendency is changing. The Law of Torts is growing in India too. The Consumer
Protection Act, 1986 is a welcome measure. It gave a considerable conscierice and awareness to
the Indian public. There are also several necessary amendments made in Labour and Industrial
Laws, Companies Act, Environmental Laws, etc., to protect the health of the people. The Supreme
Court and High Courts have been taking interest in environmental pollution cases and awarding huge
amounts of compensation to the victims. The Supreme Court in its latest cases adopted Absolute
Liability Principle, Precautionary Principle, Polluter Pays Principle, etc., in torts and environmental
cases.
8
The Law of Torts
Recently the Supreme Court also is taking initiative steps in the Law of Tofts. It is applying the
principles of Law of Torts in the environmental pollution cases. In December, 1996, the Supreme
Court ordered suo motto to close the aqua culture projects located in the coastal areas of India. It has
also taken several cases of torts causing harm and injury to the public viz., Tajmahal case, Vellore
Citizen’s Welfare Case, etc., restraining the industrialists polluting the environmerit. ,
The traffic police are harassing the public. The police do atrocities on the public. Their atrocities and
harassments will be higher at the time of V.I.Ps’. visits and tours in the streets in big cities. The Delhi
poiice bet an executive in May, 1997 during the Prime Minister’s car was passing on that road. The
traffic is stopped on the road for hours at the time of V.I.P. cars are passing on road. It is a clear tort
by Government. The Supreme Court and High Courts condemned this attitude and situation, and
seriously warned the Central and State Governments in this regard.
Pilot Clouise Mittel Butchart vs. Oberoi International (1997)
(not maintaining water level in swimming pool)
Brief.Facts: The plaintiff aged 30 years, lodged in the defendant’s Five Star Hotel on 11-8-1972.
There-was a swimming pool in that Rve Star Hotel. The water level in the swimfning pool was.not
maintained properly; It was very low, and not sufficient for diving. The management did not put any
warning boards. The plaintiff dived from the plot-form.of dive on 13-8-1972. As a result, he received
head injuries, and was admitted in Hospital. He was unconscious and paralysed. ; From the Hospital,
he, sued the defendant on 18-8-1975 for Its negligence not maintaining the correct water level in
swimming pool. While the case was pending, he died on 27-8-1985. The Delhi High Court gave the
judgment on 5-1-1997 in favour of the plaintiff ordering the defendant to pay Rs. 50,00,000/- to the
dependants of the plaintiff. Like this, in India too, the Law of Torts is growing day-by-day.
[Note: The student is advised to read the Environmental Law Notes, and quote the appropriate caselaws as many as he can do in the Examination Hall. There Is a close relationship between Law of Torts
and Environmental Law.]
1.D.
WRONGFUL ACT AND LEGAL DAMAGE /
[Injuria sine dam no & Damnum sine injuria]
Q.1.
Explain the maxims “Injuria sine damno" and “Damnum sine injuria" with the help of important case-law.
Q.2.
“There must be injury as well as damage.
Q.3.
Distinguish between Injuria sine damno and Damnum sine injuria.
•
.
(Anh, 2010, A.U.) (Anl.,'2012, Amb.U.) (AnI., 2012, P.U.) (AnI., 2012, D.U.) (AnI., 2013,' Burd.U.) (AnI., 2014, P.U.)
Damage alone will not do”. - Explain.
(AnI., 2013; D.U.)
■ '(AnI., 2012, Amb;U.)
[Note : Two questions on the same.Topic asked in AnI., 2012, Amb.U- Examination.]
Q.4. ■ Expiain'the maxirh “Damnum Sine Injuria” with
reference to decided cases.
(Feb., 2006; O.U.) (AnI., 2010, B.U.)
Q.5. Explain the statements “Damnum Sine Injuria” and “Injuria Sine Damnum” with reference to the decided cases'.
' " '-
(AnI., 2010, K.U.) (AnI., 201'1- N.U.) (Anl.,' 2012, A.U.j
Q.6.
Wrongful Act.
Q.7;
Legal Damage.
Q.8.
INJURIA SINE DAMNO.
(SN) (AnI., 2010, O.U.) (AnI., 2011, M.U:) (AnI., 2012,
Q.9.
Trespass.
'
(SN)
(SN)
N.U.) (AnI., 2013, K.U.) (AnI., 2014; A.u!)
(AnI;, 2014, Amb.U.)
Q.lb. befarriation.
.
-(SN)'
'
Q;11?'# Ashby vs. White (1073) 1 E.R. 417).
(SN) (AnI., 2012, K.U.) (AnI., 20)2, A.U.)
Q.12. # Bhim Singh vs. State of J.K. (AIR 1986 SC 494).
(SN) (AnI., 2010, b;u;) (AnI., 2012, M.U.)
0.13;" Exemplary Damages.
(SN)
Q.i4. Banker’s Refusal.
. ■ :{SN).
Q.15/# Marzetti ys. Williams (1830) 1 B&Ad 415).
■- ;! (SN)
Q.16.. Electronics Trade Ltd. Vs. Indian Technologist Pvt., Ltd. (AIR 1996 SC 2339).
Q.17. DAMNUM SINE INJURIA.
(SN)
(SN) (June, 2010, O.U.) (AnI:, 201T, A:U.) (AnI., ,2012, B.U.) (AnI., 2013,. GU.) (AnI., 2014, B.U.)
Q.18.#GloucesterGrammarSchoolCase(1410Y.B.HILL,11).Q.19. Moghul Steamship. Co. vs. Me. Gregor Gow; and Co. (1892 AC 25).
0,20: Chesmore ys. Richards. (1859) 7 H.C.L.. 349).
Q:21. Acton vs. Blundell (1848) 12 M & W 324).
. -
:
•
- (SN) (AnI., 2012, M.U.) .
r
A
.
I - -J
- '
Q.22. Town Area Committee vs. Prabhu Dayal (AIFt 1975
:r:(SN);.
r jsN):
-'(SN)'
All 132).
Q,23. # Bradford Corporatibri (Mayor of) vs,'Pickles (1895 A.C. 587);.
Q.24. # Electrochrome Ltd. vs. Welsh Plastics Ltd. (1968 2 AER 205)
L"
-V'■;
MV.
'/ ed: -V .'r
■(SN) (AnI.,;2010,, N,y.j':
..(SN)':
■
Unit -1: Nature of Law of Torts
9
ANSWER;
WRONGFUL ACT AND LEGAL DAMAGE /
[Injuria sine damno & Damnum sine injuria]
Wrongful Act. (n.) =
‘Wrongful act” is the privation of right, an injury, a designed or known
detriment.
Legal Damage, (n.) = lawful damages.
INTRODUCTION:
It is the principle/rule that every wrong-doer should pay compensation to the
aggrieved person/plaintiff. However, in some torts, the plaintiff receives injury, but his legal right is not
violated. This is called “Damno sine injuria”. In such case no damages are payable. In some
torts, the plaintiff does not face any actual damages, but his legal right is violated. This is called
“injuria sine damnum”. In such cases, the defendant is liable to pay damages, even though there
is no actual damage to the plaintiff.
Courts.
In assessing the legal damages, these two principles help the
In “Damno sine injuria”, the defendant need not pay compensation to the plaintiff.
In
“Injuria sine damnum”, the defendant is liable to pay compensation to the plaintiff. We shall now
know these two principles.
(i)
INJURiA SINE DAMNO
(SN)
Meaning:
injuria,
legal injury (not ordinary injury),
sine,
without,
damnum.
damage.
“Injuria sine damno” means “Violation of a legal right without causing any harm, loss or damage
to the plaintiff”.
Examples;
(a) Trespass: Trespass to another’s land does not cause any harm, loss or damage to the plaintiff.
However, his right of privacy and personal rights are affected by the trespass of the defendant.
Hence trespass to land is actionable even though no damage has been caused as a result of the
trespass,
(b)
Defamation:
damage to B.
If A makes a defamatory statement against B, there is no actual harm, loss or
In these cases, the plaintiff need not prove that he suffered harm, loss or damage by the wrongful act
or wrongful omission of the defendant. It is sufficient to prove that his legal right was violated by the
defendant. These are actionable perse, i.e., actionable without the proof of any damage or loss. This
is one class of torts. Defamation, trespass, etc., come under this category; In the second class of
torts, the plaintiff is entitled for compensation on the proof of some actual harm, loss or damage by the
wrongful act or wrongful omission of the defendant. Negligence, nuisance, etc., come under this
category, “injuria sine damno” refers to the first class of torts above mentioned.
# Ashby vs. White (1073) 1 E.R. 417)
(SN)
(Rejection of voter s right to vote)
BRIEF FACTS: It is a leading case explaining the maxim “Injuria sine damno”. The plaintiff was a
qualified voter at a Parliamentary election. The defendant was a returning officer. The defendant
wrongfully refused to take plaintiff’s vote. In fact, the candidate to whom the plaintiff wanted to vote,
had won in the election. There was no actual damage suffered by the plaintiff. The plaintiff sued the
defendant alleging that the defendant did a wrongful act by restraining him not to vote.
JUDGMENT: The Court of Appeal held that the defendant was liable, and. granted compensation to
the plaintiff. The Court of Appeal under the Chief Justice Holt observed: “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. ”
Principle laid down: The Court of Appeal laid down the principle as follows: “Every injury imports
damage, though it does not cost the party one farthing. For a damage is not merely pecuniary, but an
injury imports damage, when a 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 speaking them, yet he shall have an action.
So, if a man gives another a cuff on the ea,r though it cost him nothing, not so much as a little diachylon
(plaster) yet he shall have his action, for it is a personal injury. So a man shall have an action against
another for riding over his ground, though it does him no damage: for it is an invasion of his property,
and the others has no right to come there. ”
10
The Law of Torts
# Bhim Singh vs. State of J.K. (AIR 1986 SC 494)
(Wrongful Detention of MLA)
The plaintiff-Bhim Singh was an M.L.A. of J & K Assembly. He was wrongfully detained by the police,
while he was going to attend the Assembly Session. The Supreme Court held that the detention of the
plaintiff was against the Fundamental Right to personal liberty guaranteed under Article 21 of the
Constitution. The Supreme Court ordered for the release of plaintiff and also awarded exemplary
damages amounting to Rs. 50,000/-.
PROBLEM: An MLA was wrongfully detained by the police while he was going to attend the Assembly
Session. Can he claim compensation against the State? Decide.
(May, 2010, O.U.) (May, 2012, B.U.)
SOLUTION: Yes. The MLA can claim compensation against the State as in # BhIm Singh vs. State
ofJ.K. (AIR1986SC494).
In cases of “Injuria sine damno”, damages are awarded to the injured persons, whose rights are
violated. The quantum of compensation may be just five rupees. But this small amount is the
recognition of the plaintiff’s right. Sometimes it may be awarded up to lakhs of rupees. The purpose
of law is to recognise the legal right of plaintiff, and to have the legal remedy by the way of payment of
damages,
(c)
Banker’s Refusal:
PROBLEM: A, a banker, refuses to honour the customer’s cheque though customer having sufficient
money in his account. Whether does an action lay against
Banker?
Decide.
(May, 2006, B.U.) (May, 2005, au.)
SOLUTION: A customer is entitled to sue the banker, if the banker refuses to pay the cheque amount
having sufficient funds in his account. For refusing to honour the customer’s cheque, although the
customer does not thereby sustain any actual loss or damage, still he is entitled to damages under the
Doctrine of Injuria sine damnum. This decision was given in # MarzettI vs. Williams (1830) 1 B&Ad
415).
(ii)
DAMNUM SINE INJURIA
(SN)
Meaning:
Damnum/damno. =
damage.
sine,
=
without.
injuria.
=
legal injury (not ordinary injury).
“Damnum sine injuria” means “causing of damage to the plaintiffwithoutviolationofhis legal right”.
Such types of damage are occurred, in the exercise of legal rights by one. It results the consequential
harm to the other. “Damnum sine injuria” can also be equated with the legal maxim “A tort is a
civil wrong, but all civil wrongs are not torts. ”
# Gloucester Grammar School Case (1410 Y.B. HILL 11)
(SN)
(Competition between Schools - no injury)
Brief Facts:
The plaintiffs were maintaining a school. They charged 40 pence per student per
quarter. The defendants established a rival school, nearto the plaintiffs’ school. Due to the competition,
the defendants reduced the fee from 40 pence to 12 pence per student. It caused a considerable loss
to the plaintiff. They sued the defendants.
JUDGMENT: The Court held that the plaintiffs had no remedy for the loss thus suffered by them.
While delivering judgment. Justice Hankford observed: “Damnum may be abseque injuria, 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. ”
Moghul Steamship Co. vs. Me. Gregor Gow and Co. (1892 AC 25)
(Competition between transporting companies)
The plaintiffs and the defendants were the transporting companies. The defendants reduced the
freight charges with an intention of causing damage to the plaintiffs. The House of Lords held that the
plaintiffs had no cause of action.
Unit -1: Nature of Law of Torts
11
Chesmore vs. Richards (1859) 7 H.C.L. 349)
(Reduction of water level)
The plaintiff was the mill-owner.
rainfall.
He was using water for his mill from a stream which was fed by
The flow of
The defendants sunk a well on their land and pumped large quantity of water.
water to the plaintiff was reduced. This caused loss to the plaintiff.
The defendants were held not
liable.
Acton vs. Blundell (1848) 12 M & W 324)
(Coal pit - Reduction of water level)
The defendants dug the coal pit of their own. This affected the plaintiffs well, at a distance of about
mile.
1
The defendants were not held liable.
Town Area Committee vs. Prabhu Dayal (AIR 1975 All 132)
The plaintiff constructed a building without obtaining proper permission from the Town Area Committee.
The Town Area Committee-the defendants demolished the construction. The plaintiff alleged that there
were quarrel and personal grudges between him and some of the officers of Town Area Committee,
who caused the demolition and their act was mala fide. The defendants proved that they demolished
the plaintiff’s building according to law, and the plaintiff himself violated the Municipal Rules. Court
held that the defendants were not liable.
# Bradford Corporation (Mayor of) vs. Pickles (1895 A.C. 587)
(Not allowing water to flow to plaintiff’s land)
Brief Facts: The plaintiffs’ land was situated in down area, and the defendant’s land was situated in
upper area at a higher level. The water was flowing from higher level to lower level, which the plaintiffs
had been using it. There were talks between the plaintiffs and the defendant for the sale of defendant’s
land. The talks were not fruitful, as the plaintiffs did not agree to pay the price offered by defendant,
thinking that it was an extraordinary rate than the market price. Keeping in view of it, the defendant
intended to cause loss to the plaintiffs. Thus he sank a shaft over his own land. As a result of shaft,
the flowing of the water to the plaintiff’s land was decreased and discoloured. Due to insufficiency of
water, the plaintiffs were put in heavy loss. They sued the defendant praying the Court to issue an
injunction to restrain the defendant from sinking the shaft.
JUDGMENT: The House of Lords gave the judgment in favour of the defendant. They opined that the
defendant was exercising his own right in his own land, although he had malice and intention to cause
harm to the plaintiffs. Lord Ashbourne observed: "The plaintiffs have no cause unless they can
show that they are entitled to the flow of the water in question and that the defendant has no nght to do
what he is doing
The law stated by this House in Chesmore vs. Richards cannot be questioned.
M.r Pickles has acted within his legal rights throughout; and is he to forfeit those rights and be punished
for their legal exercise because certain motives are imputed to him? If his motives were the most
generous and philanthropic in the world, they would not avail him when his actions were illegal. If his
motives are selfish and mercenary, that is no reason why his rights should be confiscated when his
actions are legal.”
Principle lay down: Where a defendant exercises his legal right, though it is motivated by malice,
and such exercise of his legal right results harm, injury or loss to the plaintiff, the defendant is not held
liable. If the defendant exercises any illegal act or omission, then only he is held responsible.
# Electrochrome Ltd, vs. Welsh Plastics Ltd. (1968 2 AER 205)
(Damnum sine injuria)
Brief Facts: The factories of the plaintiff and the defendant were located in an industrial estate.
There was a fire hydrant near the defendant’s factory. The worker of the defendant drove the lorry
negligently and caused damage to the fire hydrant. As a result of this, supply of water through the
main was cut off. Due to this, the water was not supplied to the plaintiff’s factory, and his work was
stopped for one day. The next day the water works department came and repaired the main water
pipe. The plaintiff sued the defendant to recover their loss for one day.
JUDGMENT:
The House of Lords held that the defendant was not liable, because there was no
injury, as the duty not to damage the hydrant was owed to the owners of the hydrant that was damaged
and not the plaintiffs. The defendant did not violate the plaintiffs rights.
PROBLEM: X, a stranger, blocked the water pipes of the wash basin and opened the tap. Over
flowing of water damaged the Plaintiff’s goods. Whether defendant is made liable?
(Sept., 2014, O.U.)
12
The Law of Torts
SOLUTION:
No.
The defendant is not liable.
In # Electrochrome Ltd. vs. Welsh Plastics Ltd.
(1968 2 AER 205), the the House of Lords gave judgment in favour of the defendant holding that he
was not liable.
Conclusion: Thus by the above case-laws, it is proved that “Injuria sine damno” is actionable, but
“Damnum sine injuria” \s not. [This problem is concerned both Damnum sine injuria and Nevus
acftvs /nferven/ens (a new act intervening).]
1.E.
DISTINCTION BETWEEN THE TORTS AND THE CRIME
Q 1.
Explain the difference between Tort and Crime. Give suitable examples
Q 2.
Distinguish ‘Tort’ from ‘Crime’ and ‘Breach of
Q 3
Distinguish between Torts and Crime
Q 4.
Define “Tort”, and distinguish it from “Contract”.
Q.5
Explain the differences between Tort and Contract,
Q 6
Explain the elements of a tort and distinguish
Q.7
'Tort IS a cmI wrong ”
(Oct, 2012, O U )
Contract’
(June, 2010, O U ) (May, 2011, B U )
(Apr, 2002, O U ) (Feb , 2006, S VU ) (Jan , 2007, Burd U )
-. (Aug , 2006, O U )
and Tort and Crime
(May, 2006, B U.)
’ (Sept', 2005, d U )
it from Crime
Do you agree with the statement"?
How does it differ from crime'?
Q 8 ' Define “Tort”, and distinguish it from Breach of Contract,'Crime and Breach of Tort
Q 9
“A Tort is a civil injury, but all civil injunes
are not torts
Discuss
(AnI, 2005, S U.)
(Aug , 2004, O U ) (Jan , 2003, O'U )
(Aug , 2004, O U ) (Apr., 2002, O U ) (Dec , 2001, O U )
[Also refer to Topic 1 A.]
ANSWER:
DISTINCTION BETWEEN THE TORTS AND THE CRIME
(EQ/SN)
INTRODUCTION:
“All wrongs are not torts.” Tort is a civil wrong. However, every civil
wrong is not a tort. There is a lot of differences between a tort and a crime; between a tort and a
breach of contract; between a tort and breach of trust; and between a tort and a quasi-contjact. First
let us see the differences between a tort and a crime, which are given hereunder;
1.
TORTS vs. CRIMES
DISTINCTION BETWEEN TORTS AND CRIMES
TORTS
1.
A tort is a species of a civil wrong. It gives rise
to civil proceedings.
2
In a tort, the plaintiff is the injured party.
CRIMES
1.- Crimes are those which result into punishment
of the criminal.
2.
In a crime, thewictim is an individual The
criminal proceedings agairist the wrong-doer are
3.
A tort is violation of the private rights of an
individual.
.
3.
4.
The wrong-doer is liable to pay compensatiori to
the injured party.
4.
5.
The purpose of awarding compensation to the
injured party is to make good the loss suffered
5.
6.
6
7.
The nature of punishment is lighter, that too in
the shape of awarding damages.
In tort, the intention is not important factor.
8.
Mens rea has no place in tort.
8.
9.
The principles of "Injuria sine damnum",
9.
instituted by the State.
A crime is a breach of public rights and duties
which affect the whole community.
- The wrong-doer is generally .punished
Sometimes the fine is imposed. But that fine
amount is credited into the State account.
byhim...
The purpose of the criminal law is to protect the
society by preventing and deterring the offender,
from committing further offences.
7.
-
The nature of punishment is heavy and serious
In the shape of imprisonmentln crime, mens rea (ill-intention) plays an
important factor in determining the criminal
liability. .
Generally an act shall not be punished as a ’
crime, unless there is mens rea actually present
in the wrong-doer.
"Damnum sign injuria", "Vicarious Liability'.',
"Respondent Superior", "Absolute Liability",
"Precautionary Principle", "Polluter-Pays'
Principle", etc., are recognised in the Law of
In majority criminal cases, these principles are
not adopted in criminal law.
Torts.
10.
Burden of proof lies on the complainant/injured.
10. Burden of proof lies on the State The injured
11.
Natural Principles of Justice,, good conscience,
equality, etc., are followed in fixing the wrongdoer'sl liability.''
11 Strict rules of procedure arid principles or '
followed In fixing the liability of the criminai.
becomes a witness only.'
,
Unit -1: Nature of Law of Torts
12. Most of the Law of Torts is judge-made-law. It
13
12. All the crimes are defined and codified. Criminal
is not codified.
Law is codified.
13. It is the latest subject.
13. It was the oldest law
14. The offences under the torts do not involve any
element of moral turpitude. The wrong-doers of
14. The offences defined under the criminal law are
notorious for moral unscrupulousness. They are
treated as morally depravated, aggravated
heinous and dangerous to the individuals and
torts are punished by way of damages for the
better social welfare and efficiency.
also to the society.
“All civil wrongs are not torts.” Atort is a civil wrong. But all civil wrongs are not torts. Injunctions,
specific restitution of property, and the payment of liquidated damages of money by way of penalty, etc.
Legal remedies are available to all civil wrongs. These legal remedies are not available in case of tort.
In a tortuous wrong, there are no liquidated damages. Only unliquidated damages are available to the
injured persons.
Example: The obstruction of a public highway is a civil Injury. The aggrieved party can institute civil
proceedings. It is not a tort. The obstruction of a public highway becomes as a tort in a special
circumstance, i.e., special damage suffered by an individual. Then only he can claim for damages
under tortuous liability at his suit.
1.F.
Q.l.
DISTINCTION OF TORTS AND BREACH OF CONTRACT
Write the distinction between Torts and Breach of Contract.
ANSWER:
No civil wrong is a tort, if it is exclusively the breach of a contract. The Law of Contracts Is a separate
The contractual liability and the tortuous liability are
department, and the Law of Torts is another.
governed by different principles.
In certain circumstances, from an incidence both the contractual liability and tortuous liability may
arise..
Examples: (a) A has obtained a water drum from B on a contract with a condition to return it within
two days. A has not re-delivered water drum to B after two days. A intends to retain it for himself.
Thus he makes a breach of contract and also conversion.
His act is a breach of contract, because he
promised expressly to return water drum. It is also not merely a breach of contract, and therefore also
a tort, because he would have been equally liable for detaining and other man’s property, even if he had
made no such contract all.
(b) A is the car owner. B has taken A’s car on hire. There is a contract between
C has taken the car and damaged it. There is no direct relation between A and C.
from the contract between A and B, C is liable to A. B made a breach of contract.
in such a situation that he cannot break the duty. There was omission to take care
A and B. From B,
It is true that apart
C has put himself
on the part of C. It
is a tort.
Let us see the differences between Tort and Breach of Contract, which are as follows:—
DISTINCTION BETWEEN TORTS AND BREACH OF CONTRACT
TORTS
1.
2.
In case of tort, damages are always
unliquidated, or unascertained and invariably
they are not, and in fact, cannot be actual.
A tort is a violation of a right in rem, i.e. of a
BREACH OF CONTRACT
1.
2.
In case of breach of contract injured party has
right only for liquidated damages, i.e. pre-settled
or actual damages.
A breach of contract is an infringement of a right
in personam, i.e. a right available only against
some determinate person or body and in which
the community at large has no concern.
3.
The duty violated, in the case of a breach of
right vested in public at large, either personally
3.
or as a member of community and available
against the world at large.
In tort, the duty is imposed by the law, and is
owed to the community at large.
contract, is a specific duty owed by either party
to the other alone. It does not owe to the
community at large.
4.
Sometimes, in tort, motive is an essential factor
4.
In breach of contract, the motive is not an
essential factor. The defaulting party has to pay
the pre-settled and actual damages.
Law relating to contract has been codified.
to determine the liability, e.g. Malicious
prosecution.
5.
Law relating to tort has not been codified. It Is a
judge-made law.
5.
6.
In tort, a person injured may be entitled for such
damages which he has not actually suffered.
6.
In breach of contract, the party is entitled only
for actual damages.
The Law of Torts
14
7.
Exemplary or vindictive damages are awarded
7.
in tort.
8.
The factors do not affect on action of tort.
8.
Exemplary or vindictive damages are not
awarded in the breach of contract, except in an
action for breach of promise of marriage.
No compensation is paid in cases of contracts
induced by fraud, misrepresentation, mistake,
coercion or undue influence.
1.G.
DISTINCTION TORTS vs. TRUSTS AND
OTHER EQUITABLE OBLIGATIONS
Q.l.
Write the distinction between Torts and Trusts
Q.2.
Write the distinction between Torts and Quasi Contracts.
and Other Equitabie Obiigations.
ANSWER:
Another kind of civil wrongs, which are not torts, are breaches of trusts or other equitable obligations.
The law of torts has been formulated from the judicial decisions, especially in the Common Law of
England. The Law of Trusts and Equitable Obligations originated and developed in the Court of
Chancery (Court of Equity). The law of trusts and equitable obligations belong to separate department,
and the law of torts belongs to another department. Both of them are governed by different principles.
DISTINCTION BETWEEN TORT AND BREACH OF TRUST
TORTS
BREACH OF TRUST
(EQUITABLE OBLIGATION)
—
1.
Tort is a civil wrong. Civil proceedings shall be
1.
instituted.
-■
■
T."__
Breach of Trust and other equitable obligations
are criminal offences, and are liable for
punishment with imprisonment or fine or both.
2.
It is not codified law.
2.
It is a codified law.
3.
Motive is irrelevant.
3.
Motive is relevant.
4.
The law of torts in its origin is a part of the
4.
Breach of Trust and other obligations fell
exclusively within the jurisdiction of equity.
The plaintiff and the defendant know each other
from the beginning. In fact the law of the trust is
depended upon the trust on each other.
Injunctions, specific restitution of property, and
the payment of liquidated sums of money by
way of penalty, etc. are legal remedies available
to the plaintiff. Besides them, the defendant is
also liable for fine or imprisonment or both under
the criminal proceedings.
common law.
5.
6.
The plaintiff and the defendant may or may not
know each other previous to the incidence of
tortuous liability.
The legal remedy for a tortious liability is
unliquidated damages.
5.
6.
TORTS vs. QUASI-CONTRACTS
DISTINCTION BETWEEN TORTS VS. QUASI-CONTRACTS
TORT
1.
The plaintiff is entitled to get unliquidated
QUASI-CONTRACT
1.
damages.
2.
In the law of torts, the duty is towards persons
2.
generally. Every person is under certain
obligations against other public, i.e. not to cause
injury or harm, etc. These duties and rights of
every person is "rights in rem."
3.
In tortuous liability, the plaintiff and the
defendant may or may not know each other,
before the tortuous liability arises.
3.
Injunctions, specific restitution of property, and
the payment of liquidated damages of money by
way of penalty, etc. are the legal remedies
available for plaintiff under quasi-contracts.
There is a contract implied by the law, and
therefore contractual liability is imposed upon
the defendant. The plaintiffs rights against the
defendant are "rights in personam."
In quasi-contractual obligations, generally, the
plaintiff and defendant know each other from the
beginning, and then it ripens into contractual
liability.
Allot at least two to three hours per dav to study the subjects of LL.B.
Do practise writing every day. It enhances the writing speed in the examination hall.
Do read and practise English Grammar every day. It enhances the confidence.
Do practise communication skills every day. It enhances the
confidence.
L4
Unit -1: Nature of Law of Torts
1.H.
15
GENERAL PRINCIPLES OF TORTUOUS LIABILITY /
THEORIES OF LIABILITY OF TORTS
Q.1.
[^rBa“Tort”, and discuss the statement that “Law of
Q.2.
Some jurists are of the view that there is no iaw of Tort, but only "Law of Torts".
Q.3.
'The Law of Tort is a system of estabiishing iiabiiity:
Q.4.
Expiain whether it is “a Law of Tort" or “Law of Torts”.(Ani. 2005, P.U.) (Ani., 2010, P.U.) (Ani., 2012, M.U.) (Ani., 2013, S.K.U.)
Q.5.
Discuss the generai principies of iiabiiity in Tort.
Q.6.
“Fauit has never been and is not today an essentiai eiement in tortuous Iiabiiity.”
Torts’ is concerned with the question of iiabiiity.
(June, 2009, O.U.) (AnI., 2010, A.U.) (AnI., 2011, B.U.) (Ani., 2012, M.U.) (Ani., 2012, N.U.) (Ani., 2013, A.U.)
Discuss this as per your own opinion.
(Jan., 2007, Burd.U., W.B.) (Ani., 2010, K.U.) (Ani., 2010, G.U.)
Comment.
Expiain the foundation of tortuous iiabiiity.
(Sept., 2005, O.U.) (Ani., 2010, K.U.) (Ani., 2011, S.K.U.)
(Ani., 2004, P.U.) (Jan., 2004, N.U.)
—
Criticaily examine this statement.
(June, 2003, M.U.)
Q.7.
"Ubi jus ibi remedium
Q.8.
“Lex non debef deficere conquerentibus in Justitia
and damaged, he shall have the remedy.)
Q.9.
Is it the law of tort?
(SN)
Q.10. Is it the law of tort?
(SN)
Q.11. Rookes vs. Barnard” (1964).
(SN)
Q.12. Donoghue vs. Stevenson (1932 AC 562).
(SN)
Q.13. ‘Ibi Jus ibi remedium’. (There is no wrong without a remedy).
(SN)
(There is no wrong without a remedy.)
exhibenda.”
(SN) (Ani., 2010, K.U.)
(The law wills that in every case where a man is wronged
(SN)
Q.14. Pigeon-hole Theory.
(SN) (Jan., 2005, A.U.) (June, 2001, M.U.)
Q.15. Chapman vs. Pickersgill” (1762) (2) Wils. 145).
(SN)
Q.16. Polluter Pays Principle.
(SN)
ANSWER:
GENERAL PRINCIPLES OF TORTUOUS LIABILITY / THEORIES OF LIABILITY OF TORTS
INTRODUCTION:
Law of Torts is a new branch of law.
It is created by numerous judicial decisions.
The new principles have been adopted and accepted by
welfare or public policy. First these ideas have been recognised by the society. Then they are duly
recognised by Courts. These new principles in the area of Law of Torts gradually formed a new
content and at last a new form. For the Law of Negligence, Donoghue vs. Stevenson (1932 AC
562) is the leading case imposing the tortuous liability upon the negligent manufacturers. Rylands
vs. Fletcher (1868 LR3 HL330 : LRI.Ex,265) imposed strict liability upon the defendant who neglects
his duty of care. Following these case-laws, in India, “Pilot Cluise Mittel Butchart vs. Oberoi
International, New Delhi (1997)”, Delhi High Court gave the Judgment on 5-1-1997 in favour of the
injured-plaintiff, awarding five lakh rupees as compensation. In this case, the plaintiff dived in the
swimming pool of the defendant’s hotel on 11 -8-1972. The water level in the swimming pool was very
low. He sustained head injuries and became unconscious. He was admitted in hospital. He sued
the defendant-Hotelforthe compensation. While the proceedings were continuing, he died on 27-81985. The Delhi High Court held that the management of Oberoi International was negligent, and did
not maintain the correct water level in swimming pool, due to which the plaintiff died.
Courts to accommodate new ideas of social
In Environmental Pollution cases, i.e., Bhopal Disaster case, Olieum Gas Leak Case, etc., the
Supreme Court adopted the Absolute Liability Principle refining the Rylands vs. Fletcher’s Strict
Liability Principle. In Vellore Citizen’s Welfare Case, Ganga Pollution Case, Aqua Farm case,
etc., the Supreme Court adopted Poiiuter Pays Principle.
In “Rookes vs. Barnard” (1964) the person intimated had to act to the detriment of a third-party, and
the House of Lords allowed an action by third party thus suffering due to intimidation. Itis a modern
example of final recognition of a new tort of intimidation, founded in this case-law.
Thus there are various modern principles and rules created in the field of Law of Torts, imposing the
tortuous liability upon the wrong-doers. There are two views prevailing on the subject of existence of
some broad unifying principle of ‘all tortuous liability’. One view is called “Winfield’s Theory”, and
another is called “Salmond’s Theory” or “Salmond’s Pigeon-hole Theory”.
1.
THE WINFIELD’S THEORY
(SN)
In his book “Torts”, Salmond raised a question on the subject of existence of some broad unifying
principle of all tortuous liability; “Does the law of torts consist of a fundamental general principle
that it is wrongful to cause harm to other persons in the obscene of some specific ground of
justification or excuse, or does it consist of a number of specific rules prohibiting certain
kinds of harmful activity and leaving all the residue outside the sphere of legal responsibility.
16
The Law of Torts
Analyse of the above question is:—
1.
“Is it the law of tort?” Is there only one fundamental general principle that it is wrongful to cause
harm to other personal in the absence of some specific ground ofjustification or excuse?
2.
“Is it the lavy of torts?”
Does it consist of a
number of specific rules prohibiting certain kinds
harmful activity and leaving all the residue outside the sphere of legal responsibility?
of
He asserted that “It is the Law of Tort”. He asserted his views in
He based on the maxim “Ubi jus ibi remedium” (There is no wrong
Winfield accepted the first view.
his book “The Law of Tort”.
without a remedy.) It is an elementary legal maxim. Whenever the common law gives a right or
prohibits an injury, it also gives a remedy. Upon this principle, wherever the common law imposes a
duty, and no other remedy can be shown to exist, or only one which has become obsolete or inoperative,
the Court of Queen’s Bench will interfere by mandamus. Supporting this maxim, another maxim
says: “Lex non debet deficere conquerentibus in Justitia exhibenda.” (The law wills that in
every case where a man is wronged and damaged, he shall have the remedy.)
According to Winfield’s theory, there is no tort without a remedy. For every tort, there is a remedy in
the law. Negligence, assault, nuisance, defamation, battery, etc., are all in simple and single one tort.
However they may be called in different names, but their tortuous liability is one. This only one
tortuous liability includes the oldest forms of torts and invites the newly accepted forms of torts. There
is no need to open a separate rule for every title of acts, i.e., for assault, nuisance, defamation, etc.
Only one Title, i.e.’The Law of Tort” Is sufficient to cover all titles and branches of it. Every wrongful
act, for which there is no justification or excuse, is treated as a tort. Pollock also supported Winfield’s
theory.
Winfield’s views were supported in “Ashby vs. White” (1703) 2 Ld. Raym. 938 (955) case. Holt C.J.
delivering judgment in this leading case said: “If a man has a right, he must have a means to vindicate
and maintain it, and a remedy if he is injured in the exercise and enjoyment ofit; 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.”
The maxim ‘ibi jus ibi remedium’ (There is no wrong without a remedy) has been considered so
valuable, that it led to the invention of the form of action called an action on the case. The principle
was adopted by Courts of Law. According to it, it is sufficient to prove that the plaintiff sustained harm
or injury by the wrongful act or omission of the defendant, in which case, although there be no precedent,
the common law will judge according to the law of nature and the public good.
Pratt C.J. also supported Winfield’s views. While disposing the case “Chapman vs. Pickersqill”
(1762) (2) Wils. 145), he remarked: “Torts are infinitely various not limited or confined. ”
For the first time, in Ashbv vs. White (1703) 2 Ld. Raym. 938 (955), a voter challenged the polling
officer, who restrained him from voting, contending that his right of vote was violated. Before this
case, there were no such cases and precedents. For the first time, the House of Lords accepted
the voter’s argument, and laid down a new rule in law of torts. If the House of Lords waited for a
precedent, and to establish such a precedent would lead to multiplicity of actions. New rules are born
or developed basing upon the old rules. Every year new principles in the law of torts are incorporated
developing it widely. The early views of negligence were limited. But now-a-davs its scope has been
widened. In Rylands vs. Fletcher case a new form of “Strict Liability” principle has been adopted,
even though there is no negligence on the part of the defendant. The Supreme Court adopted still finer
principle of “Absolute Liability” in several tort and environmental pollution cases.
2.
THE PIGEON-HOLE THEORY
(SN)
This theory was propounded by Sir John Salmond. According to him as many pigeon-holes are
there in a pigeon-nest, there are so many pigeons, sufficient to occupy the holes. For a new pigeon,
there is no hole. A separate hole has to be constmcted fora new pigeon. Similarly, as many kinds of
injuries or harms are there, there must be so many tortuous liabilities. There is no single and general
liability. There will be no single general remedy. There Is no fundamental general principle. Certain
principles should have been framed under tortuous liabilities. The plaintiff/injured has to select the
appropriate principle to meet the justice. If he falls to seek the appropriate principle, that means the
defendant shall not be held liable and he shall be
deemed to have not committed any tort on the
plaintiff.
Therefore, Salmond said:
“it is the Law of Torts”. According to him, the Law of Torts consist only
a number of specific wrongs beyond which the liability under this branch of law cannot arise. He
named his book “Law of Torts”.
17
Unit - I: Nature of Law of Torts
Salmond explained: “Just as the criminal law consists of a body of rules establishing specific offences,
so the Law of Torts consists of a body of rules establishing specific injuries. Neither in the one case
nor in the other, there is any general principle of liability. Whether I am prosecuted for an alleged
offence or sued for an alleged tort, it is for my adversary to prove that the case falls within some
specific and established rule of liability, and not forme to defend myself by providing that it is within
some specific and established rule ofJustification or excuse.”
Salmond questioned the existence of tortuous liability, and answered favourably to the second half of
the question, i.e., “It is Law of Torts”. Winfield favoured the first half of the question, i.e., “It is Law
of Tort”.
Dr. Jenks, Heuston, Dr. Glanville Williams, etc., are the supporters of Salmond’s Pigeon-hole Theory.
According to this theory, whenever a new problem arises, a new principle is propounded by the judiciary.
A new rule or a new principle is constructed enabling the plaintiff to get compensation. If the pigeon
holes are not sufficient for a new-comer, a separate hole can be added to the nest accommodating the
new one.
The Supreme Court decisions in Environmental Pollution cases prove that Salmond’s
Pigeon-hole. Theory is correct. The western countries have been following Strict Liability Principle/
Rylands vs. Fletcher’s Principle. Whereas the Supreme Court propounded “Absolute Liability”
principle in Bhopal Gas Leak case, Olieum Gas Leak Case. Vellore Citizen’s Welfare Case, etc. It
also added “Polluter Pays Principle” to such circumstances.
To say that the law can be collected into pigeon-holes does not
mean that those pigeon-holes may not be capacious nordoes it mean that they are incapable of being
Dr. Glanville Willliams observed:
added to. ”
Each has its
The two theories are most valuable views in the Law of Torts.
prominence in explaining the tortuous liability. Dr. Williams observed: “The first school has shown
that rules of liability are very wide. The second school has shown that some rules of absence of
COMPROMISE:
liability are very wide. Neither School has shown that there is any general rule, whether ofliability or of
non-liability, to cover novel cases that have not yet received the attention of the Courts. In a case of
ifrst impression—that is, a case that falls under no established rule or that falls under two conflicting
rules—there is no ultimate principle directing the Court to find for one party or the other.... why should
we not settle the argument by saying simply that there are some general rules creating liability.... and
some equally general rules, exempting from liability... Between the two is a stretch of disputed territory,
with the Courts as an unbiased boundary commission. If, in an unprovided case, the decision passes
for the plaintiff, it will be not because of general theory of liability but because the Court feels that there
is a case in which existing principles of liability may properly be extended.”
Winfield also accepted the nobility of Salmond’s Pigeon-hole Theory. He observed: “From a narrow
and practical point of view, the second theory will suffice, but from a broader outlook, the first is valid.
If we concentrate attention on the Law of Tort at the moment (which is what most practitioners do),
entirely excluding the development of the law, past and future, then it corresponds to the second
theory. If we take the wider view that the law of tort has grown for centuries and is still growing, then
the first theory seems to be at the back of it. It is the difference between treating a tree as inanimate
for the practical purposes of the moment (e.g., for the purpose of avoiding collusion with it, it is as
lifeless as a block of marble) and realising that it is animate because we know that it has grown and is
still growing.”
1
fGADE
Veera Reddy
I
I
I
I
I
I
I
I
LL.M. ENTRANCE TEST
(Multiple Choice Questions with Answers)
(Also useful for U.P.S.C., A.P.P.S.C., Civil Prelims, etc.)
JURISPRUDENCES LEGAL THEORY
THE CONSTITUTION OF INDIA
PUBLIC INTERNATIONAL LAW
I MERCANTILE LAW(THE INDIAN CONTRACT ACT, 1872)
I LABOUR LAW (THE TRADE UNIONS ACT, 1926, + THE INDUSTRIAL DISPUTES ACT,
I THE INDIAN PENAL CODE, 1860 +THE LAW OF TORTS
I
1947)
THE INTELLECTUAL PROPERTY LAWS
INo. of Pages : 480
No. of Bits : About 2800
Cost: Rs. 300/-
.
18
The Law of Torts
1.1.
FAULT
Q.1
Explain the role of “Fault” in the Law of Torts.
Q.2.
Fault.
Q.3.
(SN)
‘Magna negligentia culpa est, magna culpa dolus est.”
(SN)
Q.4.
Strict Liability.
(SN)
Q.5.
Rylands vs. Fletcher case.
(SN)
Q.6.
Absolute Liability.
(SN)
Q.7.
KI.C. Mehta vs. Union of India (AIR 1987 SC 1087) (Oleum Gas Leak Case).
(SN)
ANSWER:
FAULT
(EQ/SN)
MEANING:
fault,
(n.) = Something for which one is rightly open to blame; a mistake; a blemish; a moral
failing.
“Magna negligentia culpa est, magna culpa dolus est” (L.M.) = Gross negligence is a fault,
gross fault isa irauci.
INTRODUCTION:
There are two important legal maxims relating to imposing the liability upon the
wrong-doer, viz., “Injuria sine damnum” (violation of a legai right without causing any harm orioss or
damage to the plaintiff); and (ii) ‘Damnum sine injuria” (causing damage to the plaintiff vdthout
violation of his legal right). We have studied the concepts of these legal maxims in above topics.
In every wrongful act, there are two essentials - acft/s reus and mensrea. The phrase “actus reus”
means a “person’s act”, and the phrase “mens rea” means “ill intention”.
In the criminal law, both these two elements must be proved in the accused by the prosecution. The
burden of proof lies upon the prosecution. After satisfying both the elements were present in the
accused’s act, then only the Court considers it as a criminal act or wrongful act or fault.
In the Law of Torts, “mensrea” has no place. It is sufficient for the plaintiff to prove that by the act or
fault of the defendant, his (plaintiff’s) legal right has been injured. If the defendant does any act
causing harm or damage to the plaintiff without violating his (plaintiff’s legal right), the defendant is not
held liable, and defendant’s act cannot be considered as a “fault” within the meaning of the Law of
Torts. This is explained by the legal maxim “Damnum sine injuria”, and the case-laws under It.
[Refer to Case-Laws: Gloucester Grammar School Case, Moghul Steamship Co. vs. Me. Gregor
GowandCo.; Chesmore vs. Richards; Acton vs. Blundell; Town Area Committee vs. Prabhu
Dayal; Bradford Corporation (Mayor of) vs. Pickles; Electrochrome Ltd. vs. Welsh Plastics
Ltd., etc.]
In the Law of Torts, if the defendant violates the plaintiff’s right even without causing any damage to the
plaintiff, the defendant is considered that he did “fault”, and he is ordered to pay damages to the
plaintiff. This is explained by the legal maxim “Injuria sine damnum”. [Refer to case-laws; Ashby
vs. White; Bhim Singh vs. State of J.K.; Rylands vs. Fletcher; Oleum Gas Leak Case; etc.]
In Rylands vs. Fletcher case, the occupier was held liable, even though he entrusted the constructional
work to a contractor, and both the occupier and contractor had no ill intention or negligence for their act
of constructing the reservoir, they were held liable under the rule “Strict Liability” for they kept huge
water which likely to do damage if it would escape. In that case, the Court said that it is the liability of
every person to take all precautionary steps to prevent the damage to his neighbours. Even though
there was no “fault” in the occupier and contractor, the occupier was held liable in that case.
In M.C. Mehta vs. Union of India (AIR 1987 SC 1087) (Oleum Gas Leak CaseL the Supreme Court
widened the rule of Strict Liability laid down in Rylands vs. Fletcher, and formulated a new rule and
concept of “Absolute Liability Rule”. The Supreme Court held that even though there is no fault of
the occupier, he is held liable, if the hazardous or noxious gases or affluents are released from his
premises and cause harm to the neighbours. Even though there is no fault or negligence in the
occupier, he is strictly and absolutely held responsible, if he is failed to prevent such hazardous or
noxious gases or effluents from his premises.
Vicarious Liability: In the Law of Torts, if a servant does “wrongful act” or “fault”, and causes any
damage to the plaintiff, the master is held liable, even though there is no fault from the side of the
master under the principle of “Vicarious Liability”, which is also known as “Respondeat Superior”.
The master Is held liable for his servant’s wrongful acts caused damage to the plaintiff, even though
the master does no fault and does not want to do that fault, and does not have “mens rea”.
Unit -1: Nature of Law of Torts
19
First the Courts of Equity formulated this principle imposing the liability upon the master. Later on the
Legislatures have enacted several statutes, such as the Factories Act, Workmen’s Compensation
Act, Motor Vehicles Act, Insurance Act, etc. Strict provisions have been incorporated in these statutes
imposing the liability upon the master, if any fault is done by his servants causing injury to the plaintiff/
people, and thus the master is compelled to pay huge compensation to the aggrieved party.
We find a strange situation in the Law of Torts. At one hand, the defendant is not held liable, even
though he does any harmful act causing damage to the plaintiff without violating his (plaintiff’s) legal
right under the legal maxim of "Damnum sine injuria’’. At the other hand, the defendant is held liable,
even though he doesn’t do any fault, and has no ill intention or negligence under the legal maxim
"Injuria sine damnum’’, and Rules of Strict and Absolute Liability.
Linder “Damnum sine injura”, the defendant’s fault or act is not actionable, even though he does
harm to the plaintiff. It is an extreme situation. Linder "injuria sine damnum”, the defendant is held
liable even though he does no fault, no negligence, no mens rea. It is also an extreme situation.
Holmes, L. J., explained it: “As the law on the one hand allows certain harms to be inflicted irrespective
of the moral condition of him who inflicts them, so at the other extreme, it may on the grounds of policy
throw the absolute risk of certain transactions on the person engaging in them, irrespective of
blameworthiness in any sense. Most liabilities in tort lie between these two extremes, and are founded
on the infliction of harm which the defendant had a reasonable opportunity to avoid at the time of acts
or omissions which were its proximate cause.”
According to Salmond, “fault” is the basis of all tortuous liability.
This is criticized by other
jurisprudents. The critics say that there can be no co-relation between the “fault” and “damage”. In
certain occasions, “slight fault” may lead to heavy damage and the defendant is held liable for huge
compensation.
For example. If A, a bus owner, does not insure the bus in time, and allows it on the
road, and if the bus driver causes accident and several bystanders and passengers die in that accident,
A has to pay huge compensation to every victim and dependants of victims, besides facing the criminal
prosecution. Actually the same thing happened in Bhopal Gas Leak and Oleum Gas Leak Cases.
In certain occasions, B, a factory owner, releases the effluents and dangerous gases from his faotory
to the surroundings. If there are no incidents of deaths, and no information is published, he easiiy
escapes from the liability. Releasing effluents in the atmosphere/environment is a legally recognised
fault. In fact, it is going on in the surroundings of all the cities and metro cities, rivers, etc. The critics
point out that the strict provisions of the law and banking rules provide that every owner of the vehicle
should insure it from time to time. If a driver of an insured vehicle hits and injures a person, then the
owner of the vehicle is not held liable. The compensation is paid by the insurance company. If a
driver of an uninsured vehicle hits and injures a person, then the owner of the vehicle is prosecuted,
and is also held liable to pay compensation. In both the occasions, “fault” is same, but the owner of
the vehicle is not liable under the first occasion. Thus the modern laws have reduced the concept of
“fault” and “compensation” in the law of torts.
Answering to the above criticism some jurisprudents say that the 20*^ century or 21 century is not the
stage and we have not reached the stage when the element of “fault” is not taken into consideration.
Still there is a vast area, imposing the liability upon the defendants who do faults and consider their
intention, negligence, motives, malice, etc.
[Also refer to Topic “Liability without Fault”.]
NOTE
While revising Suiatha Law Series Notes, I am also compiling the Bare Acts
for the Criminal JVlajor Acts keeping in view of the students requirements or
the Internal, Problems and Notes. Within a short period,
I would like to the
Criminal Major Acts for Advocates, incorporating the Ingredients, latest
and leading case-laws, etc. which can be useful in
the Courts.
GADE VEERA JREDDY
V
V.-
20
The Law of Torts
1.J.
MOTIVE
Q.1.
Under what circumstances motive is irrelevant?
Q.2.
Piace of Motive in Torts.
Q.3.
Section 8 of the Indian Evidence Act, 1872.
(SN)
Q.4.
Rajendra Kumar v. State of Punjab” (AIR 1966 SC 1322).
(SN)
Q.5.
# Kirk vs. Gregory (1876) 1 Ex. D. 56).
(SN)
Q.6.
Allen vs. Flood (1898 AC 1).
(SN)
Q.7.
DIFFERENCE BETWEEN INTENTION AND MOTIVE.
Expiain.
(May, 2012, B.U.)
(SN) (Feb., 2006, S.V.U.) (Anl., 2012, Amb.U.)
(SN) (Anl., 2010, Amb.U.)
ANSWER:
MOTIVE
(EQ/SN)
MEANING:
Motive, (n.) = causing movement; that which is actuated; an actuating purpose; that which incites
to action.
Examples: A steals some money from the house of B. He might have stolen the money to feed his
starving children, or to fulfill his luxuries, or to repay the debts incurred by him. To feed his starving
children, or to fulfill his luxuries, or to repay the debts, etc., are the motives. “To steal” is As intention,
whereas the reasons behind stealing are his motives.
The role of “Motive” in a Tort:
To impose the criminal liability, the prosecution must prove the
wrong-doer’s mens rea and his act or omission. Motives are not relevant in a criminal case. However,
the prosecution may prove the motives of the wrong-doer, along with other circumstantial evidences.
Then it becomes sufficient evidence. Section 8 of the Indian Evidence Act 1872 lays down: “Any
fact is relevant which shows or constitutes a motive or preparation for any act in issue or relevant
facts."
The Supreme Court, while delivering the judgment in “State of Haryana vs. Sher Singh” (A\R^98^
SC 1021) observed: The prosecution is not bound to prove motive of any offence in any chminal
case. If the prosecution proves motive, Court has to consider it and see whether it is adequate. ”
In “Rajendra Kumar v. State of Punjab” (AIR 1966 SC 1322), the Supreme Court held: “Where the
prosecution fails completely to prove motive and evidence regarding commission of offence is not
clear and definite, the accused cannot be convicted. But even in case of circumstantial evidence, if
after giving due consideration to the want ofproof of motive the Court is satisfied that the circumstances
proved give one conclusion only that the accused is guilty, he maybe convicted.”
However, “Motives are irrelevant in the law of torts”.
No use of property which is lawful if due to
proper motive would become unlawful merely because it is prompted by a motive which is improper or
even malicious.
According to the legal theor^f, the motives are irrelevant to prove the criminal and tortuous liabilities. If
A has a motive to help the poor, and to fulfill his motive, he plunders the rich. For a good motive, he
adopts an illegal way. The law does not excuse him. A shall be punished. If A has ill-motives, and
performs his acts legally, then the law does not punish him.
This is seen in “Bradford Corporation vs. Pickels” case. This class of cases is found in “Damnum
sine injuria". In these cases, the wrong-doer causes damage to the plaintiff with evil motives. If he
does the act or commits omission within the legal sphere, the law does not punish him. In Gloucester
Grammar School case, the defendant caused loss to the plaintiff by reducing the rate of school fees.
Here the defendant had an evil motive to see that the plaintiff should suffer loss. At the same time,
fixing school fees according to one’s own desire is not illegal. In Chesmore vs. Richards case, the
defendant dug a well on his own land and pumped large quantity of water. Due to insufficiency of
water, the plaintiff was put in great loss. The defendant was not held liable.
# Kirk vs. Gregory (1876) 1 Ex. D. 56)
(Motive)
Brief Facts: A died. As sister-in-law, the defendant in this case, had removed some Jewellery from
the room where the dead body was kept, and placed them.in another room, with a good intention to
keep them in safe custody. However, the jewellery were stolen. As heirs sued the defendant for
trespass to goods.
The Court held that the motive of the defendant was good, but there
was no
necessity for the defendant to remove the jewellery from the room to another room, and it was a
trespass to the goods. She was held liable.
Unit -1: Nature of Law of Torts
21
While delivering the judgment in Bradford Corporation, Lord Ashbourne the Court observed: “The
plaintiffs have no cause unless they can show that they are entitled to the flow of the water in question,
and that the defendant has no right to do what he is doing.... The law stated by this House in Chesmore
V. Richards cannot be questioned. Mr. Pickles has acted within his legal rights throughout; and is he
to forfeit those rights and be punished for their legal exercise because certain motives are imputed to
him? If his motives were the most generous and philanthropic in the world, they would not avail him
when his actions were illegal. If his motives are selfish and mercenary, that is no reason why his rights
should be confiscated when his actions are legal. ”
Lord Herschell opined: “Where a person did a good thing and legally inspired by evil motives, the
law recognises his legal acts, but not his evil motives. It is a fundamental principle. Similarly, where
a person did a wrongful act or omission inspired by good motives, the law does not recognise his good
motives, but punishes him for his wrongful act or omission.”
Lord Macnaughten observed: “Where a person fearlessly violates the law, and does injury or harm
to another person intentionally, the Court has to consider his illegal acts and mens rea, but not the
motives which are too remote to the wrongful act. What is the necessary with motives, which are too
remote and most indirect. Such enquiries shall not be considered. ”
In Allen vs. Flood (1898 AC 1), Lord Watson said: “Although the rule may be otherwise with regard
to crimes, the law of England does not take into account motive as constituting an element of civil
wrong. Any invasion of the civil rights of another person is in itself a legal wrong, carrying with it liability
to repair its necessary or natural consequences, in so fares these are injurious to the person whose
right is infringed, whether the motive which prompted it be good, bad, or indifferent.”
Therefore, in law of torts the motives/wrongful intentions are irrelevant. [Also refer to Topic “Damnum
sine injuria’Hor material and case-laws and write their ingredients here also.]
Relevant motives in Law of Torts: It is a general principle that generally motive is irrelevant in torts.
No use of property which is lawful If due to proper motive would become unlawful merely because it is
prompted by a motive which is improper'or even malicious.
However motives are relevant in certain classes of torts, viz., malicious prosecution, and malicious
abuse of process, malicious falsehood, defamation, nuisance and conspiracy.
DIFFERENCE BETWEEN INTENTION AND MOTIVE
INTENTION
1.
Intention is divisible into immediate and ulterior
(SN)
MOTIVE
1.
The ulterior object is called motive.
2.
"To purchase wine" is the "ulterior object".
This ulterior object is called "Motive".
intent.
2.
Example: A robber robs a person to purchase
liquor for himself. "Robbing" is the "immediate
act" and this immediate act is called
ii:
intention.
3.
Intention in criminal law is always bad and evil.
3.
Motives may be good or bad.
4.
Intention is relevant in determining the question
of criminal liability.
4.
It is a general rule that man's motive is irrelevant
in determining the criminal liability.
5.
The act is the result of intention. Intention is the
5.
The criminal law does not concern with good
motives. End cannot justify the means and
therefore the motive cannot justify the intention.
6.
Case-law: Emperor vs. Raghunatha Rai 1892:
Some Hindus forcibly removed two cows from a
Mohammedan to save them from slaughter, in
view of their religious beliefs and worship for
cows. Their object and motive were good
according to their religion.
7.
... The point of asking for his motive is to find out
immediate act. Therefore, the criminal law
concerns with the intention.
6.
The Court did not consider their motive to
protect the cows from slaughter. It considered
that the Hindus were guilty of offence, as their
"immediate act" i.e. removal of cows from the
possession of the owner was bad in law
according to Sec. 146 IPC.
7.
Salmond said: "The point of asking what a man
intends to do is to discover what he is trying to
what personai advantage he is seeking to gain;
achieve
and a motive-iess act is one aimed at no such
personal advantage."
8.
Salmond said: "The law will judge a man by
8.
Not by the reasons for which he does it."
9.
In exceptional cases, in civil liability, some times
motive is relevant, e.g. defamation; malicious
prosecution; cheque dishonour, etc.
what he does...
9.
Intention is relevant in criminal and civil liability.
22
The Law of Torts
1.K.
MALICE / WRONGFUL INTENTION
Q.l.
What is Malice in Fact and Malice in Law?
Is intention a relevantelement?
Q.2.
Explain fully the elements of “malice” and “intention”
in the Law of Torts.
(AnI., 2010, O.U.) (AnI., 2012, A.U.)
(AnI., 2011, G.U.) (AnI., 2012, B.U.)
Q.3.
Wrongful intent.
.Q.4.
Malice.
Q.5.
Wrongful Intention.
(SN)
Q.6.
Malitia.
(SN)
Q.7.
Kinds of Malice.
(SN)
Q.8.
MALICE IN LAW.
(SN)
Q.9.
Implied Malice.
(SN)
(SN) (Dec., 2007, O.U.) (AnI., 2011, K.U.)
(SN) (May, 2006, B.U.) (Nov., 2000, S.K.U.) (AnI., 2013,Amb.U.)
Q.10. Evil Motives, Express Malice, Actual Malice, Improper Motives.
(SN)
Q.11. Malice in Law.
(SN)
Q.l2. DISTINCTION BETWEEN MALICE-IN-FACT & MALICE-IN-LAW.
(SN)
ANSWER:
MALICE / WRONGFUL INTENTION
(EQ/SN)
MEANING:
wrongful,
(adj.)
= not fair, morally right or legal.
wrongful intention, (n.) = spite, evil intention, malevolence, unfair intention, immoral intention, illegal
intention: illegal or immoral motives.
The term “Malice” is derived from Latin term “Malitia”.
It means “spite, evii intention, maievoience,
etc.
In Law, it also means “wrongful intention”, “reckiessness”, “wickedness in morai or
physicai”.
There is a clear difference between malice and intention, and malice and motive. Malice is used in
between them according to circumstance in which particular wrong was committed.
In every malice, there must be some design and vengeance in the acts of the wrong-doer. If A burns
B’s house intentionally, it shows his malice. In As act, malice, design and vengeance against B are
present.
Kinds of Malice:
In Law, malice can be divided into two kinds. They are:—
1.
Malice in Law: and
2.
Malice in Fact or Evil Motive.
1.
MALICE IN LAW
(SN)
Malice in law is an “intentional doing of a wrongfui act”. It is synonymous with “intention”.
Justice Bayiey described “Maiice in iaw”.in the following words: “Malice in common acceptation
means iii-will against a person, but in its legal sense it means a wrongfui act, done intentionally, without
just cause or excuse, if i give a stranger a perfect blow likely to produce death, I do it out of maiice,
because I do it intentionally and withoutJust cause or excuse. If I maim cattle without knowing whose
they are, ifpoison a ifshery, without knowing the owne,r I do it out of malice, because it is a wrongful act,
and done intentionally.”
Viscount Haldane said; “A person who inflicts an injury upon another person in contravention of the
taw 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 maiice in law, although, so far the state of his mind is
concerned, he acts ignorantly and In that sense innocently.
”
In malice, the defendant knowingly encroaches the plaintiff’s rights. The defendant knows the
consequences of his wrongful acts towards the plaintiff. He intends to.cause such consequences of
harm or injury to the plaintiff. For this purpose he designs to do the wrongfui act. Therefore, his acts
are without reasonable and probable cause. Therefore, malice in law can also be called as “Implied
Maiice”.
2.
ti
MALICE IN FACT
(SN)
Malice in Fact” is also called as “Evil Motives”, “Express Maiice”, “Actuai Maiice”, “improper
Motives”, etc.
All these names are used in its narrow and popuiar sense. Malice-in-fact is an act
done with ill will towards an individual. It depends upon motive. Motive is the ulterior reason for the act
of the doer. If a person does lawful acts with bad motives, the law does not punish him. If a person
does unlawful or wrongful acts with good motives, the iaw does not excuse him, and it punishes him.
*1
K
Unit -1: Nature of Law of Torts
23
To help the poor is a good motive. But to help the poor, to plunder the rich is unlawful. To feed his
starved children, if A steals money purse of B, the Court cannot consider his motive to feed his starved
children, but it punishes for A’s wrongful act of stealing. In general, motive is irrelevant in tortuous
liability. “Damnum sine injuria” is a good legal maxim giving certain examples of case-law explaining
the motives (malice in fact).
DISTINCTION BETWEEN MALICE-IN-FACT & MALICE-IN-LAW
MALICE-IN-FACT
1.
MALICE-INtLAW
Malice-in-fact is an act done with ill will towards
1.
Malice-in-law means an act done wrongfully and
without reasonable and probable cause.
Malice-in-law depends upon knowledge.
an individual.
2.
Ma|ice-in-fact depends upon motive.
2.
3.
Malice-in-fact means ill-will or any vindictive
motive against a person.
3.
Malice-in-law means the concurrence of mind
with a wrongful act done without just cause or
excuse.
4.
It is also known as "Actual malice" or
4.
"Express malice."
Conclusion:
Malice-in-law is also known as "Implied
Malice."
Malice is irrelevant in the law of torts.
Exceptions: The general rule is that malice-in-fact is irrelevant in law of torts.
exceptions to this rule. They are:
1.
Defamation on a privileged occasion;
2.
Malicious prosecution;
3.
Willful and malicious damage to property;
4.
Injurious falsehood about goods, slander, of title etc.;
5.
Malicious conspiracy; and
6.
Maintenance.
There are certain
William Shakespeare writes: “Neither lend nor borrow." This is quite appiicabie to the iaw students and lawyers.
Law books and legal knowledge are the source of reputation and money for an advocate. Therefore, the law student
should not borrow or should not lend their books. All the books purchased by a law student and lawyer will be useful
one day. Particularly the subjects of LL.B. are inter-linked. Refer to the previous subjects often, and memorize the
contents therein.
1.L.
NEGLIGENCE
[“Negligence” is one of the General Principles of Tortuous Liability.
It is explained in Topic 4.B.
Refer to Topics “Definition and Essentials of Negligence” and other Topics of Negligence.]
1.M.
LIABILITY WITHOUT FAULT /
ACCIDENTS BY MOTOR VEHICLES, ETC.
[Note:
Refer to Topic “Liability without Fault/Accidents by Motor Vehicles, Etc.
Liability
arising out of Accidents” and “Assessment/Measurement of Damages” Topics are inter-linked.
The student should memorize all these topics, and should answer appropriately, in view of the questions
asked in the Examinations.]
it
NOTE
I have been revising the mm{]i(g [Ugsy 93(^1 ES according to the new Syllabus and new
pattern examination, with latest Acts, Sections, Case-Laws, etc. However, these books are also
useful to the old syllabus and old examination pattern.
GADEVEERA REDDY
24
The Law of Torts
1.N.
STATUTORY LIABILITY
Q.1.
Statutory Liability.
Q.2.
“Salus populi est suprema lex."
(SN) (Feb., 2006, S.V.U.)
(Regard for the public welfare is the highest law.)
(SN)
Q.3. Vaughan vs. Taff Valde Rail Co. (1860) 5 H&N 679).
(SN)
Q.4. Assault done by a Government officer during his legal exercising powers.
(SN)
Q.5.
(SN)
Hammer Smith Rail Co. vs. Brand (1869, L.R.H. 171).
Q.6. Smith vs. London & South Western Railway Co. (1870, LR 6 CP).
(SN)
Q.7. # Metropolitan Asylum District vs. Hills (1881) 6 A.C. 193).
(SN)
ANSWER:
STATUTORY LIABILITY
(EQ/SN)
MEANING: Parliament makes certain statutes. “Salus populi est suprema lex. ” (Regard for the
public welfare is the highest law.) The object of the statutes is to give the safety and welfar;e to the
majority of the people. The Government wants to construct big water projects like Nagarjur;a Sagar
Project, for which it requires huge lands. If the said project Is constructed, several lakhs o/acres of
waste land shall become cultivable lands and shall be benefitted to lakhs of people. Therefore, to
construct such project, a few villages should be acquisitibned by the Government, and those people
shall have to vacate the villages and agricultural lands. The land losers cannot complain against this
statutory authority, except to obtain the appropriate compensation, fixed by the Authorities and Courts.
Likewise, an Act of Parliament promotes some specific undertaking of public utility, such as canal,
railway, dams, electricity stations, etc. By such statutory authority some individuals suffer inconvenience
and torts. Those individuals cannot complain against the statutory authority, except to compensation,
provided according to the provisions of the statutes.
■
IMPORTANT POINTS:
A. Statutory Authority is a complete defence and justifiable ground against the tortious liability.
B.
Vaughan vs. Taff Valde Rail Co. (1860) 5 H&N 679)
The defendant’s Railway Company was established as a result of a statute, and from the Government’s
permission. Adjoining the railway track, the plaintiff’s woods were stored. The Railway engine emission
sparks while it was going. As a result of the sparks, the plaintiff’s woods were completely burnt. The
plaintiff sued the defendant. The defendant pleaded that he was authorised by an Act of Parliament to
the emission of sparks. The House of Lords admitted the argument of the defendant and held It not
liable. Cockburn CJ observed: ‘‘When the legislature has sanctioned... the use of a particularthing,
and it is used forthe purpose forwhich it was authorised.... the sanction of the legislature carries with
it. By this consequence, if damage results from the use of such thing... the party using it is not
responsible.”
C. Assault done by a Government officer during his legai exercising powers: Section 41(1) of
the Criminal Procedure Code, 1973 empowers a police officer to arrest any person, who is suspected
to be indulged in any cognizable offence. It is the duty of the person to answer the questions, and to
prove his innocence on that circumstance. If the person tries to run away, and the police officer chases
him. He arrests that person. If the arrested person receives any injuries while in chasing and capturing,
the police officer is not held responsible.
D.
Hammersmith Rail Co. vs. Brand (1869, L.R.H. 171)
(Statutory Liability Authority)
Brief Facts: Defendant/the Railway Company were established by a statute. The plaintiffs were
residing near the railway track. They sued the defendant Railway company was causing nuisance to
them by releasing smoke, noise, vibrations, etc.
JUDGMENT: The Court gave the judgment that the Railway was not liable. It held that where a
statute authorises certain acts to be carried, the incidental torts are also presumed to be exempted.
E. The statutory authority could not save the officials, who behave negligently.
Examples:
(a) If a police officer arrests any person on any reason, he should produce the arrested person before
the Court within 24 hours. It is a statutory duty imposed upon every police officer. If he fails to do so.
the arrested person can sue such police officer, forwhich the statutory authority cannot be helpful.
Unit -1: Nature of Law of Torts
(b)
25
Smith vs. London & South Western Railway Co. (1870, LR 6 CP)
(Statutory Liability Authority)
BRIEF FACTS: The railway company accumulated the dry grass at a place near a railway line for
several days. They neglected to remove the heap from that place fora long time. The sparks from an
engine set the dry grass on fire. It spread and destroyed the plaintiffs house, which was situated 200
yards away from the railway line. The House of Lords held that it was happened due to the negligence
of the railway CO., and therefore, they were held responsible.
■
F.
# Metropolitan Asylum District vs. Hills (1881) 6 A.C. 193)
(Statutory Liability Authority)
BRIEF FACTS: The Appellants-Metropolitan Asylum District was a hospital established by statutory
authority. It was empowered to establish a small-pox hospital by a statute. It was established in a
residential area. The residents of that area feared that small-pox disease might spread ...nd affect
them. It created a danger and nuisance in the minds of the residents. They filed a suit requesting for an
injunction restraining the appellants from not doing their small-pox activities in their area and to remove
it from their area.
JUDGMENT: The House of Lords ordered the appellants to remove the small-pox hospital from that
locality.
PRINCIPLES: 1. Where the terms of a statute are not
imperative, but permissive, the fair inference is
that the legislature intended that the discretion, as to the use of general powers thereby conferred,
should be exercised in strict conformity with private rights.
2. The same principle is also applied in Environmental pollution cases. The Supreme Court and High
Courts gave several judgments to relocate the tannery, chemical, etc. industries to relocate from the
residential areas.
FOREIGN TORTS
1.0.
Q.1.
Foreign Torts.
Q.2.
Machado vs. Fontes (1897) 2 QB 231).
(SN)
Q.3.
Chaplin vs. Boys (1971 AC 356).
(SN)
(SN) (AnI., 2012, A.U.)
ANSWER:
FOREIGN TORTS
Lex loci,
(n.)
The Law of the Land.
Lex fori,
(n.)
The Law of the Forum or Court.
Foreign Tort.
(EQ/SN)
Where the defendant commits a tort outside the territorial
limits of that country,
i.e., in foreign country, it is called “Foreign Tort”. In fact, it is the jurisdictional
issue of the civil Courts and particularly of the Public International Law.
Example: A, an Indian, commits a tort in Nepal. Nepal is a foreign country for India. The Indian Court
has no competent authority to try such a tortuous case. Nepal is the competent to try such a case. If
B, a Nepali, publishes a defamatory matter against C, an Indian citizen, residing in Mumbai, C can sue
B in the Mumbai Court.
In Machado vs. Fontes (1897) 2 (3B 231) case, the plaintiff was a British, and the defendant was a
Brazilian. The defendant published a defamatory matter in his paper published from Brazil against the
plaintiff. The plaintiff sued the defendant claiming the damages under the law of torts in England
Court. The defendant contended that the defamation would be considered as a criminal wrong, but
not as a civil wrong or tort in Brazil, thus the plaintiff had no right to sue him for compensation as a civil
wrong. The Court gavejudgment in favour of the plaintiff.
Chaplin vs. Boys (1971 AC 356)
Brief Facts: Both the plaintiff and the defendant were the British nationals, and were posted in Malta.
Due to the negligent act of the defendant committed in Malta, the plaintiff received injuries, and was
admitted in hospital for treatment. The plaintiff sued the defendant in England for the damages,
including for the damages for pain, suffering and loss of amenities. According to Maltan Law, no
damages shall be paid for pain, suffering and loss of amenities. But these are payable under the
English Law. The defendant contended that he was bound to pay as per the Maltan Law, as the
tortuous act occurred in Malta, and also contended that the Maltan Law only would be applicable, but
the English Law would not apply.
26
The Law of Torts
JUDGMENT: The House of Lords rejected the contention of the defendants and granted the damages,
including forthe damages for pain, suffering and loss of amenities.
1.P. MISCELLANEOUS TORTS AND DOUBTFUL TORTS - FRANCHISE
Q.1.
Doubtful Tort.
Q.2.
Miscellaneous Torts and Doubtful Torts. .
Q.3.
Franchise.
Q.4.
Ashby vs. White.
(SN)
Q.5.
Nominal Damages.
(SN)
Q.6.
Toll Gates.
(SN)
Q.7.
Parking Charges.
(SN)
Q.8.
Bridgland vs. Shapter (1839) 5 M&W 375).
(SN)
Q.9.
Abuse of quasi-judicial powers.
(SN)
(SN) (June, 2003, M.U.) (Ani., 2013, K.U.)
(SN) (AnI., 2011, B.U.) (Ani., 2011, A.U.)
(SN) (Ani., 2010, K.U.)
Q.10. X Ltd. vs. Mbrgan-Grampian (Publishers) Ltd. (1991 AC 1).
(SN)
Q.11. Grand Residual Category of the Civil Wrongs.
(SN)
ANSWER:
MISCELLANEOUS TORTS AND DOUBTFUL TORTS - FRANCHISE
(EQ/SN)
As the name itself indicates, certain torts are termed as Miscellaneous Torts and Doubtful Torts”.
The scope of tortuous liability has been increasing. Doubts have been expressed whether some of
these newly recognised wrongs are really torts in the
strict sense of the term.
Therefore these
miscellaneous torts are also called as “Doubtful Torts”.
Generally these are arisen from the Royal Grant/State Permission. Hence these are also termed as
Franchise”. The term “Franchise” means “a formal permission given by a company to any person
who wants to sell his goods or services in a particular area; a formal permission given by a Government
to a person who wants to operate a public service as a business; the right to vote in a country’s
66
election”.
DEFINITION:
Blackstone’s Commentaries:
“A franchise is a Royal privilege or branch of the
King’s prerogative subsisting in the hands of a subject. It is ... a franchise for a number of persons to
be incorporated and subsist as a body politic. Other franchise are ... so have waifs, wrecks, estrays,
treasure, trove, royal fish, forfeiture ... to have a fair, ormarketwith the right of taking toll... or lastly to
have a forest, chase, park, warren or fishery endowed with the privileges of royalty.”
EXAMPLES:—
(a)
In Ash byvs. White, we have seen that a voter was obstructed illegally by an election officer. The
plaintiff had not faced any economical loss. Only his right to vote given by the Royal/State was
violated. The Court granted five pounds to the plaintiff as nominal damages. This type of torts
is termed as “Miscellaneous Torts and Doubtful Torts”,
(b) Toll Gates: A takes toll gate contract on a high way from the Government by participating in open
auction or tender. Here A is the franchisee of the Government. B, an unauthorised person,
collects the toll gate fees by muscle power. It is a tort against A.
(c) Parking Charges: A is legally authorised to collect parking charges at a municipal complex.
Here A is the franchisee of the Municipality. B, an unauthorised person, collects the parking
charges by muscle power. It is a tort against A.
(d) Bridgland vs. Shapter (1839) 5 M&W 375): In a town, the market place was auctioned by the
Government. The plaintiff was the successful bidder. Every merchant had to pay certain fees to
have a temporary place to sell his goods. The defendant had established a small tin shed to a
place forty yards outside the limits of the market, and then going within the market in quest of
customers, bring them to his spot and there bargaining with them. The defendant was held
liable,
(e) Abuse of guasi-judicial powers:
In the modern law, several quasi-judicial bodies came into
existence. Example: Bar Council, VAT Tribunal, Medical Council, Pharmacy Council, etc. These
bodies are empowered with certain quasi-judicial powers. Sometimes, such a Body may exceed
its quasi-judicial powers and cause damage to any person. The aggrieved person can have legal
remedy under the above head,
(f) X Ltd. vs. Morgan-Grampian (Publishers) Ltd. (1991 AC 1): In this case, the Court held that
Breach of Contract Is a triable tort, because the subject of tort tends to be treated as the grand
residual category of civil wrongs.
It
27
Unit -1: Nature of Law of Torts
UNIT-I
NATURE OF LAW OF TORTS
n
r
SHORT/MINI QUESTIONS AND FILL UP THE BLANKS ARE USEFUL FOR THE INTERNAL
EXAMINATIONS OF LL.B., B.A. LL.B., B.B.A. LL.B., B.Com. LL.B., B.Sc. LL.B.
THESE ARE ALSO VERY MUCH USEFUL FOR THE BAR COUNCIL
ELIGIBILITY TEST, PUBLIC PROSECUTORS’ TEST, JUDICIAL
EXAMINATIONS.
ENROLMENT
EXAMINATIONS, AND OTHER COMPETITIVE EXAMINATIONS.
SHORT/MINI QUESTIONS AND FILL UP THE BLANKS WILL ALSO HELPFUL TO THE
STUDENTS FOR REFRESHING ENTIRE SUBJECT IN THE EXAMINATION HALL AND
TO GET HIGHEST MARKS.
BEFORE THE EXAMINATION DATE, YOU MUST REFRESH YOUR MEMORY BY READING
AND REFRESHING THE SHORT/MINI QUESTIONS AND FILL UP THE BLANKS OF EACH
SUBJECT. ENTIRE SUBJECT SHOULD BE IN YOUR MEMORY AND GRIP.
J
L
1.A.
NATURE OF LAW OF TORTS - MEANING, CONCEPT
AND DEFINITION OF “TORT
1.
What is the meaning of the term ‘Tort’?
2.
When was the term ‘tort’ reported for the first time?
3.
Narrate the Winfield’s Definition of Tort.
4.
What is meant by ‘tort-feasor’? What is meant by ‘tortuous
5.
What is meant by ‘Liquidated Damages’?
6.
What is meant by “Uniiquidated Damages”?
7.
What is meant by the “Doctrine of Restitution”?
8.
Narrate the Saimond’s Definition of Tort.
9.
Write the Clark and Lindsel’s Definition of Tort.
act’?
10-
1.B.
ESSENTIAL ELEMENTS/CONDITIONS OF TORT
10.
What are the essential elements of Tort? What are the essential conditions of Tort?
11.
Clock Tower, maintained by the Municipality fell down, and caused
persons. Is the Municipality responsible to pay the compensation?
the death of a number of
12
1.G.
DEVELOPMENT OF LAW OF TORTS IN ENGLAND AND INDIA
12.
When and where was the Law of Torts originated and developed?
13.
What is the meaning of “Ubijus ibi remedium”?
14.
What is meant by “Injuria sine damnum”?
15.
What is meant by “Damnum sine injuria”?
16.
What is meant by “Caveat Emptor”?
17.
What is meant by “Caveat Venditor”?
18.
What is the historical importance of the Great Britain?
19.
When was the Consumer Protection Act enacted in India?
20.
In a Five Star Hotel in India, the water level is not maintained properly. As a result one tourist
died. Is the Five Star Hotel responsible to pay compensation?
■21 —
28
The Law of Torts
1.D.
WRONGFUL ACT AND LEGAL DAMAGE /
[Injuria sine damno & Damnum sine injuria]
21.
What is meant by ‘Wrongful act”?
22.
What is the meaning of ‘Legal Damage’?
23.
What is meant by “Injuria sine damno”?
24.
Write few examples for “injuria sine damno”.
25.
A qualified voter, at a Parliamentary election, was wrongfully refused by the defendant- returning
officer. The voter did not suffer any personal loss and the candidate to whom the plaintiff wanted
to vote, had won in the election. Does the plaintiff succeed against the returning officer?
26.
An M.L.A. was wrongfully detained by the police, while he was going to attend the Assembly
Session. Is he entitled any compensation against the police?
A, a banker, refuses to honour the customer’s cheque though customer having sufficient money
in his account. Whether does an action lay against Banker? Decide.
What is the meaning of “Damnum sine injuria”?
27.
28.
29.
A is maintaining a school, and is charging Rs. 1000/- per month per student from the last ten
years. B has established a new school besides As school, and has been charging Rs. 100/per student per month. It badly affected on As school and the number of the students has been
30.
31.
decreasing and is put into loss. Can A sue B for damages?
The plaintiffs and the defendants were the transporting companies. The defendants reduced
the freight charges with an intention of causing damage to the plaintiffs. Decide.
The plaintiff was the mill-owner. He was using water for his mill from a stream which was fed
by rainfall. The defendants sunk a well on their land and pumped large quantity of water. The
32.
flow of water to the plaintiff was reduced. The plaintiff sued the defendants. Decide.
The defendants dug the coal pit of their own. This affected the plaintiff’s well, at a distance of
about 1 mile. The plaintiff sued the defendant. Decide.
33.
34.
The plaintiff constructed a building without obtaining proper permission from the Town Area
Committee. The Town Area Committee-the defendants demolished the construction. The plaintiff
sued the defendants for damages. Decide.
The plaintiffs’ land was situated in down area, and the defendant’s land was situated in upper
area at a higher level. The water was flowing from higher level to lower level, which the plaintiffs
had been using it. There were talks between the plaintiffs and the defendant for the sale of
defendant’s land. The talks were not fruitful, as the plaintiffs did not agree to pay the price
offered by defendant, thinking that it was an extraordinary rate than the market price. Keeping
in view of it, the defendant intended to cause loss to the plaintiffs. Thus he sank a shaft over his
own land. As a result of shaft, the flowing of the water to the plaintiff’s land was decreased and
discoloured. Due to insufficiency of water, the plaintiffs were put in heavy loss. They sued the
defendant praying the Court to issue an injunction to restrain the defendant from sinking the
shaft. Decide.
35.
The factories of the plaintiff and the defendant were located in an industrial estate. There was
afire hydrant nearthe defendant’s factory. The worker of the defendant drove the lorry negligently
and caused damage to the fire hydrant. As a result of this, supply of water through the main
was cut off. Due to this, the water was not supplied to the plaintiff’s factory, and his work was
stopped for one day. The next day the water works department came and repaired the main
water pipe. The plaintiff sued the defendant to recover their loss for one day. Decide.
36-
1
Gade Veera Reddy
LL.B. ENTRANCE TEST
(Answers to Previous LAWCET including 2014 Q.P.)
(Also useful for U.P.S.C., A.P.P.S.C., Civil Prelims, etc.)
^No. of Pages : 480
Cost: Rs. 300/-
29
Unit -1: Nature of Law of Torts
GENERAL PRINCIPLES OF TORTUOUS LIABILITY /
1.H.
THEORIES OF LIABILITY OF TORTS
36.
Si
Is it the law of tort?
37.
C(
Is it the law of torts?
38.
Who supported the first view “It is the Law of Tort”?
39.
The second view “Is it the law of torts?” is aiso caiied
40.
Who supported ‘The Pigeon Hole Theory’?
41.
What is meant by ‘The Pigeon Hole Theory’?
91
99
42-
FAULT
1.1.
42.
Write the meaning of ‘fault’?
43.
Give the meaning of the legai maxim; “Magna negligentia culpa est, magna culpa dolus
est”.
44.
What is the position of “mens rea” in the Law of Torts?
45.
What is meant by ‘Strict Liability’? In which case the Rule of Strict Liability is propounded?
46.
What is meant by ‘Absolute Liability’?
propounded?
47.
What is meant by “Liability without Fault”?
48.
What is meant by ‘Vicarious Liability’ and ‘Respondeat Superior’?
In which case the Rule of Absolute Liability is
49-
motive
I.J.
49.
What is the meaning of ‘motive’?
50.
Give examples to show the motives.
51.
Define ‘motive’.
52.
Si
53.
Adied. A’s sister-in-law, the defendant in this case, had removed some jewellery from the room
Motives are irrelevant in the law of
99
where the dead body was kept, and placed them in another room, with a good intention to keep
them in safe custody. However, the jewellery were stolen. A’s heirs sued the defendant for
trespass to goods. Decide.
•54
I.K.
MALICE / WRONGFUL INTENTION
54.
What is meant by ‘Malice’ and ‘Wrongful Intention’?
55.
What are the differences between malice and intention, and malice and motive?
56.
What are the kinds of malice?
57.
What is meant by ‘Malice in Law’?
58.
What is meant by “Malice in Fact”?
.
-59
1.N.
STATUTORY LIABILITY
59.
Write the meaning of “Salus populi estsuprema lex.
60.
Is Statutory Authority a complete defence?
61.
The defendant’s Railway Company was established as a result of a statute, and from the
Government’s permission. Adjoining the railway track, the plaintiff’s woods were stored. The
Railway engine emission sparks while it was going. As a result of the sparks, the plaintiff’s
woods were completely burnt. The plaintiff sued the defendant. Decide.
30
The Law of Torts
62.
A police officer suspects a person to be indulged in a cognizable offence, and tries to arrest
him. The suspect runs away and the police officer chases and uses man power to arrest him.
The suspect sues the police officer alleging that he is an innocent and is not connected with
any cognizable offence. Is the police officer liable to pay damages to him?
63.
Defendant/the Railway Company were established by a statute. The plaintiffs were residing
near the railway track. They sued the defendant Railway company was causing nuisance to
them by releasing smoke, noise, vibrations, etc. Decide.
64.
When does the defence of statutory authority not defend the government officials?
65.
The Appellants-Metropolitan Asylum District was a hospital established by statutory authority. It
was empowered to establish a small-pox hospital by a statute. It was established in a residential
area. The residents of that area feared that small-pox disease might spread and affect them. It
created a danger and nuisance in the minds of the residents. They filed a suit requesting for an
injunction restraining the appellants from not doing their small-pox activities in their area and to
remove it from their area. Decide.
66-
1.0.
FOREIGN TORTS
66.
What is meant by the “Foreign Tort”?
67.
Give an example for the “Foreign Tort”.
68.
The plaintiff was a British, and the defendant was a Brazilian. The defendant published a
defamatory matter in his paper published from Brazil against the plaintiff. The plaintiff sued the
defendant claiming the damages under the law of torts In England Court. Decide.
69.
Both the plaintiff and the defendant were the British nationals, and were posted in Malta. Due to
the negligent act of the defendant committed in Malta, the plaintiff received injuries, and was
admitted in hospital for treatment. The plaintiff sued the defendant in England for the damages,
including for the damages for pain, suffering and loss of amenities. According to Maltan Law,
no damages shall be paid for pain, suffering and loss of amenities. But these are payable
under the English Law. The defendant contended that he was bound to pay as per the Maltan
Law, as the tortuous act occurred in Malta, and also contended that the Maltan Law only would
be applicable, but the English Law would not apply.
Decide.
■70-
I.P. MISCELLANEOUS TORTS AND DOUBTFUL TORTS - FRANCHISE
70.
What is meant by the ‘Miscellaneous Torts and Doubtful
71.
What is meant by the ‘Franchise”?
72.
A takes toll gate contract on a high way from the Government by participating in open auction or
tender. Here A is the franchisee of the Government. B, an unauthorized person, collects the toll
gate fees by muscle tort.
73.
Define Blackstone’s Definition on “Franchise”.
74.
A is legally authorized to collect parking charges at a municipal complex. Here A is the franchisee
of the Municipality. B, an unauthorized person, collects the parking charges by muscle power.
What is the name of the tort done by B?
75.
In a town, the market place was auctioned by the Government. The plaintiff was the successful
bidder. Every merchant had to pay certain fees to have a temporary place to sell his goods.
The defendant had established a small tin shed to a place forty yards outside the limits of the
market, and then going within the market in quest of customers, bring them to his spot and
there bargaining with them. Decide.
Torts”?
Note : Sections and Illustrations are very important. PROBLEMS may be asked basing
on the Sections and Illustrations. I have given all important Sections including Illustrations.
The Student is advised to memorise Sections and Illustrations perfectly. If the student
answers correctly, he can get 10 marks out of 10 marks correctly, he can get 10 marks out
of 10 marks for problem solving. Further, the student is not for problem solving. Further,
the student is not required to purchase Bare Acts separately,
important Sections and Illustrations.
- GVR.
as this book contains all
31
Unit -1: Nature of Law of Torts
ANSWERS
NATURE OF LAW OF TORTS - MEANING, CONCEPT
1.A.
AND DEFINITION OF “TORT
1.
The English term “Tort” has been derived from the Latin term “Tortum” which means “to
twist”. It means which is not straight and correct. The same term has been used in French
as “wrong”, and in Roman Law as “Delict”.
This term means “to twist”, “crooked
conduct”, “a wrong”, etc. Now it is settled that tort is a civii wrong, and it differs from breach
of contract. Liability in tort arises from breach of a duty primarily fixed by law which is towards
others generally. The breach of this duty is redressible by an action for unliquidated damages
by way of compensation. Tort is an infringement of a private common law right in rem (right
against the entire world).
2.
The term “tort” was first reported in “Boulton v. Hardy (1597) Crown Eliz. 547, 548)” case
in England.
3.
Winfield wrote a book on “The Law of Tort”.
In his
book he gave the definition of tort as
follows; “Tortuous liability arises from the breach of a duty primarily fixed by law; this duty is
towards persons generally and its breach is redressible by an action for unliquidated damages. ”
4.
His
A person, who commits a tort or wrong, is called a “tort-feasor” or “wrong-doer”.
means
“unlawful”.
Thus
a
wrongful act is called a “tortuous act”. The term “tortuous”
“tortuous liability” can be imposed only when there is a breach of law.
5.
The damages fixed in the breach of contract and the breach of trust are called as “Liguidated
damages”.
The damages which can be fixed after the tortuous liability arisen are called as “Unliquidated
6.
damages”.
7.
The breach of a legal duty in a tortuous liability can be redressable by action for unliquidated
damages. The concept of awarding unliquidated damages for a tortuous liability is to put the
injured party in the same position, so far as moriey can do it, as if he had not been injured, i.e.,
in the position in which he would have been had there been before the tortuous liability arisen.
This is equivalent to the “Doctrine of Restitution”.
8.
Sir John Salmond wrote book named “The Law of Torts”.
In his book he gave the definition
for tort as follows: “A tort is a civil wrong for which the remedy in a common law action for
unliquidated damages, and which is not exclusively the breach of a contract or the breach of
trust or other merely equitable obligation. ”
9.
CLARK AND LINDSEL define; “A tort may be described as a wrong independent of contract
for which the appropriate remedy is a common law action.”
10-
ESSENTIAL ELEMENTS/CONDITIONS OF TORT
1.B.
10.
11.
(1) Breach of some duty, i.e., the defendant must have acted against the Law or omitted his
legal duty, which caused injury to the plaintiff; and (2) The plaintiff must have a remedy of iegal
damages from the defendant.
In # Municipal Corporation of Delhi vs. Subhagwanti (AIR 1966 SC 1750), the Supreme
Court ordered the Delhi Municipal Corporation to pay the compensation to the dependants of
the deceased and the injured persons.
12-
1.C.
DEVELOPMENT OF LAW OF TORTS IN ENGLAND AND INDIA
12.
The Law of Torts originated about some five hundred years ago in England. The term “tort”
was first reported in “Boulton v. Hardy (1597) Crown Eliz. 547, 548)” case. Still this Branch
of Law is in a developing stage. It is the creation of the judicial decisions in various occasions
suited to particular cases according to those case-laws. Recently some of the areas of this
branch have been brought into statutory force.
13.
Ubi jus ibi remedium’’ (There is no wrong without a remedy) is the basis of the Law of Torts
in England. This is a Latin maxim. The meaning of the legal terms of this legal maxim are:
= the legal authority to do or to demand something; ibi. - without;
ubi. = there; Jus.
remedium. = the right of action; the means given.by law for the recovery of assertion of a right.
The word ‘remedium’ is also used as a synonym ‘actio’.
it
32
The Law of Torts
14.
“Injuria sine damnum” means “injury without damage”.
15.
“Damnum sine injuria” means “damage without injury”.
16.
Up to the middle of the 20th century, more importance was given to the Doctrine “Caveat
Emptor”, which means “Buyer beware”, it means the customer must take care about what he
is purchasing. The seller is not held responsible.
17.
Now the position has been changed to “Caveat Venditor” (Seller beware). It means the seller
must take care about what he is selling. The seller is held responsible.
18.
The Great Britain is the birth place of the modern Parliamentary Democracy, elections and
Constitutions. It is also the birth place of the Law of Torts.
19.
1986.
20.
Yes. In Pilot Clouise Mittel Butchart vs. Oberoi International (1997), the Delhi High Court
gave the judgment on 5-1-1997 in favour of the dependants of the deceased tourist ordering the
defendant-Oberoi International to pay Rs. 50,00,000/-.
21
WRONGFUL ACT AND LEGAL DAMAGE /
1.D.
[Injuria sine damno & Damnum sine injuria]
21.
“Wrongful act” is the privation of right, an injury, a designed or known detriment,
22.
lawful damages; the damages legally entitled.
23.
Meaning: injuria. = legal injury (not ordinary injury); sine. = without; damnum. = damage.
“injuria sine damno” means “Violation of a legal right without causing any harm, loss or
damage to the plaintiff”.
24.
Examples for Injuria sine damno: Trespass, Defamation,
25.
Yes. In #Ashby vs. White (1073) 1 E.R. 417), the Court of Appeal held that the defendant was
liable, and granted nominal damages to the plaintiff.
26.
In # Bhim Singh vs. State of J.K. (AIR 1986 SC 494), the Supreme Court held that the
detention of the plaintiff was against the Fundamental Right to personal liberty guaranteed
under Article 21 of the Constitution, and ordered for the release of plaintiff and also awarded
exemplary damages amounting to Rs. 50,000/-.
27.
A customer is entitled to sue the banker, if the banker refuses to pay the cheque amount having
etc.
sufficient funds in his account. For refusing to honour the customer’s cheque, although the
customer does not thereby sustain any actual loss or damage, still he is entitled to damages
underthe Doctrine of Injuria sine damnum. This decision was given in # Marzetti vs. Williams
(1830)1 B&Ad 415).
28.
Meaning: Damnum/damno. = damage; sine. = without; injuria. = legal injury (not ordinary
injury). “Damnum sine injuria” means “causing of damage to the plaintiff without violation of
his legal right”. Such types of damage are occurred, in the exercise of legal rights by one. It
results the consequential harm to the other.
29.
No. In # Gloucester Grammar School Case (1410 Y.B. HILL 11), the Court held that the
plaintiffs had no remedy for the loss thus suffered by them under the principle of ‘damnum
sine injuria’.
30.
In Moghul Steamship Co. vs. Me. Gregor Gow and Co. (1892 AC 25), the House of Lords
held that the plaintiffs had no cause of action.
31.
In Chesmore vs. Richards (1859) 7 H.C.L. 349), the
Court held that the defendants were not
liable.
32.
In Acton vs. Blundell (1848) 12 M & W 324), the Court gave judgment that the defendants
were not liable.
33.
In Town Area Committee vs. Prabhu Dayal (AIR 1975 All 132), the Court held that the
defendants were not liable.
34.
In # Bradford Corporation (Mayor of) vs. Pickles (1895 A.C. 587), the House of Lords gave
the judgment in favour of the defendant.
35.
In # Electrochrome Ltd. vs. Welsh Plastics Ltd. (1968 2 AER 205), the House of Lords held
that the defendant was not liable, because there was no injury, as the duty not to damage the
hydrant was owed to the owners of the hydrant that was damaged and not the plaintiffs. The
defendant did not violate the plaintiff’s rights.
■36
Unit -1: Nature of Law of Torts
1.H.
33
GENERAL PRINCIPLES OF TORTUOUS LIABILITY /
THEORIES OF LIABILITY OF TORTS
36.
Is there only one fundamental general principle that it is wrongful to cause harm to other personal
in the absence of some specific ground of justification or excuse?
37.
Does it consist of a number of specific rules prohibiting certain kinds of harmful activity and
leaving all the residue outside the sphere of legal responsibility?
38.
Winfield accepted the first view. He asserted that
views in his book “The Law of Tort”.
“It is the Law of Tort”.
He asserted his
He based on the maxim “Ubi jus ibi remedium”
(There is no wrong without a remedy.) It is an elementary legal maxim. Whenever the common
law gives a right or prohibits an injury, it also gives a remedy. Upon this principle, wherever the
common law imposes a duty, and no other remedy can be shown to exist, or only one which
has become obsolete or inoperative, the Court of Queen’s Bench will interfere by mandamus.
Supporting this maxim, another maxim says: “Lex non debet deficere conquerentibus in
justitia exhibenda. ” (The law wills that in every case where a man is wronged and damaged,
he shall have the remedy.)
39.
The Pigeon Hole Theory.
40.
Salmond.
41.
The Pigeon Hole Theory was propounded by Sir John Salmond. According to him as many
pigeon-holes are there in a pigeon-nest, there are so many pigeons, sufficient to occupy the
holes. For a new pigeon, there is no hole. A separate hole has to be constructed for a new
pigeon. Similarly, as many kinds of injuries or harms are there, there must be so many tortuous
liabilities. There is no single and general liability. There will be no single general remedy. There
is no fundamental general principle. Certain principles should have been framed under tortuous
liabilities. The plaintiff/injured has to select the appropriate principle to meet the justice. If he
fails to seek the appropriate principle, that means the defendant shall not be held liable and he
shall be deemed to have not committed any tort on the plaintiff. Therefore, Salmond said: “|t
is the Law of Torts”. According to him, the Law of Torts consist only a number of specific
wrongs beyond which the liability under this branch of law cannot arise. He named his book
“Law of Torts”.
42.
1.1.
FAULT
42.
fault, (n.) = Something for which one is rightly open to blame;
moral failing.
a mistake;
a blemish;
a
43.
“Gross negligence is a fault, gross fault is a fraud.”
44.
In the Law of Torts, “mens rea” has no place. If the defendant violates the plaintiff’s right .even
without causing any damage to the plaintiff, the defendant is considered that he did “fault”, and
he is ordered to pay damages to the plaintiff. According to Salmond, “fault” is the basis of all
tortuous liability.
45.
In Rylands vs. Fletcher case, the occupier was held liable, even though he entrusted the
constructional work to a contractor, and both the occupier and contractor had no ill intention or
negligence for their act of constructing the reservoir, they were held liable under the rule “Strict
Liability” for they kept huge water which likely to do damage if it would escape. In that case,
the Court said that it is the liability of every person to take all precautionary steps to prevent the
damage to his neighbours. Even though there was no “fault” in the occupier and contractor,
the occupier was held liable in that case.
46.
In M.C. Mehta vs. Union of India (AIR 1987 SC 1087) (Oleum Gas Leak Case), the Supreme
Court widened the rule of Strict Liability laid down in Rylands vs. Fletcher, and formulated a
new rule and concept of “Absolute Liability Rule”. The Supreme Court held that even though
there is no fault of the occupier, he is held liable, if the hazardous or noxious gases or effluents
are released from his premises and cause harm to the neighbours. Even though there is no
fault or negligence in the occupier, he is strictly and absolutely held responsible, if he is failed to
prevent such hazardous or noxious gases or effluents from his premises.
47.
The modern laws have reduced the concept of “fault” and “compensation” in the law of
torts. Even there is no fault from the side of the defendant, he is held liable to pay damages/
compensation to the aggrieved persons. This is called “Liability without Fault”.
34
The Law of Torts
48.
In the Law of Torts, if a servant does “wrongful act” or “fault”, and causes any damage to the
plaintiff, the master is held liable, even though there is no fault from the side of the master
under the principle of “Vicarious Liability”, which is also known as “Respondeat Superior”.
The master is held liable for his servant’s wrongful acts caused damage to the plaintiff, even
though the master does no fault and does not want to do that fault, and does not have “mens
rea”.
49-
1.J.
49.
MOTIVE
Motive, (n.) = causing movement; that which is actuated; an actuating purpose; that which
incites to action.
50.
Examples of Motives: A steals some money from the house of B. He might have stolen the
money to feed his starving children, or to fulfill his luxuries, or to repay the debts incurred by
him. To feed his starving children, or to fulfill his luxuries, or to repay the debts, etc., are the
motives. “To steal” is A’s intention, whereas the reasons behind stealing are his motives.
51.
Section 8 of the Indian Evidence Act 1872 lays down: “Any fact is reievant which shows or
constitutes a motive or preparation for any act in issue or reievant facts. ”
52.
“Motives are irrelevant in the law of torts. ”
53.
In # Kirk vs. Gregory (1876) 1 Ex. D. 56), the Court held that the motive of the defendant was
good, but there was no necessity for the defendant to remove the jewellery from the room to
another room, and it was a trespass to the goods. She was held liable.
•54-
1.K.
MALICE / WRONGFUL INTENTION
54.
The term “Malice” Is derived from Latin term “Malitia”.
55.
There is a clear difference between malice and intention, and malice and motive. Malice
is used in between them according to circumstance in which particular wrong was committed.
Every malice, there must be some design and vengeance in the acts of the wrong-doer. If A
burns B’s house intentionally, it shows his malice. In A’s act, malice, design and vengeance
against B are present.
56.
It means “spite, evil intention,
malevolence, etc. In Law, It also means “wrongful intention”, “recklessness”,
“wickedness in moral or physical”.
In Law, malice can be divided into two kinds. They are; (1) Malice in Law; and (2) Malice in
Fact or Evil Motive.
57.
58.
“Malice in Law” is an “intentional doing of a wrongful act”. It is synonymous with
“intention”. Justice Bayley described “Malice in law” in the following words: “Maiice in
common acceptation means ili-wiil against a person, but in its legai sense it means a wrongfui
act, done intentionaily without just cause or excuse. If I give a stranger a perfect blow likely to
produce death, I do it out of malice, because I do it intentionally and without Just cause or
excuse. If I maim cattle without knowing whose they are, if poison a fishery, without knowing
the owner, I do it out of malice, because it is a wrongful act, and done intentionally. ”
“Malice in Fact” is also called as “Evil Motives”, “Express Malice”, “Actual Malice”, “Improper
Motives”, etc. All these names are used in its narrow and popular sense. Malice-in-fact is an act
done with ill will towards an individual. It depends upon motive. Motive is the ulterior reason for the
act of the doer. If a person does lawful acts with bad motives, the law does not punish him. If a
person does unlawful or wrongful acts with good motives, the law does not excuse him, and it
punishes him. To help the poor is a good motive. But to help the poor, to plunder the rich is unlawful.
To feed his starved children, if A steals money purse of B, the Court cannot consider his motive to
feed his starved children, but it punishes for A’s wrongful act of stealing. In general, motive is
irrelevant in tortuous liability. “Damnum sine injuria” is a good legal maxim giving certain examples
of case-law explaining the motives (malice in fact).
■59
[Note: Generally, the Problems are asked basing upon Sections, Illustrations
and case-laws. The student is advised to memorise Sections, illustrations and
case-laws.]
!■
Unit -1: Nature of Law of Torts
35
STATUTORY LIABILITY
1.N.
59.
“Regard for the public welfare is the highest law.”
60.
Statutory Authority is a complete defence and justifiable ground against the tortuous liability.
61.
In Vaughan vs. Taff Valde Rail Co. (1860) 5 H&N 679), the House of Lords gave the judgment
in favour of the defendant, being the statutory authory and it was not liable to pay compensation.
62.
Section 41 (1) of the Criminal Procedure Code, 1973 empowers a police officer to arrest any
person, who is suspected to be indulged in any cognizable offence. It is the duty of the person
to answer the questions, and to prove his innocence on that circumstance. If the person tries to
run away, and the police officer chases him. Ho arrests that person. If the arrested person
receives any injuries while In chasing and capturing, the police officer is not held responsible.
Statutory Authority is a good defence to the police officer.
63.
In Hammer Smith Rail Co. vs. Brand (1869, L.R.H. 171), the Court gave the judgment that the
Railway was not liable. It held that where a statute authorises certain acts to be carried, the
incidental torts are also presumed to be exempted.
64.
The statutory authority could not save the officials, who behave negligently. In Smith vs. London
& South Western Railway Co. (1870, LR 6 CP), the railway company accumulated the dry
grass at a place near a railway line for several days. They neglected to remove the heap from
that place for a long time. The sparks from an engine set the dry grass on fire. It spread and
destroyed the plaintiff’s house, which was situated 200 yards away from the railway line. The
plaintiff sued. Decide. The House of Lords held that it was happened due to the negligence of
the railway co., and therefore, they were held responsible.
65.
In # Metropolitan Asylum District vs. Hills (1881) 6 A.C. 193), the House of Lords ordered
the appellants to remove the small-pox hospital from that locality.
■66-
1.0.
FOREIGN TORTS
limits of that country, i.e., in foreign
country, it is called the “Foreign Tort”. In fact, it is the jurisdictional issue of the civil Courts
and particularly of the Public International Law.
66.
Where the defendant commits a tort outside the territorial
67.
A, an Indian, commits a tort in Nepal. Nepal is a foreign country for India. The Indian Court has
no competent authority to try such a tortuous case. Nepal is the competent to try such a case.
If B, a Nepali, publishes a defamatory matter against C, an Indian citizen, residing in Mumbai, C
can sue B in the Mumbai Court.
68.
In Machado vs. Fontes (1897) 2 QB 231) case, the defendant contended that the defamation
would be considered as a criminal wrong, but not as a civil wrong or tort in Brazil, thus the
plaintiff had no right to sue him for compensation as a civil wrong. The Court gave judgment in
favour of the plaintiff.
69.
In Chaplin vs. Boys (1971 AC 356), the House of Lords rejected the contention of the
defendants and granted the damages, including for the damages for pain, suffering and loss of
amenities.
70-
I.P. MISCELLANEOUS TORTS AND DOUBTFUL TORTS - FRANCHISE
70.
As the name itself indicates, certain torts are termed as the “Miscellaneous Torts and
Doubtful Torts”. The scope of tortuous liability has been increasing. Doubts have been
expressed whether some of these newly recognized wrongs are really torts in the strict sense
of the term. Therefore these Miscellaneous Torts are also called as the “Doubtful Torts”.
71.
Generally these are arisen from the Royal Grant/State
Permission. Hence these are also termed
as “Franchise”.. The term “Franchise” means “a formal permission given by a company to
any person who wants to sell his goods or services in a particular area; a formal permission
given by a Government to a person who wants to operate a public service as a business; the
right to vote in a country’s election”.
72.
It is a miscellaneous tort against A.
The Law of Torts
36
73.
“A franchise is a Royal privilege or branch of the King’s prerogative subsisting in the hands of a
subject. It is... a franchise for a number of persons to be incorporated and subsist as a body
politic. Other franchise are... so have waifs, wrecks, strays, treasure, trove, royal fish, forfeiture
...to have a fair, or market with the right of taking toll... or lastly to have a forest, chase, park,
warren or fishery endowed with the privileges of royalty.”
74.
It is a miscellaneous tort against A.
75.
In Bridgland vs. Shapter (1839) 5 M&W 375), the defendant
was held liable under
miscellaneous/doubtful tort.
ADVICE
THERE IS NO SHORT WAY TO SUCCESS.
HARD WORK IS THE MEANS AND WAY
TO SUCCESS. GET THOROUGH IN THE LAW SUBJECTS, IF YOU WANT TO BE IN
THE PROMINENT PLACE IN THE LEGAL FIELD.
Each of the Sujatha Law Series is useful and helpful
to the students:—
1.
For getting the highest ranks, gold medals in LL.B. Degree;
2.
To get the highest marks in Bar Council’s Eligibility Test;
3.
To get the highest rank in PGLCET/LLMCET;
4.
To get the posts of Public Prosecutors/Judicial Service by helping in the screen test and
concept oriented test.
5.
At least for 15-20 years in practice.
Fill up the blanks with answers are given at the end of each Unit of majority subjects. If in any
subject. Fill up blanks will be added at the time of the Revised Edition of that subject.
Instead of Multiple Choice/Object Questions, I prefer to write fill up the blanks, because they consume
lesser space, and immediate attention. Don’t copy in the internal examinations. It will harm you. If
you study each subject with concept questions and later fill up the blanks, you will have greater
remembrance. It will be useful to you in the LL.B. Examinations, Bar Council’s Eligibility Test, LL.M.
Entrance Test, PP and Judicial Examinations, and any other competitive examinations.
Therefore, I advise you neither lend nor borrow your Sujatha Law Series.
I also advise the student to purchase Sujatha Law Series at the time of admission into LL.B.
course. Thereafter, after writing the first semester, immediately purchase the second semester,
and immediately start reading the subject.
Don’t purchase hurry-burry on or before the day of examination. It will be nothing useful to you. It
is just like ONE DAY WICKET or TWENTY-TWENTY MATCH. You cannot acquire knowledge in
that speed. There is no short way to success. Hard work is the means and way to success.
Get thorough in the Law Subjects, if you want to be in the prominent place in the legal
field.
2350 GOLDEN LEGAL MAXIMS
Compiled : Gade Veera Reddy
It is a useful book to law students. It contains 2350 legal maxims explained in English.
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p
i
UNIT-II
PARTIES TO THE PROCEEDINGS
In this Unit, you study,—
2A
PARTIES TO THE PROCEEDINGS.
2.A (i) PERSONAL CAPACITY / “Every person has the capacity
tort.
to sue and be sued in
ff
j
2.A
(ii) Corporation.
2.A
(iii) Minors and Lunatics.
2.A
(iv) Alien Enemies and Convicts.
2.B. GENERAL DEFENCES AND JUSTIFICATION OF TORTS
2.B. (a) General Defences and Justification of Torts.
2.B. (b) Voienti Non Fit injuria.
2.B. (c) Inevitable Accident / Unavoidable Accident.
2.B. (d) V7s Mayor (Act of God)
2.B. (e) Necessity.
2.B. (f) Judicial Acts.
2.C. Joint Liability / Joint Tort-Feasor.
2.D.
VICARIOUS LIABILITY.
2.D. (i) Vicarious Liability.
2.D. (ii) Liability of the State for Torts / Act of State - Defence of Sovereign Immunity.
2.D. (iii) Vicarious Liability of a Master for his Servant’s Tortuous Act.
2.D. (iv) Vicarious Liability of a Master for his Independent
Contractor’s Tortuous Act.
2.E. THE RULE OF STRICT LIABILITY (Rylands vs. Fletcher).
2.F.
THE ABSOLUTE LIABILITY (M.C. Mehta vs. UOI).
2.Gl Occupier’s Liability for Dangerous Premises.
2.A.
2.A.(i).
PARTIES TO THE PROCEEDINGS
PERSONAL CAPACITY / “Every person has
the capacity to sue and be sued in tort.
Q.1.
"All persons have the capacity to sue and be sued In tort.
This, however, is a general rule and is subject to modification in respect
Examine this statement with respect to,— (i) a Minor; and (ii) a Lunatic.
(AnI., 2010, D.U.)
(AnI., 2011, M.U.) (AnL, 2011, A.U.) (AnI., 2012, Burd.U.) (AnI., 2012, B.U.) (AnI., 2013, G.U.) (AnI., 2014, S.U.)
of certain categories of persons."
Q.2.
Discuss various exceptions to the rule that everyone can be sued in tort.(Anl., 2010, S.V.U.) (AnL, 2010, G.U.) (AnL, 2012, K.U.)
Q.3.
“All persons are entitled to sue and are liable to be sued in tort.’
statement.
Examine this statement and state the exceptions, if any to this
(AnL, 2008, N.U.) (June, 2010, M.U.) (May, 2011, A.U.) (May, 2009, O.U.)
Q.4.
Sovereign Immunity.
Q.5.
Ambassadors.
Q.6.
The Vienna Convention on Diplomatic Relations,
Q.7.
Former Rulers of Indian Territory.
(SN)
Q.8.
Unincorporated Associations.
(SN)
Q.9.
Trade Unions.
(SN)
(SN)
(SN)
1961.
Q.10. Insolvent.
(SN)
(SN) (AnL, 2008, Amb.U.)
Q.11. Highway Authorities.
(SN)
Q.12. S. Vedantacharya vs. Highway Department of South Arcot (1987) 3 SCC 400).
(SN)
Q.13. Dr. C. B. Singh vs. The Cantonment Board, Agra (1974 ACJ 248).
(SN)
II
38
The Law of Torts
Q.14. Minors and Lunatics.
Q.15, Wife and Husband.
(SN)
(SN) (AnI., 2010, K.U.) (Anl., 2011, N.U.)
Q.16. Aiien Enemies and Convicts.
(SN)
Q.17. Joint Tortfeasors.
(SN)
ANSWER:
PERSONAL CAPACITY / “Every person has the capacity
to sue and be sued in tort.”
GENERAL PRINCIPLE: It is the general principle that “every person has the capacity to sue and be
sued in tort”.
EXCEPTIONS: There are certain persons exempted from this general rule. These persons have no
capacity to sue and be sued on their names in torts. They are:
1.
Sovereign immunity: A State is different sovereign with another. When a tortuous act is
committed by a State in its sovereignty, the municipal courts and other States cannot entertain
any suits against that State. Those acts are called “Act of State”. [Refer to Topic 3.B. “Act of
State”.]
2.
Ambassadors: The Vienna Convention on Diplomatic Relations, 1961 confers certain
privileges and immunities to diplomatic representatives, ambassadors. India signed on it. According
to International Law and the provisions of Vienna Convention, in India, any ambassador or diplomatic
representative of a foreign State, any High Commissioner of a Commonwealth country and any
such member of their staff, cannot be sued, except with the consent of the Central Government
certified in writing by a Secretary to the Government.
Section 86 of the Civil Procedure Code, 1908 provides the lengthy procedure for obtaining the
consent. Practically, the Central Government has not given any such consent up to now. Generally,
the Central Government asks the ambassadors, diplomatic representatives to leave the country
if any of such persons does any tortuous acts against Indian people in India.
3.
Former Rulers of Indian Territory: Section 87-B of the C.P.C. confers the same immunity of
Section 86, which confers certain privileges to ambassadors, to the former Rulers of the Indian
Territory. However, after the formation of Indian Union, and the Constitution of India, 1950
came into force. It adopted the principle of equality among all the citizens including former rulers.
The privileges and immunities of the former rulers of the Indian Union had been removed completely.
Now they are equal with other citizens of India. Therefore, now they can sue and can be sued like
ordinary citizens in India for tortuous acts.
4.
Unincorporated Associations: The unincorporated associations are not recognised as juristic
persons. Private Limited Companies, Public Limited Companies, Corporations, etc. are juristic
persons. They can sue and can be sued for a tortuous act. Unincorporated Associations cannot
sue, and also cannot be sued for a tortuous act. The President, Secretary, or any other official of
an unincorporated association can sue or can be sued in his personal capacity and on his personal
name.
5.
Trade Unions: The Trade Unions Act, 1926 in India recognises the trade unions as juristic
persons. The condition is that it must be a registered one. An unregistered trade union is not a
juristic person. Therefore, it cannot sue and cannot be sued. The Trade Unions Act, 1926 confers
certain immunities and rights to the trade unions. Section 18 lays down that no suit shall lie
against a registered Trade Union, its members or officers in respect of any act done in contemplation
or furtherance of a trade dispute to which a member of the Trade Union is a party on the ground
only that such act induces some other person to break a contract of employment, or that it is an
interference with the trade, business, or employment of some other person or with the right of
some other person to dispose of his capital or labour as he wills.
6.
Insolvent: When a person files an insolvency petition before the Court, he is declared as
“Insolvent”, and an Official Trustee or Assignee or Receiver is appointed by the Court for the
benefit of his creditors. His property shall be administered by the person appointed by the Court.
If any tortuous act is done against the property of insolvent, the insolvent cannot sue the wrong
doer. The Official Assignee shall have to sue the wrong-doer. If any tortuous act is done against
the person of insolvent, then the insolvent can sue the wrong-doer on his own name. Similarly, if
any tortuous act is caused by the property of the insolvent, the injured person shall have to sue the
■ Official Assignee, but not the insolvent. If any tortuous act is occasioned by insolvent personally,
then the injured person can sue the insolvent directly.
7.
Highway Authorities: In England, the Highway Authorities were not held liable for any tortuous
act arose in highways. However, “the Highways Act, 1980” has been enacted there making the
HighwayAuthoritiesliablefornon-repairof Highways, etc. In India, there is no such Act. However,
the Supreme Court and the High Courts made the Highway Authorities
liable in certain
cases.
Unit - II: Parties to the Proceedings
39
S. Vedantacharya vs. Highway Department of South Arcot (1987) 3 SCC 400)
(Capacity to sue or to be sued)
A bus was plunged into a river on collapse of culvert on the highway. The Supreme Court held the
Highways Department of Tamil Nadu was liable for its negligence for non-providing the safety-measures.
Dr. C. B. Singh vs. The Cantonment Board, Agra (1974 ACJ 248)
(Capacity to sue or to be sued)
The defendant failed to keep proper lighting on the highway, due to which an accident occurred and the
plaintiff received injuries. The Supreme Court held the defendant liable.
There are certain other persons, whose position to sue and can be sued is somewhat peculiar. They
are:—
1.
Corporation;
[Refer to Topic “Corporation”.]
2.
Minors and Lunatics;
[Refer to Topic “Minors and Lunatics”.]
3.
Wife and Husband;
[Refer to Topic “Torts affecting Family”.]
4.
Alien enemies and Convicts;
5.
Joint Tortfeasors.
[Refer to Topic “Alien Enemies and Convicts”.]
[Refer to Topic “Joint Tortfeasors”,]
2.A.(ii).
CORPORATION
Q.1.
Corporation.
Q.2.
Campbell vs. Paddington Corporation (1911) 1 K.B. 869).
Q.3.
Union Carbide Corporation vs. UOi (1991) 4 SCC 584).
(SN)
Q.4.
M.C. Mehta vs. UOi (AiR 1987 SC 965).
(SN)
(SN)
(SN) (AnI., 2009, K.U.) (AnI., 2010, A.U.) (AnI., 2011, M.U.)
ANSWER:
CORPORATION
(EQ/SN)
IMPORTANT POINTS:
A. Acorporation is a person. However, it is not a physical person. But it is a fictitious, artificial, juristic
person. It can sue and can be sued. A corporation can be held liable for its tortuous liability. A
corporation is liable both for ultra vires and intra vires torts.
B. Acorporation is a juristic person, but cannot perform its duties and rights itself. The human beings,
viz. its managing director, directors, secretaries, etc. perform the duties of a corporation on behalf of it.
A resolution passed by the majority members of a corporation represents the will of the corporation.
C.
Campbell vs. Paddington Corporation (1911) 1 K.B. 869)
(Corporation)
The defendant-a metropolitan borough constructed a stand on highway to enable the members of
Council and their friends to see the King Edward-VH’s funeral procession. This stand was quite
opposite to the plaintiffs house. The plaintiff had collected some money from the intending parties to
view the funeral ceremony and arranged seats for them. As a result of the stand constructed by
Council, the plaintiff and her paying guests could not view the funeral procession. The plaintiff sued
the defendant. The defendant argued that the stand was constructed as perthe resolution. The Court
held that the defendant-corporation had no right to violate the private rights, and therefore, they were
liable to pay compensation to the plaintiff.
D. Acorporation can sue any tort-feasor who did any tortuous acts against the property of the corporation.
Similarly, a corporation can also be sued for trespass, libel, trover, conversion, negligence, malicious
prosecution, fraudulent misrepresentation, etc.
E. Environmental Pollution Cases: Several thousands
of environmental pollution cases are filed in
the lowest trial Courts to up to the Supreme Court against several companies. Examples: M.C. Mehta
vs. UOI (Bhopal Gas Leak Case), Union Carbide Corporation vs'. UOI, etc.
In Union Carbide Corporation vs. UOI (1991) 4 SCC 584), M.C. Mehta vs. UOI (AIR 1987 SC 965), etC., Several Companies,
multinational corporations, were sued for the damages.
Collect syllabus and previous question papers of your University. The previous question papers are very useful
in anaiysing the subject, and they show the path to examination, and to get the highest marks. The previous
question papers guide you to get the highest marks, just iike a torch light helps us in the dark nights.
40
The Law of Torts
One and foremost of the Golden Ways to get the Gold Medals and highest marks is to refer to the syllabus,
previous and model question papers. For the law course, particularly for the new syllabus, which has
introduced new subjects with elaborative Acts, Topics, material, etc., the above said principle is quite
applicable.
The best way of the investment is the education, which cannot be stolen, but increases more and more as
it is given to others. — Bhartruhari.
2.A.(iii).
MINORS AND LUNATICS
Q.1.
Minors.
Q.2.
“Mohiribibi vs. Dharmodas” (1903).
Q.3.
“The Congenital Disabilities (Civil Liabilities) Act,
Q.4.
Tortuous Liability of Minors.
Q.5.
Tillander vs. Gosselin (1967 ACJ 306).
(SN)
Q.6.
Me Hale vs. Watson (1966) 115 CLR 199).
(SN)
Q.7.
Swaroopkishore vs. Gowardhandas (1955 MB 355).
(SN)
Q.8.
# Burnard vs. Haggis (1863) 14 CBNS 45).
(SN)
Q.9.
Gibson vs. O’Keeney (1928 Nl 66).
(SN)
(SN)
(SN)
1976”.
(SN)
(SN) (Ani., 2012, Amb.U.) (AnI., 2013, D.U.) (AnI., 2014, S.U.)
Q.10. Bebee vs. Sales (1916) 32 TLR 413).
(SN)
Q.11. O’Brien vs. Mcnamee (1953) Lr.R. 86).
(SN)
Q.12. LUNATICS.
(SN) (Ani., 2006, K.U.)
Q.13. Insanity is a Defence in Tort.
(SN) (Ani., 2011, K.U.) (Oct., 2012, O.U.)
ANSWER:
MINORS AND LUNATICS
(EQ/SN)
(i) MINORS: Who is a minor? Section 3 of the Indian Majority Act, 1875 defines minority that
every person domiciled in India shall be deemed to have attained his majority when he shall have
completed his age of eighteen years, and not before. If a guardian or ward is appointed by a Court to
superintendent the property of a minor, in such a case, he attains majority when he completes the age
of twenty one years.
Sections 10 and 11 of the Indian Contract Act, 1872 say that a contract entered by a minor is void ab
initio. The Privy Council affirmed the said principle in “Mohiribibi vs. Dharmodas” (1903) case.
Section 82 of the Indian Penal Code, 1860 gives complete immunity to minors of tender years, i.e.,
children below the age of 7 years shall not be held liable for any criminal offences. According to
Section 83, the children aged between 7 and 12 also shall not be held responsible for any criminal
offences, unless they are proved that they attained sufficient maturity to judge the nature and
consequences of their conduct and they did the criminal act intentionally.
The Indian Evidence Act, 1872 accepts the testimony of children, if the Court is satisfied that they
have capacity to give rational testimony.
TORTUOUS LIABILITY OF MINORS: A minor can sue the tort-feasor. However, he cannot sue the
tort-feasor directly. He can sue through his next-friend, i.e. mother or father. A child in fetus can also
sue for the pre-natal injuries and injustices. The British Parliament passed an Act “The Congenital
Disabilities (Civil Liabilities) Act, 1976”. This Act makes the person liable, whose tortuous acts
affect the child to be born disabled. There is no such Act in India.
A minor is protected in criminal and contractual liabilities. But this protection is not afforded in tortuous
liabilities. A minor can be sued for his tortuous acts.
Tillander vs. Gosselin (1967 ACJ 306)
(Minor’s Capacity)
In this case, a child aged 3 years dragged another child aged 3 years for several feet, and caused
serious injuries. The Court did not impose any tortuous liability, opining that the child did it with innocence,
but not with negligence or malice.
Me Hale vs. Watson (1966) 115 CLR 199)
(Minor’s Capacity)
A minor aged 12 thrown a metallic dart towards a post, which hit another girl aged 12 years. The Court
acquitted the minor opining that there was no negligence on the part of the minor.
Unit - II: Parties to the Proceedings
41
Swaroopkishore vs. Gowardhandas (1955 MB 355)
(Minor’s Capacity)
In this case, a minor attacked and assaulted an innocent person. The Court held the minor was liable.
The Court opined: “The minors are liable for wrongs of omission as well as for wrongs of commission.
They are held liable for assault, false imprisonment, libel, slande,r seduction, trespass, wrongful detention
of goods, fraud, embezzling money, nuisance, etc.
W
•
PROBLEM: X, a minor boy, hired a mare for ride. The owner of mare cautioned him that mare would
not be made to jump. But X made it to jump and mare was hurt. Explain the liability of Mr. X, if he is
liable under test?
(Aug., 2002, A.U.)
SOLUTION:
X is liable.
The facts of the problem are identical with Burnard vs. Haggis.
This is
discussed hereunder:—
It is the general rule that where a minor obtains certain goods under a contract, and damages them, he
cannot be held liable for tortuous liability. In Jennings vs. Rundall (1799 (8) TR 335 RR 680) case, a
minor hired a mare. It was injured due to override by the minor. The Court held that the minor was not
liable.
However, there may be certain cases of torts which may originate in a contract, but the wrongful act
may be considered to be totally outside the contract as in the following case:—
# Burnard vs. Haggis (1863) 14 CBNS 45)
(Minor’s Capacity)
Brief Facts: A, a minor, approached B, the stable keeper and asked a horse for riding. B gave a
horse, and expressly told A that it was “not fit for jumping or larking”. A lent the horse to his friend.
The friend used the horse for jumping over a fence. As a result it was impaled and killed.
JUDGMENT:
The Court held that the minor was liable
for negligence, as the same was held to be
independent of the contract.
PRINCIPLE: While disposing the case, Willes, J. said: “It appears to me that the act of riding the
mare into the place where she received her death wound was as much a trespass notwithstanding the
hiring for another purpose, as if without any hiring at all, the defendant had gone into a field and taken
the mare out and haunted her and killed her. It was a bare trespass, not within the object or purpose
of hiring. It was not even an excess. It was doing an act, towards the mare which was altogether
forbidden by the owner. ”
Liability of parents: The parent (mother or father) and in the absence of the parents, the guardian is
responsible for minor’s tortuous acts. If a father gives his motor cycle or car to his minor son, who
does an accident, the father is held responsible. The Motor Vehicles Act, 1988 strictly imposes this
restriction.
Gibson vs. O’Keeney (1928 Nl 66)
(Minor’s Capacity)
The father sent his minor son for a work and handed over his cart and horse to him.
negligently drove the horse-van and caused injury to
The minor
the defendant. The Court held that the father was
liable for the minor’s acts.
Bebee vs. Sales (1916) 32 TLR 413)
(Minor’s Capacity)
Parents must be very careful in handling the dangerous things, and especially take the care that the
children should not touch them. Revolvers, gas, etc. are the dangerous appliances. The minors do
not know their dangerous nature. They may use them without proper care, and may cause harm to
others. In such occasions, the parents are held liable. In the above case, the father gave an air-gun to
his son, who negligently and innocently used it, and caused injury to the defendant. The Court held
that the father was responsible.
O’Brien vs. Mcnamee (1953) Lr.R. 86)
(Minor’s Capacity)
A child of 7 years age trespassed into the premises of the plaintiff. He did not heed the words of the
plaintiff. The Court held that a minor is responsible fora trespass like a person of full age.
Doctrine of Restitution: If a minor falsely represents his age, and obtains any property, and
appropriates it, he is liable to restore it. It is called “the Doctrine of Restitution.” Lord Sumner said:
“Restitution stops where repayment begins.” [Refer to Topic “Doctrine of Restitution” in
Contract-1 Notes.]
42
The Law of Torts
(ii)
LUNATICS
(SN)
A lunatic is not competent to contract according to Section 10 of the Indian Contract Act, 1872.
Section 12 of the said Act defines “Lunacy”. Lunacy/Insanity is a good defence in the criminal law.
Section 84 of the Indian Penal Code, 1860 exempts the insane persons from criminal liability. In
M’Naughten’s case, the House of Lords formulated certain principles of criminal liability of insane
persons. However, in the law of torts, insanity is not a good ground to escape tortuous liability. A
lunatic can be held liable if his acts resulted into tortuous to others. In criminal liability, “mens rea”\s an
essential element. But it is not necessary in tortuous liability. The physical acts constitute injury to the
plaintiff, and therefore a lunatic can be held liable, and he can be ordered to make the compensation to
the injured.
A driver cannot argue that due to lunacy and mental depression he drove the vehicle and did the
accident. At first, a lunatic person cannot be granted the driving licence. In assault, trespass, false
imprisonment, wrongful detention of goods, nuisance, etc. a lunatic can be sued and can be made
liable. However, in certain tortuous acts, such as deceit, defamation, malicious prosecution, etc. which
acts require malice and ill-motive. In these cases, the plaintiff has to prove the lunatic person’s malice
and ill-motive successfully, which are very hard to prove in case of insane persons. The defendantlunatic can escape his liability that he did not do such acts voluntarily,
(iii) Married woman:
2.A.(iv).
[Refer to Topic “Torts Affecting Family”.]
ALIEN ENEMIES AND CONVICTS
Q.1.
Alien Enemies.
(SN) (AnI., 2009, A.U.)
Q.2.
Convicts.
(SN) (AnI., 2011, K.U.)
Q.3.
D.B.M. Patnaik vs. State of A.P. (AIR 1974 SC 2092)
(SN)
Q.4.
Suk Das vs. Union Territory of Arunachai Pradesh (1986) 25 SCC 401)
(SN)
Q.5.
Kishore Singh vs. State of Rajasthan (AIR 1981 SC 625)
(SN)
Q.6.
Articles 20 and 22 of the Constitution of India.
(SN)
ANSWER:
(i)
ALIEN ENEMY
(SN)
MEANING: “Alien enemy”means a person who by reason of owing a permanent or temporary allegiance
to a hostile power, becomes, in time of war, impressed with the character of an enemy.
IN ENGLAND: If England declares war with any country, the persons of that country are declared as
alien enemies. For example: England declared wars against France, Algeria, Germany, Albania, Italy,
Egypt, etc. before the Second World War. If England declared war against France, then the people of
France become as alien enemies to England. If such alien enemies are carrying business in England
at the time of the declaration of the war, those alien enemies are not entitled to continue the business,
and also are not entitled to sue or to be sued. Even
with hostile countries are treated as alien enemies.
the British nationals who reside or carry business
IN INDIA: England-was a big power. She used to declare wars with several countries. Therefore it
was necessitated to that country to formulate the strict rules restricting the business with hostile
countries, and alien enemies. In India, such tension does not occur frequently. India does not want to
declare wars. Only Pakistan and China are hostile countries to India. Even then, India wants to
reduce the tensions with her neighbouring countries. Section 83 of the Civil Procedure Code, 1908
lays down the provisions regarding aliens. According to this Section, the aliens may sue. (This Section
and the entire Code were enacted during the British reign ) This section lays down that alien enemies
residing in India with the permission of the Central Government, and alien friends, may sue in any
Court otherwise competent to try the suit, as if they were citizens of India, but alien enemies residing
in India without such permission, or residing in a foreign country, shall not sue in any such Court.
Explanation to this section clarifies that every person residing in a foreign country, the Government of
which is at war with India and carrying on business in that country without a licence in that behalf
granted by the Central Government, shall, for the purpose of this Section, be deemed to be an alien
enemy residing in a foreign country.
(ii)
CONVICTS
(SN)
According to the English law, a convict enjoys all civil rights^ even though he is punished for his criminal
liability, and is put in prison. The same position is in Indian Law. Article 21 of the Indian Constitution
says that no person shall be deprived of his life or personal liberty except according to procedure
established by law. This fundamental right is extended to the convicts also. A convict can sue or can
be sued for any tortuous liability.
4
i
Unit - II: Parties to the Proceedings
43
D.B.M. Patnaik VS. State Of A.P. (AIR 1974 SC 2092)
(Convicts)
The plaintiff was a Naxalite, and prisoned in Visakhapatnam Jail. He contended that armed police
guards, live-wire electrical mechanism etc., were depriving his fundamental rights. The Supreme
Court held that he was not tortured by these arrangements, which were necessary according to
Prisoners Act.
Suk Das vs. Union Territory of Arunachal Pradesh (1986) 25 SCC 401)
(Convicts)
The accused-prisoner requested the State to provide him free legal aid, which failed; The Supreme
Court held thatthe prisonerwas entitled forfree legal
aid.
Kishore Singh vs. State of Rajasthan (AIR 1981 SC 625)
(Convicts)
The prisoner-accused contended that he was tortured by the police, and third-degree was used against
him. The Supreme Court held that the use of third-degree was against the principles of natural justice,
and also to the provisions of Article 21, and the State was held liable.
The result of the various cases before the Supreme Court is that the convicted person can sue any
person including the State if its officials’ tortuous acts affect on the convicted person.
INDIAN CONSTITUTION: Article 20 lays down the provisions about the Protection in respect of
conviction for offences. (1) No person shall be convicted of any offence except for violation of the
law in force at the time of the commission of the act charged as an offence, nor be subjected to a
penalty greater than that which might have been inflicted under the law in force at the time of the
commission of the offence. (2) No person shall be prosecuted and punished for the same offence
more than once. (3) No person accused of any offence shall be compelled to be a witness against
himself.
Article 22 lays down the provisions about “Protection against arrest and detention in certain
cases”,
(iii) Married Women:
2.B.
[Refer to Topic “Torts affecting Family”.]
GENERAL DEFENCES TO AN ACTION IN TORTS
2.B.(a).
GENERAL DEFENCES AND JUSTIFICATION OF TORTS
Q.1.
What are general defences to an action in Torts?
Q.2.
Enumerate and examine the general defences to
Q.3.
Plaintiff-the Wrong-doer.
Q.4.
“NuUus commodum capers potest de injuria sua propria.'
(May, 2008, O.U.) (AnI., 2010, M.U.) (AnI., 2011, Atnb.U.) (AnI., 2012, K.U.)
(AnI., 2012, N.U.) (AnI., 2013, D.U.) (AnI., 2014, S.U.)
an action in tort.
(AnI., 2011, B.U.) (May, 2013, G.U.)
(SN)
(SN)
M
Q.5.
"Ex turpi causa non oritur action
Q.6.
Private Defence.
(SN)
Q.7.
Ramanuja Mudali vs. M. Gangan (AIR 1984 Mad. 103).
(SN)
(SN
Q.8. Collins vs. Renison (1 Sayer 138).
Q.9.
(SN)
Mistake.
(SN)
Q.10. "ignorantia facti excusat, ignorantia Juris non
excusat.
ff
(SN)
Q.11. Parental and Quasi-Parental Authority.
Q.12. Dilatory Plea/Defence/Dilatoriness.
(SN)
(SN) (Jan., 2004, N.U.) (AnI., 2011, M.U.)
Q.13. Justification of Torts.
(SN) (Sept., 2013, O.U.)
ANSWER:
GENERAL DEFENCES AND JUSTIFICATION OF TORTS
(EQ/SN)
MEANING: When the defendant causes harm or injury to the plaintiff, the plaintiff has a right of
remedy by way of compensation in Law of Torts. However, in certain circumstances, the plaintiff could
not get success, even though he successfully proves his injury. The defendant pleads certain grounds
for the justification of torts he caused to the plaintiff or to the property of the plaintiff. These are called
the “General Defences of Tortuous Liability” or “Justification of Torts”. Under these grounds,
the defendant is excused.
44
The Law of Torts
Sir Frederick Poilock explains them: “The rules of immunity which limit the rules of liability. There
are various conditions which, when present, will prevent an act from being wrongful which in their
absence would be a wrong. Under such conditions the act is said to be justified or excused. And
when an act is said in general terms to be wrongful, it is assumed that no such qualifying condition
exists."
General Defences or Justification of Torts: The following are the General Defences or Justification
of Torts, and excuse the defendant from the tortious liability:—
1.
Volenti non fit injuria;
2.
Plaintiff the wrong-doer;
3.
Inevitable accident;
4.
Vis Major (Act of God);
5.
Private Defence;
6.
Mistake;
7.
Necessity;
8.
Statutory Authority;
9.
Judicial Acts;
10. Parental and Quasi-parental authorities;
11.
Dilatory Defence; and
12. Contributory negligence.
1. Volenti non fit injuria: [Refer to Topic 2.B.]
PLAINTIFF THE WRONG-DOER
2.
(SN)
“Nulius commodum capere potest de injuria sua propria.” This legal maxim means “No man
can take advantage of his own wrong.” This legal maxim elucidates that a wrong-doer ought not
to be permitted to make a profit out of his wrong. Therefore, if a person for his own purposes uses
another’s land, he ought to pay compensation for such use. Justice Willes observed: “No man is
allowed to take advantage of his own wrong; far less of his wrong intention which is not expressed.”
Another legal maxim “Ex turpi causa non oritur action” says that “From an immorai cause no
action arises.
ft
Examples:
(a) A is the wife of B. C induces A to divorce B, and gives Rs. 50,000/- to A. A does not give divorce
to B, and remains with B. C cannot sue A for the recovery of the sum, because C himself is a
wrong-doer,
(b) A possesses a citizen watch. B steals it from A. From B, C steals. A sues B and C. But B
cannot sue Cor A, being himself is a wrong-doer. [Note: Under the Law of the Possession, if A
is not traced or the owner is not found, B can sue C.]
(c) A-a thief enters into the house of B in a night to steal B’s property. B notices A, and hits with club.
A cannot sue B for the tort of assault committed by B.
3.
Inevitable Accident:
4.
Vis MaJorlAct of God: [Refer to Topic “Vis Mayor/Act of God”.]
5.
[Refer to Topic “Inevitable Accident”.]
PRIVATE DEFENCE
(SN)
Private defence is a good defence in criminal law and also in law of torts. It is recognised as a good
and justifiable ground. The law recognises one’s rights against his person and property. It is the duty
of every person to protect himself, his dependents and his property. If any other person invades
against him, he can successfully react with reasonable force, required for self-defence. In doing so, if
he causes injury or even death to the wrong-doer/defendant, he shall not be held liable.
However, the force should not be used in excess.
It must be reasonable depending upon the
circumstance. A-an old woman entered into the house of B to steal some rice.
B had beaten her with
club severely, and A died. Here B used excessive force. Hence B is not entitled for the plea of private
defence.
45
Unit - II: Parties to the Proceedings
Ramanuja Mudali vs. M. Gangan (AIR 1984 Mad. 103)
(Private Defence)
agricultural land with an intention to prevent the
wild animals. He did not arrange any visible signs or boards to the public. While coming from his own
land to the village, the plaintiff was caught with electric wires, and as a result he received serious
injuries. The Madras High Court held the defendant liable.
The defendant installed live electric wire around his
Collins vs. Renison (1 Sayer 138)
(Private Defence)
The plaintiff climbed and stood at the edge of the ladder with an intention to nail on the wall of the
defendant. The defendant did not like the nailing on his wall. He shook the ladder, and as a result the
plaintiff fell down and received injuries. The Court held that the defendant used excessive and
unreasonable force, and therefore, he was held liable.
(SN)
MISTAKE
6.
“Ignorantia facti excusat, ignorantia juris non excusat” This legal maxim means “Ignorance of
fact can be excused, but ignorance of the law could not be excused.” Mistake of fact is a defence in
criminal law, as per Sections 76 to 79 of the Indian Penal Code, 1860. However, in Law of Torts,
neither the mistake of fact nor the mistake of law stands as a good defence, generally. A has to pay
Rs. 1,000/-to B. D has to pay Rs. 1,000/-to C. A sends E with money to give it to B. By mistake,
E gives Rs. 1,000/- to C instead of B. A sues C. C can plead that he was mistaken that the amount
was paid by D. C has to refund the amount to A. However, he cannot be guilty for conversion.
7.
Necessity:
[Refer to Topic “Necessity”.]
8. Statutory Liability/Statutory Authority: [Refer to Topic “Statutory Liability/Statutory Authority”.]
9. Judicial Acts: [Refer to Topic “Judicial Acts”.]
10.
(SN)
Parental and Quasi-Parental Authority
The parents and the teachers are empowered to punish the children. However the punishment must
be reasonable and moderate. The Children and Young Persons Act, 1933 (England) prohibits the
serious corporal punishments against the children. If a school boy is seen smoking, the teacher can
beat slightly the boy with a cane. The punishment given to reform the boy is justified. However, the
punishment should not be severe. In Malaysia, a school teacher punished his children (including girls)
standing them in sun for entire day without clothes for not singing the national anthem properly, is held
not reasonable by Malaysian Supreme Court.
11.
(SN)
DILATORY PLEA / DEFENCE
Dilatory Plea/Defence: Dilatory Pleas” are distinguished from pleas to the action, and are defined
to be such as tend merelytodelay orputoff thesuit by questioning the propriety of the remedy, rather
than by denying the injury; whereas pleas to the action are such as dispute the cause of action.” [Law
Lexicon - Ramanath Iyer]
“Dilatory Defence” intended to defeat or delay or pending action without touching the merits of the
case.” Dilatory Pleas are also called the ‘Dilatoriness’.
12.
(SN)
Contributory Negligence
[Refer to Topic “Contributory Negligence”.]
NOTE
While revising Suiatha Law Series Notes, I am also compiling the Bare Acts
for the Criminal Major Acts keeping in view of the students requirements or
the Internal, Problems and Notes. Within a short period,
I would like to the
Criminal Major Acts for Advocates, incorporating the Ingredients, latest
and leading case-laws, etc. which can be useful in the Courts.
GADE VEERA REDDY
46
The Law of Torts
2.B.(b).
VOLENTI NON FIT INJURIA
Q.1. What is meant by ‘Volenti non fit injuria’? Is it a good defence? (AnI., 2012, S.K.U.) (AnI., 2013, S.U.) (AnI., 2014, Burd.U.)
Q.2.
DIFFERENCE BETWEEN ‘VOLENTI’AND ‘SCIENTI’.
(SN) (AnI., 2011, B.U.) (AnI., 2012, A.U.) (AnI., 2013, K.U.)
Q.3. # Hall vs. Brooklands Auto Racing Club (1933) 1 KB 205).
(SN)
Q.4. Phillip Joei Hughes, Austraiian Batman (died on 27-11-2014)
(SN)
Q.5. Wooidrige vs. Summer (1963) 2 QB 43).
(SN)
Q.6.
iiiot vs. Wilkes (1820) 3 B & Aid. 304.
(SN)
Q.7.
DISTINCTION BETWEEN VOLENTI NON FIT INJURIA AND CONTRIBUTORY NEGLIGENCE.
Q.8.
Limitation to Volenti Non Fit Injuria.
(SN) (Anl., 2010, O.U.) (AnI., 2011, A.U.) (AnI., 2012, B.U.) (AnI., 2013, G.U.)
(SN)
Q.9. # Smith vs. Baker (1891 AC 325).
(SN)
Q.10. # Lane vs. Hoiioway (1967) 3 Aii ER 129 CA)
(SN)
Q.11. Rescue Cases.
(SN)
Q.12. # Haynes vs. Harwood (1935) 1 K.B. 146).
(SN)
Q.13. Statutes.
(SN) (Anl., 2009, M.U.) (Anl., 2010, A.U.)
ANSWER:
VOLENTI NON FIT INJURIA
(EQ/SN)
MEANING: “Volenti non fit injuria. ” This legal maxim means: “Damage suffered by consent is not a
cause of action.
w-
EXAMPLES:
(a) The people go to horse-races, cricket matches, motor car/motor cycle races, etc. In these
races, there are risks of injury. One of the horses or motor cars may run into the spectators’
gallery, and may cause injury. The injured person cannot claim compensation, because he himself
invited the risk,
(b) A is drowning in a water-pool. To rescue him, B dived into the water and rescued A. While doing
so, B received injuries. B cannot claim compensation from A. The reason is that B voluntarily
went forward to rescue,
(c) A invites B to dine. B enters into the dining hall. A cannot restrain him, because he himself invited
B. However, if B enters further, i.e., bed room or any other forbidden or private room of A, then B
is guilty,
(d) A is a patient. Doctors tell him that operation is necessary. A consents for operation. Thereafter
he cannot claim compensation or object the doctors from operating. However, if the doctors
perform operation in a negligent manner, then they will be held responsible. (Cine Actress Sri
Devi’s mother’s case: In this Sri Devi admitted her mother in
a hospital in America for operation,
who operated wrongly. The American Courts awarded compensation to the patient. It had become
worldwide news.)
In all these examples, the sufferer invites the probable danger himself. He consents for the danger
which may or may hot occur. Walking on a public rpad is exposed to dangers and accidents. Inviting
them, the public waik and drive the vehicles. All these examples are “Volenti non fit injuria” \Nh\ch
means “where the sufferer is willing, no injury is done”.
IMPORTANT POINTS:
A. DIFFERENCE BETWEEN ‘VOLENTI’AUD ‘SCIENTI’: It is to be observed that the leading word
of the maxim starts is “volenti” but not “scienti” (knowledge). To escape from the tortuous liability,
it is sufficient for the defendant to plead “volentP’ (consent). He need not plead the “scientT’
(knowledge). There are degrees of “scientF’ (knowledge). Even full knowledge that an act is dangerous
does not necessarily render the act tortuous liability, if done, voluntarily.
B. The consent must be free: “Volenti non fit injuria” is operative only when the plaintiff’s consent
is obtained freely. If the plaintiff’s consent is obtained by the defendant by means of fraud, inducement,
undue influence, coercion, etc., then this maxim cannot become a justifiable and good defence to the
defendant.
C.
“Volenti non fit injuria” maxim elucidates two essential legal points:—
(i)
The injured knew that there was a risk in the act.
(ii)
Knowing that there was a risk, he Invited It,
and suffered it.
Unit - II: Parties to the Proceedings
D.
47
PROBLEM:
Giri went to the stadium to watch India-Pakistan cricket match. Whiie he was
seated in the front row, the batsman hit a sixer and the baii came straight and hit Giri oh his shoulder.
Giri suffered a fracture and filed a suit for compensation.
Discuss.
(July, 2002, S.V.U.) (June, 2011, O.U.)
No. The Cricket Club of India could not be held liable, as the plaintiff has scienti
(knowledge) that any ball hit by a batsman may fall speedily in the spectators’ place and may hit any
person or even the player in the ground. For such an act, nobody is held responsible. The players
and the spectators intentionally {volenti) come to see the play. This principle is laid down in the
SOLUTION:
following leading case:—
# Hall vs. Brooklands Auto Racing Club (1933) 1 KB 205)
(Volenti non fit injuria)
Brief Facts: The plaintiff went to see a car racing
of the defendant club.
There was a collision
between two cars of the racing, and one of the two cars was rushed among the spectators. Several
spectators were injured including the plaintiff. The plaintiff sued the defendants for the compensation.
JUDGMENT: The House of Lords gave judgment in favour of the defendants according to the
maxim is “Volenti non fit injuria”.
Phillip Joel Hughes, Australian Batman (died on 27-11-2014)
Phillip Joel Hughes is a world famous example of “Voienti non fit injuria”. Phillip Joel Hughes
(30 November 1988 - 27 November 2014) was an Australian Test and One-Day International (ODI)
cricketer who played domestic cricket for South Australia and Worcestershire. He was a left-handed
opening batsman who played for two seasons with New South Wales before making his Test debut in
2009 at the age of 20.
On 25 November 2014, Hughes was knocked unconscious by a bouncer at the Sydney Cricket
New South Wales Ground bowled by the bowler Sean Abbott Ground, causing a vertebral artery
dissection that led to a subarachnoid haemorrhage. He underwent surgery, was placed into an
induced coma and was in intensive care in a critical condition. He died on 27 November, 2014.
Though detailed discussions went on throughout the world, the bowler was not accused.
E.
Wooldrige vs. Sumner (1963) 2 Q.B. 43)
(Volenti non fit injuria)
The plaintiff was a photographer. He went to photograph a horse racing. He stood at the edge of the
arena. He concentrated on viewing and photographing. One of the horses in racing furiously galloped.
Hearing its gallop, the plaintiff frightened and fell down from the edge of the arena into the arena. He
received serious injuries. On his suit for recovery of damages, the Court rejected his claim according
to this maxim. The Court opined that the plaintiff himself invited the risk, and the defendants were not
held responsible.
F. There was a recent case in Hyderabad. The soldiers were practising rifle shooting at a place
sanctioned by the Government. For the purpose of shooting practice, the place was covered with
walls, hills and also certain notices prohibiting the entrance for outsiders were also exhibited in
conspicuous places. Notice boards were also put. Some people went there for collecting the empty
cartridges, which have copper material. Two boys were killed by the rifle shooting. The soldiers were
not held responsible.
G.
Illot vs. Wilkes (1820) 3 B &Ald. 304)
(Volenti non fit injuria)
The plaintiff trespassed into a place, where the spring guns were installed for a particular purpose. He
knew them and the purpose. He negligently put his feet on a spring gun, and received injuries. The
Court did not award any compensation to him according to this maxim.
48
The Law of Torts
H.
DISTINCTION BETWEEN “VOLENTI NON FIT INJURIA
ff
AND “CONTRIBUTORY NEGLIGENCE”
VOLENTI NON. FIT INJURIA
1.
2.
CONTRIBUTORY NEGLIGENCE
It is a complete justifiable defence. The
defendant is completely excluded.
1.
It is a partial defence. The fault is divided
between the plaintiff and the defendant.
In "Volenti....", the plaintiff knows the risk in the
2.
In contributory negligence, both the parties, i.e.
the plaintiff and defendant are negligent.
3.
Until the incident occurs, both of them do not
know the incident, and its nature and risk. Both
incident, which he is going to face. At the same
time, he takes certain precautionary steps for
his safety also. However, if the defendant is
negligent, the plea of "volenti...."cannot be
helpful to the defendant.
3.
Both the plaintiff and the defendant know the
nature, risk of the incident. Generally the
plaintiff invites the risk voluntarily.
of them do not invite the risk.
LIMITATIONS TO THE MAXIM “VOLENTI NON FIT INJURIA
I.
(SN)
1. HAZARDOUS NATURE OF WORK: In the factories and other hazardous places, where the work
is done with risks, dangers, the owners of them should take extra-ordinary risks. The employees
working with the machinery are working for their livelihood. They know that there are aiways clangers
inherent in their work. However, they work for their families. The colliery workers in the underground
mines also work for the same reason. The employers also know that inherent dangers coupied with
the hazardous nature of work. They shouid take the utmost care with due diiigence and skillness. A
mere taking of care is not sufficient. The foiiowing case-law is a good exampie.
# Smith vs. Baker (1891 AC 325)
(Volenti non fit injuria)
Brief Facts: The piaintiff was an employee. The defendant was an employer engaged in the business
of drilling and cutting rocks. The cranes used to convey the stones from one place to another place,
and cut them in required sizes, and brought them to back. In their way, under the workers worked and
busy in their entrusted works. In one occasion, the crane slipped and a stone was failen on the head
of the piaintiff, who received serious injuries. The plaintiff sued the defendant for compensation. The
defendant pleaded the maxim “volenti...” and contended thatthe plaintiff knew the risk and invited the
risk himself.
JUDGMENT: The House of Lords held that mere knowledge on the part of the plaintiff was not
sufficient. The defendant ought to have taken due care and diiigence. The defendant was held liable.
Principle laid down:
A person willingly undertakes to do work which is intrinsically dangerous,
notwithstanding that care has been taken to make it as little intrinsically dangerous as possible, cannot,
if he suffers, complain that a wrong has been done to him. But if there is negligence on the part of the
employer and he fails in his duty towards the employed, it cannot be said thatthe employee is willing.
The employer should be liable for his negligence.
Breach of Statutory duty: Where there is a statutory duty upon the employer to provide safety
measures for the protection of the employees, he should take all reasonable and skilful measures.
The factories Act, 1948, Environment (Protection) Act, 1986, and some other Acts provide certain
restrictions upon the employers to provide guards for the safety of the employees. If the employer fails
to observe the instructions of the provisions of those Acts, and breaches the statutory duties, he shall
be held liable, even though the workers work under those hazardous and risk works for their livelihood.
If any accident occurs to the employees, the employer cannot seek the defence of "volenti...” Smith
vs. Baker case stands as a good example.
2.
NO CONSENT CAN LEGALISE AN UNLAWFUL ACT:
unlawful act.
(c)
Examples:
(a)
Fighting with naked fists;
No leave or licence can legalise an
(b)
Dual fighting with sharp swords;
kicking matches, etc.
# Lane vs. Holloway (1967) 3 All ER129 CA)
(Consent)
The plaintiff was an old man. He challenged the defendant to fight. The defendant laughed and
refused to fight. The plaintiff came forward and gave a punch to the defendant. In return the defendant
gave a punch, which resulted serious injury to the plaintiff’s eye. Nineteen stitches were stitched on
the injured part of the plaintiff after operation. The Court gave the judgment holding the defendant
liable. The Court ordered the defendant to pay compensation to the plaintiff. The Court opined that
mere consent of the plaintiff cannot legalise the defendant’s illegal act.
49
Unit - II: Parties to the Proceedings
(SN)
RESCUE CASES
3.
In ordinary rescue cases, the defendant succeeds and gets plea of the maxim. But in the cases,
where there is a fault or negligence on the part of the defendant, the maxim ‘Vo/enf/...” cannot be
helpful to him. Cardozo J. observed: “Danger invites rescue. The cry of distress is the summons
to relief. The law does not ignore those reactions in tracing conduct to its consequences. It recognizes
them as normal. The wrong that imperils life is a wrong to the imperiled victim: it is a wrong also to the
rescuer.... The risk of rescue if only it is not wanton, is born of the occasion. The emergency begets
the man. The wrongdoer may not have foreseen the coming of a delivere.r He is accountable as if he
had.
PROBLEM:
The defendant had left the horse and a van unattended on a busy street. A police officer
was on duty inside the police station. He rushed out of the police station by seeing runaway horses
with a van coming down the lane and eventually he stopped them while sustaining injuries. Is the
police officer entitled to recover damages? Comment. (Jan., 2003, G.U.)
SOLUTION: Yes. The defendant is liable to pay compensation to the police officer. This principle
is laid down in the following leading case:—
# Haynes vs. Harwood (1935) 1 K.B. 146)
(Rescue Cases)
Brief Facts:
The defendant’s servant left a two-horse van in a crowded street.
There were no
persons to look after the van. A boy threw a stone on the horses, which began to run. They injured
women and children. Nearby there was a police station, in which the piaintiff was working as a Police
Constable. He rushed to the van, and tried to stop the horses. In doing so, he received injuries. At last
he succeeded in stopping them. He sued the defendant for the compensation. The defendant pleaded
that the plaintiff himself invited the risk, and suffered injuries. He contended that he would not be held
liable underthe principle Vofenf/....”
JUDGMENT: The House of Lords did not accept the application of this maxim in this case, and held
the defendants liable.
PRINCIPLE: If there is no need to take any risk, and the rescuer suffered injury, in such cases, he
cannot recover compensation from the defendant. The rescuer is entitled to get the compensation
only when there was a bare necessity to rescue, and such incidence was occasioned by the negligence
of the defendant. Justice Greer observed:
“The doctrine of the assumption of risk (American
Principle) does not apply where the plaintiff has, under an exigency caused by the defendant's wrongful
misconduct, consciously and deliberately faced a risk, even of death, to rescue another from imminent
danger ofpersonal injury or death, whether the person endangered is one to whom he owes a duty of
protection, as a member of his family, oris a mere stranger to whom he owes no such special duty.”
4. STATUTES: Acts, Rules, Regulations, etc., enacted by the legislatures impose certain restrictions
upon the tort-feasors. These provisions cannot make Vo/enf/....” as a justifiable ground and defence
for the defendant. For example, in England “The Unfair Contract Terms Act, 1977” has been enacted,
imposing strict liability upon the tort-feasors. There are provisions contained in “The Factories Act,
1948”, “The Consumer Protection Act, 1986”, etc., in India imposing liability upon the tort-feasors.
Section 304-A of the Indian Penai Code, 1860 imposes two years punishment with or without fine
for a person who drives the vehicle rashly and negligently. This Section is also applicable in all other
negligent cases, viz., construction, contractual works,
etc.
2350 GOLDEN LEGAL MAXIMS
Compiled : Gade Veera Reddy
It is a useful book to law students. It contains 2350 legal maxims explained in English.
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50
The Law of Torts
2.B.(c).
INEVITABLE ACCIDENT/UNAVOIDABLE ACCIDENT
Q.l.
Write a note on Inevitable Accident.
Q.2.
Inevitable Accident.
(May, 2008, B.U.) (May, 2014, Amb.U.)
(SN) (Feb., 2006, S.V.U.) (Aug., 2012, O.U.)
Q.3. # Stanley vs. Powell (1891) 11 Q.B. 86).
Q.4.
(SN) (Ani., 2011, M.U.) (AnI., 2012, K.U.)
Brown vs. Kendall (1850) 6 Cush. 292).
(SN)
Q.5. # Pardon vs. Harcourt-Rivington (1932) 48 TLR 215).
(SN)
Q.6. National Coal Board vs. Evans (1951) 2 K.B. 861).
(SN)
Q.7.
(SN)
Nitro-Glycerine Case (1872) 15 Wallace. 524).
ANSWER:
INEVITABLE ACCIDENT/UNAVOIDABLE ACCIDENT
(EQ/SN)
MEANING:
Inevitable accident. = Unavoidable accident.
“Inevitable accident” means an accident physically unavoidable. An inevitable accident in point of
law is that which the party charged with the offence could not possibly prevent by the exercise of
ordinary care, caution and skill. It is an event which happens not only without the concurrence of the
will of man, but in spite of all efforts on his part to prevent it.
It is a catastrophe occurring without any intervention
of man.
IMPORTANT POINTS:
A.
Inevitable accident is a good defence for the defendant, if he could not possibly prevent by the
exercise of ordinary Care, caution and skillness.
B.
Pollock said:
‘It does not mean absolutely Inevitable, but it means not avoidable by any such
precautions as a reasonable man, doing such an act then and there, could be expected to take. ”
C.
# Stanley vs. Powell (1891) 11 Q.B. 86)
(Inevitable Accident)
BRIEF FACTS: The defendant was a member of a shooting party. The plaintiff was also a member.
The members of the shooting party were practising shooting at a pheasant. The defendant aimed at
the pheasant and fired it. The pellet from his gun glanced off the bough of a tree and then accidentally
hit the plaintiff. The plaintiff was engaged in carrying cartridges and game forthe party. Due to the hit
of the pellet shoot by the defendant, the plaintiff injured. The plaintiff sued the defendant for
compensation. The defendant pleaded the defence of
JUDGMENT:
“inevitable accident”.
The House of Lords held that the defendant was not liable as his act was covered
under unavoidable accident, and none of the shooting party expected the injury, the pellet which first hit
the tree and later the plaintiff.
PRINCIPLE: People must guard against reasonable probabilities, but they are not bound to guard
against fantastic possibilities.
D.
Brown vs. Kendall (1850) 6 Cush. 292)
(Inevitable Accident)
The dogs were fighting, belonging to the plaintiff and the defendant. The defendant with a good intention
tried to separate them. While he was trying to separate the dogs, the plaintiff came nearer to them.
The defendant did not observe the plaintiff. While he was sincerely trying to separate the dogs, he
accidentally hit the plaintiff in his eye. The House of Lords held that the act of the defendant was an
inevitable accident, and he was not held liable.
Enquire whether there are any gold medals or rewards or incentives in your college/University, and compete to. get
them. There must be highest target. Even if a student fails to obtain a gold medal, at least he can get the distinction
or the first class.
‘Good to think it. Better to take it. Best to act it.
E. PROBLEM: A parked his car by the side of the road inside locked with the glass car doors. B, a
passerby, while watching the dog was injured by a piece of glass that flew into his eye as a result of the
dog biting the glass and breaking it in excitement. B files an action for damages against A. Will he
succeed?
SOLUTION:
(Nov., 2000, S.K.U.)
No. B cannot succeed, because the incident was an inevitable accident. The facts of
the problem are identical with the following case:—
Unit - II: Parties to the Proceedings
51
# Pardon vs. Harcourt-Rivington (1932) 48 TLR 215)
(Inevitable Accident)
Brief Facts: The defendant parked his car in a street and left his dog inside. The dog had always
been quiet and docile. As the plaintiff was walking past the car, the dog, which had been barking and
jumping about in the car, smashed a glass panel, and a splinter entered the plaintiff’s left eye. During
the treatment, the doctors removed his left eye. The plaintiff sued the defendant for damages.
JUDGMENT: The Court gave judgment in favour of the defendant opining that the incident
unavoidable accident, and that there was no negligence in not taking precautions against it.
F.
was
National Coal Board vs. Evans (1951) 2 K.B. 861)
(Inevitable Accident)
I
Brief Facts: The plaintiff’s predecessors had installed an electric cable under the land of a County
Council, without their permission or knowledge. Some years passed. The County Council gave an
excavation contract on their land to the defendants.
While the defendants were carrying the excavation
works, they damaged the electric cable of the plaintiff. The defendants were unaware about the
existence of the electric cables.
i
JUDGMENT: The House of Lords held that the defendants were not liable for the damage caused to
the plaintiff’s electric cable, as it was purely an
G.
inevitable accident. '
Nitro-Glycerine Case (1872) 15 Wallace. 524)
(Inevitable Accident)
Brief Facts:
The defendant was a carrier.
Some wooden cases were entrusted to him for
transportation. Those wooden cases contained nitro-glycerin substance. This fact was not intimated
to the defendant by the consignor. One of the wooden boxes was damaged, and began to leak. The
defendant got the box into his office and opened it with an intention to repack it strongly. The wooden
box containing nitro-glycerin exploded and damaged the plaintiffs building.
JUpGMENT: The House of Lords held that the defendant was not liable, as he did not know the
contents of the wooden box, and it was an inevitable accident.
2.B.(d).
Q.l.
(a)
(b)
VIS MAJOR (ACT OF GOD)
What do you understand by an Act of God? How far is
What is the difference between “inevitable accident”
it a valid defence?
and “Act of God”?
(Jan., 2007, Burd.U.) (May, 2012, B.U.) (May, 2013, K.U.)
Q.2.
Act of God.
Q.3.
Vis Major.
Q.4.
Nichols vs. Marsland (1876) 2 Ex.D.1).
(SN)
Q.5.
Kallulal vs. Hemchand (AIR 1958 M. P. 48).
(SN)
Q.6.
Ramaiinga Nadar vs. Narayana Reddiar (AIR 1971 Ker. 197).
(SN)
Q.7.
DISTINCTION BETWEEN AN INEVITABLE ACCIDENT AND AN ACT OF GOD.
(SN)
(SN) (June, 2001, M.U.) (Jan., 2004, N.U.) (June, 2010, O.U.) (June, 2011, O.U.)
(SN) (May, 2005, G.U.) (Feb., 2006, S.V.U.)
ANSWER:
VIS MAJOR (ACT OF GOD)
(EQ/SN)
Vis Major. = Act of God. = Greater force; irresistible force, e.g. a storm which cannot be prevented.
An extraordinary circumstance, which could not be foreseen, and which could not be guarded against.
Storms, earth quakes, volcanic-eruptions, etc., are called as Acts of God. Example: Hudud Cyclone
effected fourcoastal districts, including Visakhapatnam in October, 2014 in State of Andhra Pradesh.
Halsbury’s Laws of England explained it: “An Act of God in the legal sense may be defined as an
extra-ordinary occurrence of circumstance which could not have been foreseen and which could not
have been guarded against, or, more accurately, as an accident due to a natural cause, directly and
exclusively without human intervention, and which could not have been avoided by any amount of
foresight and pains and care reasonably to be expected of the person sought to be made liable for it,
or who seeks to excuse himself on the ground of it. The occurrence need not be unique, nor need it be
one that happens for the first time; it is enough that it is extraordinary, and such as could not reasonably
be anticipated.... and it must not arise from the act of man. ”
The Law of Torts
52
IMPORTANT POINTS:
A. The Acts of God or Vis Major are good defences. These acts are occasioned by the elementary
forces of nature. They are not connected with the agency of man or other cause. They are also not
under the control of men. “Actus dei nemini facit injuriam.” This legal maxim means “The Law
holds no man responsible for the Act of God”.
Nichols vs. Marsland (1876) 2 Ex.D.1)
B.
(Act of God)
his own land. They were so much strong that they
were able to face the ordinary rains. In one year, the extraordinary rains occurred, and the defendant’s
The defendant constructed some artificial lakes on
they broke. The heavy water washed away four
bridges of the plaintiff. The plaintiff sued the defendant for the recovery of the damages. The defendant
pleaded the defence of Act of God/V/s Major. The Court of Appeal gave the judgment in favour of the
artificial lakes were filled with full of water.
Thus
defendant admitting his argument.
C. Acts of God or vis major are justifiable grounds for the defendant. They do not impose any tortuous
liability upon the defendant.
Kallulal vs. Hemchand (AIR 1958 M. P. 48)
D.
(Act of God)
The Acts of God or vis major must be apparent bn the face of the records. They must be known
and affected largely to entire public. For every small incident, the defendant cannot take the plea of Act
of God. For example, in this case, the defendant constructed a building. It was collapsed and as a ^
result of it, two sons of the plaintiff were dead. Before the day the building collapsed, there was a rain
of 2.66 inches. The defendant pleaded the rain as an Act of God. The Madhya Pradesh High Court did
not accept his plea, and made him liable.
Ramalinga Nadar vs. Narayana Reddiar (AIR 1971 Ker. 197)
E.
(Act of God)
The defendant was having a transport-company. The plaintiff entrusted some goods to the defendant.
Those goods were robbed by some unruly mob. The defendant pleaded it as an Act of God. The
Supreme Court rejected the defendant’ argument, and made him liable.
DISTINCTION BETWEEN AN INEVITABLE ACCIDENT AND AN ACT OF GOD
F.
INEVITABLE ACCIDENT/
ACT OF GOD/V/S MAJOR
UNAVOIDABLE ACCIDENT
1.
Inevitable accidents may occur by reason of the
play of natural forces or by intervention of
human agency or by both.
1.
Acts of God or Vis Major occur without
internvention of human agency. They occur by
reason of the play of natural forces.
2.
Traffic accident, train accidents, building
collapses, etc. are the examples of this
category.
2.
Storms, earth-quakes, volcanic eruptions, etc.
are the examples of Acts of God or Vis Major.
If the utmost care and caution are taken, an
3.
The modern man acquired high scientific
3.
4.
inevitable accident can be prevented or
technology. However he cannot prevent or
controlled.
control the Acts of God/Ws Major.
A very cautious person can anticipate the
4.
The modern technical know-how can notice the
Acts of God before they occur, but they cannot
inevitable accident.
control them.
Their effect is extraordinary. It affects entire
public of that area.
5.
Their effect is limited to one or few persons
concerning to that incident,
5.
6.
it is a branch of Act of God.
6.
It is a genus.
7.
Strict liability can be imposed on the tortious
liability occurred due to inevitable accidents.
7.
Even strict liability can also not be imposed in
cases of torts arising out of Acts of God.
8.
The Courts have discretionary power in
determining the defendant's tortious liability in
8.
The Courts have no discretionary power. They
ought to give their judgment in justifying the
defendant's tortious liability arising out of Act of
case of inevitable accidents.
God.
Unit - II: Parties to the Proceedings
2.B.(e).
Q.1.
Q.2.
Q.3.
53
NECESSITY
Necessitas inducit privilegium quoad Jura privata.
‘Necessity gives a privilege as to private rights.
'Salus populi supreme lex.
(The welfare of the people is the supreme law.)
Q.4. # Olga Tellis vs. Bombay Municipal Corporation (1985) 3 SCC 545).
(SN) (May, 2014, M.U.)
(SN) Dec., 2013, K.U.)
(SN) (May, 2012, G.U.)
(SN) (May, 2010, B.U.)
Q.5. Leigh vs. Giadstone (1909) 26 TLR 139).
Q.6. Kirk vs. Gregory (1876) 1 Ex. D. 56).
(SN)
(SN)
Q.7. Charter vs. Thomas (1891 QB 673).
Q.8.
Necessity. (SN)
(SN)
(SN) (Nov., 2000, S.K.U.) (June, 2005, O.U.) (May, 2008, A.U.) (June, 2014, Amb.U.)
ANSWER:
NECESSITY
(EQ/SN)
MEANING:
Necessitas inducit privilegium quoad jura privata.’’ This legal maxim means:
“Necessity gives a privilege as to private rights. ’’ Where any wrongful acts were done by a defendant
to save his life and property under unavoidable circumstances, he can be excused, it is a good
defence in the criminal law. The same maxim is also helpful in law of torts, and also becomes a
justifiable defence for the tort-feasor, who is compelled to do certain damage to any person or to the
property of any person to prevent greater damage.
Examples:
(a) A’s house is burning. B has come and removed the roof of the house with an intention to stop the
fire, and to prevent it from further spreading. Here B’s act is intended to help A. In doing so, he might
have caused certain damage to A’s house. B’s act is Justifiable under that circumstance,
(b) The ship is over-luggage. There is a danger that the ship is going to be sunk due to the leakage,
etc. The ship captain orders to throw some of the luggage in the sea, so that the ship becomes
lightened and can be saved from the danger of sinking. Here the ship captain’s action is justified,
(c) At the time of the war or other necessities, the State acquires the private properties,
(d) A doctor may conduct an operation in emergency without informing near relatives of the patient to
save the life of the patient. Generally such incidents happen in road accidents.
IMPORTANT POINTS:
A. “Salus populi suprema lex.’’ (The welfare of the people is the supreme law.) This legal
maxim is behind the defence of “necessity”. The ground of necessity is a good and justifiable defence.
B.
# Olga Tellis vs. Bombay Municipal Corporation (1985) 3 SCC 545)
(Pavement Dwellers’ Case)
The Bombay Municipal Corporation took a campaign against the pavement dwellers, and the pavement
dwellers challenged their activity. The Corporation argued that they were trespassers ab initio. The
Supreme Court gave the judgment in favour of the pavement dwellers. Thus this case became popular
as “Pavement Dwellers’ Case”. The Supreme Court held that due to the necessity, they have been
residing on pavement, and it is the duty of the Government to provide the homes for all. The Supreme
Court observed: “Under the law of torts necessity is a plausible defence, which enables a person to
escape liability on the ground that the acts complained of are necessary to prevent greater damage,
inter alia, to him. Here, as elsewhere in the law of torts, a balance has to be struck between competing
sets of values.”
This decision was criticised by the European Justices and Jurisprudents. Lord Denning M.R. said:
“If homelessness were once admitted as a defence to trespass, no one’s house could be safe. — So
the Court must, for the sake of law and order, take a firm stand. They must refuse to admit the plea
of necessity to the hungry and the homeless; and trust that their distress will be relieved by the
charitable and the good.”
C.
Leigh vs. Gladstone (1909) 26 TLR 139)
(Necessity)
The defendant was an officer of a prison. The plaintiff was a prisoner, and she started a hunger strike.
To save her life, the defendant-officer forcibly fed her. The plaintiff sued the defendant for battery. The
Court held that it was not a battery, but it had become necessary to save her life. The defendant was
not held liable.
54
The Law of Torts
D.
Kirk vs. Gregory (1876) 1 Ex. D. 56)
(Necessity)
In doing the acts in necessity, the defendant must take reasonable steps according to the
circumstances. If he was negligent, he shall be held responsible. The plea of necessity could not help
him. In the above case, A died. A’s sister-in-law, the defendant in this case, had removed some
jewellery from the room where the dead body was kept, and placed them in another room, with a good
intention to keep them in safe custody. However, those jewellery were stolen. A’s heirs sued the
defendant for trespass to goods. The Court held that there was no necessity for the defendant to
remove the jewellery from the room (from the dead body room) to another room, and it was a trespass
to the goods, and she was held liable.
Charter vs. Thomas (1891 QB 673)
E.
(Necessity)
There was a fire accident occurred in the plaintiff’s premises. The firemen rushed the spot with all
appliances, and were trying to extinguish it. The defendant had also entered the premises with good
faith, for which the plaintiff objected. The defendant did not heed the words of the plaintiff and helped
the firemen in extinguishing the fire. The plaintiff sued the defendant for trespass. The Court held that
the defendant was liable for the trespass as his interference was not necessary.
JUDICIAL ACTS
Q.1.
Judicial Acts.
(SN)
Q.2.
The Judicial Officers’ Protection Act, 1850.
(SN)
Q.3.
Pattabhi, the Senior Judge, arrested in Bail Scam Case.
(SN)
Q.4.
Period of Limitation.
(SN)
Q.5.
Letang vs. Cooper (1965) 1 QB 232)
(SN)
ANSWER;
JUDICIAL ACTS
(EQ/SN)
From the Judicial First Class Magistrate to the Chief Justice of the Supreme Court, all the Judges,
magistrates, and other judicial officers, who act judicially are protected by the Judicial Officers’
Protection Act, 1850 in India. No Judge, Magistrate, Justice of the Peace, Collector, or any other
person acting judicially, can be sued in any Court for any act done by him in the discharge of his judicial
duty, whether or not within the limits of his jurisdiction, provided that he, at the time, in good faith,
believed himself to have jurisdiction to do the act complained of.
The Judicial Officers’ Protection Act, 1850 does not protect judicial officers from being sued in a
civil or criminal Court in their private capacity. It could protect the acts only in respect of acts done by
them in the discharge of their judicial functions, but not ministerial. If any judicial officer behaves
negligently and willfully and causes harm to any person, he shall be held responsible. No judicial
officer should npt utilise his power for his selfish needs, like in Pattabhi, the Senior Judge was
arrested in Bail Scam Case relating to Gali Janaradhan Reddy Mining Scam case to grant the bail.
The Crores of Bail Scam case was carried on by Yadagiri as a mediator. In such cases. The
Judicial Officers’ Protection Act, 1850 does not protect Pattabhi from being sued in a civil or criminal
Courts.
LAW OF LIMITATION: The aggrieved must file a case for damages caused by any tortuous act of the
defendant. After the period of limitation is over, if he files any suit, it is barred by law. Therefore, if the
period of limitation is completed, the defendant is discharged from the tortuous liability automatically.
In Letang vs. Cooper (1965) 1 QB 232) case, while the plaintiff was sunbathing, the defendant drove
car negligently causing injury to her legs. More than three years after the incident, the plaintiff brought
an action against the defendant for damages for loss and injury caused by the defendant. The Court
dismissed her suit.
Allot at least two to three hours per day to study the subjects of LL.B.
Do practise writing every day. It enhances the writing speed in the examination hall.
Do read and practise English Grammar every day. It
enhances the confidence.
Do practise communication skills every day. It enhances
the confidence.
Unit - II ; Parties to the Proceedings
2.C.
55
JOINT LIABILITY / JOINT TORT-FEASOR
Q.1.
Explain the liability of joint tort feasors. What is the rule of contribution between them?
Q.2.
Examine the liability of joint tort feasors.
Q.3.
Joint Tort-Feasor.
(AnI., 2011, B.U.) (AnI., 2011, A.U.) (Apr., 2012, O.U.) (AnI., 2012, B.U.) (AnI., 2012, G.U.)
Q.4.
Q.5.
(Dec., 2007, O.U.) (May, 2012, A.U.) (Ani., 2012, M.U.) (AnI., 2013, Amb.U.)
(SN) (July, 2008, S.V.U.) (May, 2009, K.U.) (Sept., 2010, N.U.) (June, 2010, O.U.) (June, 2011, O.U.)
(Ani., 2011, B.U.) (Ani., 2012, A.U.) (Sept., 2014, M.U.) (Sept., 2014, O.U.)
The liability of joint tort-feasors is Joint and several. — Explain. (Ani., 2011, K.U.) (Ani., 2012, N.U.) (Ani., 2013, B.U.)
Cutler vs. McPhail (1962) 2 QB 292).
(SN)
Q.6. Shiv Sagar Lai vs. Mata Din (AIR 1949 All. 105).
(SN)
Q.7. Ram Kumar vs. All Hussain (1909 ILR 31 All. 173).
(SN)
Q.8.
CONTRIBUTION.
Q.9.
Merryweather vs. Nixan (1799) 8 TR 186).
(SN)
(SN)
Q.10. INDEMNITY.
(SN)
Q.11. Adamson vs. Jarvis (1827) 4 Bimg. 66).
(SN)
Q.12. Khushalrao vs. Bapurao Ganpat Rao (AIR 1942 Nag. 52).
(SN)
Q.13. Joint Liability.
(SN)
ANSWER:
JOINT LIABILITY / JOINT TORT-FEASOR
(EQ/SN)
MEANING:
Tort-feasor.
=
Independent Tort-feasors. =
wrong-doer; a trespasser.
Two motorists drive their vehicles in opposite directions,
an accident to a pedestrian.
independent tort-feasors.
Joint Tort-feasors.
and cause
These two motorists are
A and B trespassed into the premises of C with a joint
called
intention to
threat C. Here A and B are joint tort-feasors.
Composite tort-feasors.
In England, there is a clear distinction between independent
tort
feasors and joint tort-feasors. In India, there is no such distinction,
and the tort-feasors in both the occasions are called “Composite
tort-feasors.”
IMPORTANT POINTS:
A. The liability of joint tort-feasors is joint and several: The injured plaintiff has a right to sue any
one of them, some of them, or all of them. Examples: Principal and his agent; master and his servant;
partners of a firm, etc. If a partner of the firm does a tortious act in due course of the partnership firm
business, remaining partners are also deemed as joint tort-feasors, and they are held liable to
compensate the plaintiff. If one of the joint tort-feasors pays the compensation, remaining joint tort
feasors shall have to contribute the amount paid by that tort-feasor, and shall have to indemnify him. A
and B are the principal and agent. Agent did a tortuous act against C in due course of agency. C can
sue both of them or either of them. If the Court orders B-agent (one of the joint tort-feasors) to pay
compensation to C, B can recover the proportionate damages from A depending upon the
circumstances.
B.
Cutler vs. McPhail (1962) 2 QB 292)
(Joint Liability)
The defendant wrote a defamatory letter containing contents against the plaintiff, and he sent two
copies - one “The Villager” magazine of Pinner Association; and another to the officer of Pinner
Association. The Villager magazine published the letter. The plaintiff sued the editor of the village, the
officials of Pinner Association and the defendant for defamation. The editor of the village and the
officials of Pinner Association compromised with the plaintiff and published apology in “The Villager”.
On compromise, the editor of the village, and the officials of the Pinner Association were acquitted
from the charge. However, the defendant was not acquitted. The defendant contended that the release
of the other joint tort-feasors amounted to be the release of him. The Queen Bench held that since the
release of the other joint tort-feasors extinguished the cause of action, therefore, it also extinguished
the cause of action against the defendant, and he was released from the liability.
56
The Law of Torts
C.
Shiv Sagar Lai vs. Mata Din (AIR 1949 All. 105)
(Joint Liability)
The plaintiff sued several defendants for defamation, and one of them was a minor. The minor-defendant
requested the plaintiff and made a compromise. The plaintiff and the minor filed a compromise petition
before the Court, and the Court discharged the minor. Remaining defendants pleaded that since one
of the joint tort-feasors discharged, they were also entitled to be discharged from the liability. The
Court held that the intention of the plaintiff seemed to continue. He generously excused the minor joint
tort-feasor and compromised with him. Therefore it did not amount to release of the other joint tort
feasors.
Ram Kumar vs. All Hussain (1909 ILR 31 All. 173)
D.
(Joint Liability)
The defendants twelve in number assaulted the plaintiff. The plaintiff sued them for assault and
defamation, and prayed the Court to grant compensation an amount of Rs. 325/-. While the proceedings
were pending, one of the 12 defendants compromised with the plaintiff and paid Rs. 25/-as his share.
On compromise petition, the Court released that defendant. Remaining 11 defendants urged that
since one of them was released therefore they were also entitled to be released. The Privy Council
held that there was no full satisfaction of the plaintiffs claim, therefore, they were not entitled to be
discharged from their liability.
E. CONTRIBUTION: There were two joint tort-feasors A and B. A paid the compensation to the
plaintiff. Can A recover half of the compensation as the share of B from B? In Merryweather’s case.
As. request was rejected by the Court.
Merryweather vs. Nixan (1799) 8 TR 186)
(Joint Liability)
Merryweather and Nixan were the joint tort-feasors in a case sued by one Starkey. Merryweather paid
840 pounds as damages as a total satisfaction of the claim in the Court. Both of them were discharged
from the tortuous liability by the Court. Later Merryweather demanded Nixan to contribute 420 pounds
towards Nixan’s share, who refused. The Court gave the judgment that Merryweather was not entitled
to get the contribution.
However, this decision was criticized by the jurisprudents and justices for a long time. They thought it
was against the natural principles of justice, equity and good conscience. The rule in Merryweather’s
case was removed by the Law Reform (Married Women and Tortfeasors) Act, 1935 in England.
Thereafter, the joint tort-feasors have become entitled to share the contribution according to the ratio
of their fault. Now the rule is: A and B did a wrong against C. A paid Rs. 10,000/- to C. Both A & B
were discharged from the liability. There was 75% fault on A and 25% fault on B. A can sue B for the
recovery of Rs. 2,500/- from B.
F.
INDEMNITY
(SN)
MEANING: Indemnity means formal legal acceptance of responsibility against damage or loss. It is
the obligation or duty resting on one person to make good any loss or damage another has incurred
while acting at his request or for his benefit. It springs from an express or implied contract.
Adamson vs. Jarvis (1827) 4 Bimg. 66)
(Indemnity)
The defendant handed over certain goods to the plaintiff-an auctioneer. In good faith, the plaintiff sold
those goods, and gave the amount to the defendant after deducting his commission. In fact, those
goods were not belonged to the defendant. The real owner sued the plaintiff and recovered the cost of
the goods from the plaintiff. The plaintiff then sued the defendant. The Court held that the defendant
had to pay compensation to the plaintiff, and the auctioneer-pla intiff was entitled to be indemnified by
the act of the defendant.
The principle of indemnity was recognised even in case “Merryweather v. Nixan.” Where an innocent
joint tort-feasor was compelled to pay the compensation by the wicked joint tort-feasor, what is the
remedy available to the innocent person? In England, the Law Reform Act, 1935 has authorised the
Courts to grant complete indemnity in the cases of joint tort-feasors. In India, there are no such Acts
enacted so far. However, the Courts filled up the lacuna.
Khushalrao vs. Bapurao Ganpat Rao (AIR 1942 Nag. 52)
(Indemnity)
Five partners executed an agreement on 30-8-1925 in favour of the forest owner to cut and take away
the wood. They started cutting the wood, and continued for 16 months. There were certain violations
Unit - II: Parties to the Proceedings
57
in the performance of the contract. The forest owner sued them, and succeeded in getting a decree
against them restraining their activities and also for the compensation. One of the five partners paid
the compensation. Later he demanded remaining partners for the contribution, who refused. He sued
them. The four partners pleaded the rule of Merryweather vs. Nixan’s case as their defence. The Privy
Council gave the judgment in favour of the joint tort-feasor who paid the amount, and he was indemnified
from compensation.
The Privy Council observed; “....the rule in Merryweather vs. Nixan does not apply in India. In India
where one ofjudgment-debtors pays off the decretal debt he has right to contribution from his coJudgment debtors to what extent and in what proportion may depend upon circumstances... It may
perhaps not be irrelevant to ask why by punishing one wicked man, in such a way one should make a
present to the other wicked man, his co-debtor especially if it should appear that the second is really
the responsible person, the ring-leader and so forth.”
Do not open the books after remitting the examination fee or just before the examination,
practising is always bad. Start reading since the beginning of the Semester.
Attend the college regularly.
One-Day Wicket
Contact your lecturers and co-students regularly personally and on phone,
and
discuss the subject.
2.D.
VICARIOUS LIABILITY
2.D.(i).
VICARIOUS LIABILITY
Q.1.
(a)
“As a general rule, a man is liable for his own wrong, but in certain cases the law imposes liability on a
man for the acts and
defaults of another” - Discuss.
(b)
Q.2.
Explain vicarious liability and what are the modes by which vicarious liability arises?
(Jan., 2007, Burd. U.) (May, 2014, Amb. U.)
Explain the Doctrine of Vicarious Liability.
(Feb., 2006, O.U.) (May, 2009, O.U.) (May, 2003, B.U.) (May, 2013, G.U.)
Q.3.
Expiain under what circumstances a master is held liable for the tortious acts of his servants. When is he exempted from such
liability?
(Aug., 2004, O.U.) (Feb., 2004, O.U.) (July, 2009, K.U.) (Jan., 2013, K.U,)
Q.4.
Qui facit per alium tacit per se.
(Jan., 2005, A.U.) (May 2014, N.U.)
ANSWER:
VICARIOUS LIABILITY
(EQ/SN)
MEANING: Generally, a man is liable for his own wrongful acts. He is not liable for the wrongful acts
of others. But under certain circumstances a man may be held liable for the wrongful acts of others.
This principle is popularly known as “Vicarious Liability”.
Examples:
1.
Liability of the State for is servants.
2.
Liability of the principal for the tort of his agent;
3.
Liability of partners for each other’s tort;
4.
Liability of the master for the tort of his servant;
1. Liability of the State for its servants: The State is held responsible for the tortuous acts done by
its servants.
2. Liability of the Principal for the tort of his agent: Where one person authorises another to
commit a tort, the liability for that will be not only of that person who has committed it but also of that
who authorised it. This is based on the general principle “Qui facit per alium facit per se.” (He,
who does an act through another, is deemed in law to do it himself.) This maxim means the act
of an agent is the act of the principal. For any act authorised by the principal and done by the agent both ofthem are liable. Their liability is joint and several.
3. Liability of partners for each other’s tort: The relationship as between the partners is that of
principal and agent. The rules of the law of agency apply in case of their liability also. The liability of
each partner is joint and several. [Refer to Topics of Partnership Act in Contract-ll Notes.]
4. Liability.of the Master for the tort of his servant: If a servant does a wrongful act in the course
of his employment, the master is liable for it. Their liability is joint and several. This principle is based
on the famous maxim “Respondeatsuperior” {Let the principal be held responsible.) The master
is put in the same position as if he had done the act himself. It also derives validity from the maxim
“Qui facit per alium facit per se”. (He, who does an act through another, is deemed in law to
do it himself.) This is because 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. [Refer to Topics
Negligence & Torts against Business Relations/Inducing Breach of Contract.]
The Law of Torts
58
LIABILITY OF THE STATE FOR TORTS /
2.D.(il).
ACT OF STATE ■ DEFENCE OF SOVEREIGN IMMUNITY
Q.1.
Discuss the vicarious iiabiiity of the State for the Torts committed by its servants.
(May, 2008, O.U.) (Aug., 2009, O.U.) (Ani., 2010, S.U.) (Ani., 2011, M.U.) (Ani., 2011, A.U.) (Ani., 2012, N.U.)
(Ani., 2012, M.U.) (Aug., 2012, M.U.) (Ani., 2013, D.U.) (Ani., 2014, Amb.U.)
(May, 2010, B.U.)
Q.2.
Discuss the liability of State for torts committed by servants.
Q.3.
Can a State Government be made responsible for the torts committed by their servants?
Q.4.
Q.5.
and the Government of India.
Discuss the iiabiiity in Tort of tiie State Governments
wrongs committed by its servants in the course of their
What do you understand by “Vicarious Liability”?
(Ani., 2011, S.U.)
To what extent the State
duties?
is responsible for the
(Ani., 2014, D.U.)
Whether State can be made vicariously liable for the torts committed by its
(Aug., 2012, N.U.)
servants?
Q.6.
"The Law relating to the liability of the Government in India for the torts committed by the sen/ants still continues to be unhappy
and uncertain." Comment with reference to the leading of the Supreme Court decisions.
(Nov., 2010, S.V.U.)
Q.7.
Discuss the liability of State for torts, and state the defences, if any, available for State in such cases.
(Feb., 2006, O.U.) (June, 2013, P.U.)
Q.8.
What is the concept of "Rex non potest peccare" (The King can do no wrong) in England and in India.
Q.9.
Explain the defence of sovereign immunity in England
(June, 2008, O.U.)
and India.
(May, 2012, G.U.)
Q.10. "Rex non potest peccare" (The King can do no wrong).
(SN)
Q.11. King can do no wrong.
(SN) (May, 2013, A.U.)
Q.12. Act of State.
(SN) (Apr., 2012, O.U.)
Q.13. Buron vs. Denman (1948) 2 Ex. 167).
(SN)
Q.14. Hardial Singh vs. State of Pepsu (AIR 1960 Punj. 644).
(SN)
Q.15. State of Saurashtra vs. Memon Haji Ismail (AIR 1959 SC 1383).
(SN)
Q.16. DEFENCES OF SOVEREIGN IMMUNITY.
(SN)
Q.17. DISTINCTION BETWEEN “SOVEREIGN FUNCTIONS” AND “NON-SOVEREIGN FUNCTIONS”.
(SN) (Dec., 2012, K.U.)
Q.18. Madrazo vs. Willes (3 B&Ald. 353).
(SN)
Q.19. Walker vs. Baird (1892 AC 491).
(SN)
Q.20. Morgan vs. Sea ward (2M&W 544).
(SN)
Q.21. PRESENT POSITION IN ENGLAND.
(SN)
Q.22. SOVEREIGN IMMUNITY - POSITION IN INDIA.
(SN)
Q.23. Peninsular and Oriental Steam Navigation Co. vs. Secretary of State (1861) 5 Bom. HCR App.1).
(SN)
Q.24. SOVEREIGN IMMUNITY-AFTER THE COMMENCEMENT OF
(SN)
THE CONSTITUTION.
Q.25. # State of Rajasthan vs. Vidhyawati (AIR 1962 SC 933).
(SN)
Q.26. Kasturi Lai Balia Ram Jain (Appellant) vs. The State of U.P. (Respondent) (AIR 1965 SC 1039).
(SN)
Q.27. # State of Gujarat vs. Memon Mahomed Haji Hasan (AIR 1967 SC 1885).
(SN)
Q.28. # Smt. B.K.D. Patil vs. State of Mysore (AIR 1977 SC 1749).
(SN)
Q.29. Thangarajan vs. Union of India (AIR 1975 Mad 32).
(SN)
ANSWER:.
LIABILITY OF THE STATE FOR TORTS / ACT OF STATE DEFENCE OF SOVEREIGN IMMUNITY
(EQ/SNs)
MEANING: “Act of State” means an act of the executive, i.e. the sovereign power of a country that
cannot be challenged, controlled or interfered with by municipal courts. Its sanction is not that of law,
but that of sovereign power and, whatever it may be, municipal courts must accept it as it is, without
question.
Wade and Philips explained: “Act of State means an act of the executive as a matter of policy
performed in the course of its relations with another State, including its relations with the subjects of
that State, unless they are temporarily within the allegiance of the Crown.”
Hidayatullah J. observed: “An Act of State is an exercise of power against an alien and neither
intended nor purporting to be legally founded. A defence of this kind does not seek to Justify the action
with reference to the law but questions the veryjuhsdiction of the Courts to pronounce upon the legality
orJustice of the action. ”
IMPORTANT POINTS:
A
Buron vs. Denman (1948) 2 Ex. 167)
(Act of the State)
BRIEF FACTS: Denman was a captain in the British Navy. The plaintiff-Buron owned slave barracoons
in the West Coast of Africa, which was outside British Dominion. Captain Denman-the defendant
attacked the plaintiff’s barracoons, and released slaves and burnt the slave barracoons. The defendant’s
Unit - II: Parties to the Proceedings
59
acts were ratified by the British Government later. The plaintiff brought a suit against Captain Denman
Denman pleaded that it was an Act of State, and ratified by the British Government, and therefore he
could not be held liable for the payment of compensation to the plaintiff.
JUDGMENT: The House of Lords gave the judgment in favour of the defendant, holding that his act
was as an Act of State.
PRINCIPLE: If an act is done for the State, the defendant is not held liable for any tortuous liability.
B.
Hardial Singh vs. State of Pepsu (AIR 1960 Punj. 644)
(Act of the State)
Before the independence, the Ruler of Nabha granted “Malwa House” to the appellant-Hardial Singh.
Nabha State was merged in Patiala and East Punjab States’ Union (PEPSU) on 20-8-1948. In 1952,
the new State repudiated the grant which was made before the independence. The appellant challenged
it. The State pleaded the defence of “Act of State.” The Punjab High Court rejected the plea of the
State, and gave the judgment in favour of the appellant-Hardial Singh.
C.
State of Saurashtra vs. Memon Haji Ismail (AIR 1959 SC 1383)
(Act of the State)
Brief Facts: After passing the Independence of India Act, 1947, the State of Junagadh became a
sovereign State. The Nawab of Junagadh did not like to accede in India. He requested Pakistan forthe
help. He could not get help from Pakistan, and he fled away to Pakistan. Meanwhile, a referendum
was held, and the State of Junagadh was acceded in the Indian Union. On 17-11-1941, Nawab of
Junagadh granted certain property to Abu Panch. Abu Panch sold the property in the same year to the
Respondent for Rs. 30,000/-. On 18-10-1947, the Administrators of Junagadh State issued an order
stating that the gift given to Abu Panch by Nawab was invalid, and subsequently the sale by Abu Panch
was also invalid, and then seized the property.
JUDGMENT: Between November 9, 1947 and January 20, 1949, the State of Junagadh was not a
part of India, and the citizens of Dominion of Junagarh were aliens to Indian Union, during this period.
Therefore, the action of the administrator can be held as an Act of State, even though it was arbitrary
and not justifiable in the Municipal courts. Des J. of the Supreme Court observed: “In cases where the
acquisition of new territory is continuous process, distinction must be made between de facto exercise
of control and de jure resumption of sovereignty.....As long as Junagadh State continued as such,
there was no such succession and even though the Dominion of India took over the administration of
Junagadh (on 9-11-1947) and exercised control therein, it did not assume de jure sovereignty over it.
Therefore, the act of State did not terminate till January 20,1949, when the Dominion of India assumed
de jure sovereignty over Junagadh by its integration into the United States of Saurashtra.”
DEFENCES OF SOVEREIGN IMMUNITY
(SN)
MEANING: “Rex non potest peccare” (The King can do no wrong), an important legal maxim,
evolved in England. The concept of this legal maxim gives immunity ot the King from civil and criminal
liabilities. It is being honoured in England from the last several centuries, and the same is continued till
today, with certain variations.
SOVEREIGN IMMUNITY - POSITION IN ENGLAND
(SN)
“Rex non potest peccare” (The King can do no wrong) is an ancient and basic principle of the
English Common Law. The English people think that their Crown is incapable not only of doing wrong,
but even of thinking wrong. The meaning of this legal maxim is multi-faceted:—
(i)
The sovereign, individually and personally and also in his natural capacity as the King cannot be
sued by any earthly power or cannot be emanated to any jurisdiction,
(ii) The public affairs are not to be imputed to the King, so as to render him personally answerable for
it to his people,
(ill) The prerogative power of the Crown does not injure anybody in the country,
(iv) The King cannot sanction any act forbidden by
law.
In the fourth meaning, the King has to honour the law. In making the laws or issuing Writs, he is
bound by the law. Therefore, he is under the law, but not above the law. In this sense, it can be
understood that he is equal with his subjects. If the King personally command A-a servant to do an
unlawful act, the offence done by A is not indemnified. If the King obtains loans from individuals for his
personal needs, those individuals can sue the King for the recovery of the money. Thereby the
defence of sovereign immunity does not indemnify the King.
60
The Law of Torts
Vicarious Liability: The maxims “Qui facitper alium facitperse” and “Respondeat Superior”
do not apply to the King, if his servants or agents commit a tort. Here there is a difference. What the
sovereign does personally, the law presumes will not be wrong. What he does by command to his
servants or agents cannot be wrong in him. For, if the command is unlawful, it is in law no command
at all. In such circumstance, the servant or agent is responsible for the said unlawful act, but not the
King.
While doing an Act of the State, if any minister does any wrongful act, he shall be held responsible.
He cannot plead the defence of sovereign immunity. Therefore, the agents of the sovereign are held
liable for their civil and criminal faults, if such acts do harm to any person.
Distinction between “Sovereign Functions” and “Non-Sovereign Functions”:
The English
Law clearly made distinction between the “Sovereign Functions” and “Non-Sovereign Functions”. While
performing a sovereign function, if any servant or agent of the Crown does any tortuous act or breach
of the contract, such agent or servant is not held liable. In such cases, the Doctrine of Defence to
Sovereign Immunity applies.
While performing a non-sovereign function, if any servant or agent of the Crown does any tortuous act
or breach of the contract, such agent or servant is held liable. In such cases, the Doctrine of defence
to Sovereign Immunity does not apply.
How can an act be considered as a “Sovereign Function” or a “Non-Sovereign Function”? The
answer depends upon the circumstances of the cases. The facts of each case differ from others.
For Example, there are certain disturbances in a locality. The highest officer issues curfew orders and
warns the people not to come into the streets. The police are patrolling. Agroup of agitators throw the
stones against the police. A police constable fires in the air. The agitators do not fear. Moreover they
come forward to beat the police constable. The police constable fires at the group and one is wounded
or died. The police constable is not held liable, as the performance of firing is done here as a part of
“Sovereign Function”.
In Madrazo vs. Willes (3 B&Ald. 353) case, the Captain of a British man-of-war destroyed a Spanish
trading ship wrongfully. While destroying the Spanish ship without superior orders he believed that he
should destroy that trading ship as a part of the performance of his duty. He pleaded the defence of
Sovereign Immunity and Act of the State. The Court did not accept his argument, and ordered him to
pay the compensation to the defendant.
In Walker vs. Baird (1892 AC 491) case, the Captain of a British man-of-war destroyed a lobster
factory situated on the coast of Newfoundland of France. The Court held him liable to pay compensation
to the owners of the factory and held that he could not justify an interference with the private rights, and
also he was not authorised by the legislature underthe provisions of a treaty made between the Crown
and the French Government.
Writs or Grants: The King should issues the Grants or Writs according to the Law. If any grant or
writ issued by the King is not according to the law, such grant or writ is considered as void. In Morgan
vs. Sea ward (2M&W 544), Park B. observed; “That a false suggestion of the grantee avoids an
ordinary grant of lands or tenements from the Crown, is a maxim of the common law, and such a grant
is void, not against the Crown merely, but in a suit against a third person. ”
CONTRACTS: All the Governmental contracts are executed on the name of the Crown. Servants of
the Crown, civil as well as military, enter into the contracts with private persons on several works and
contracts. Unless a servant or agent of the Crown has expressly agreed to be personally liable, a
Crown servant or agent is not answerable for breaches of contracts made by him in his public capacity,
nor does he impliedly warrant his authority to make them. In such case, the remedy for the private
person is to submit a “Petition of Right”, but not by instituting action against the agent. The reason
is that the Government revenues cannot be reached by a suit against a public officer.
PRESENT POSITION IN ENGLAND: The Rule of Immunity in favour of the Crown in England is
based on the Common Law. However, the rigor of this rule has slowly disappeared from the land of its
birth. The concept of the “Rule of Law” has diluted the concept of the “Defence of Sovereign
Immunity”, as the Constitutional rights to the citizens have been strengthening century after century,
and particularly in the twentieth century. According to the Rule of Law prevailing in England, the daughter
of Tony Blain, the Prime Minister of England, has been convicted for rash driving. One of the Princes
of England has been convicted by the England Courts underthe Criminal Proceedings during 2001.
The daughter of George Bush, the American President, was convicted for drinking alcohol. You might
have read these news items in the newspapers.
This spirit of Rule of Law is not followed in India. If a traffic constable stops a vehicle of a small party
leader or a councillor, when the red signal is on, that leader or councillor beats that constable. If the
Unit - II: Parties to the Proceedings
61
traffic constable writes a challana against any party worker, the M.L.A. or M.P. of that party calls for
“Bandh” as a protest. Thus the police officers also do not want to take unnecessary initiation to file
the cases. This is the position in India.
SOVEREIGN IMMUNITY - POSITION IN INDIA
BEFORE THE COMMENCEMENT OF THE CONSTITUTION: The English
(SN)
Law with regard to the
Defence of Sovereign Immunity for tortuous acts of its servants was partly accepted In India during the
British Rule.
Do practise writing every day.
It enhances the writing
Do read and practise Engiish Grammar every day.
Do practise communication skiiis every day.
It
speed in the examination haii.
enhances the confidence.
It enhances
the confidence.
Peninsular and Oriental Steam Navigation Co. vs.
Secretary of State (1861)5 Bom. HCRApp.1)
(SOVEREIGN IMMUNITY)
Brief Facts: This is the first leading case on the Defence of Sovereign Immunity in India. A servant.
of the plaintiff-company was driving a carriage belonging to the company. The carriage was passing
on the road near the Government Dockyard. At that time, some of the Government servants were
working at a top of the building of the Dockyard. One of them negligently dropped an iron piece on the
road. Due to that rod, one of the horses was injured. The plaintiff-company sued the Government
claiming for damages of Rs. 350/-. The Secretary of State-Defendant pleaded the defence of sovereign
immunity, and argued that the suit was not maintainable.
JUDGMENT: The High Court at Calcutta gave judgment in favour of the plaintiff ordering the defendant
to pay the damages to the plaintiff.
PRINCIPLES: (I), There is a great and clear distinction between acts done in the exercise of what
are usually termed as sovereign powers, and acts done in the conduct of undertakings which might
be carried on by private individuals without having such powers delegated to them,
(ii) The Secretary of State is liable for damages occasioned by the negligence of servants in the
service of Government, if the negligence is such as would render an ordinary employer liable,
(iii) The Court classifies the acts of the Secretary of the State into two classes, viz., (i) Sovereign
acts; and (ii) Non-Sovereign acts. In the former cases, the defendant is not held liable according to
the maxim ‘Res non potest’ peccare, whereas in the latter cases, he is liable according to the maxim
‘Respondeat Superior’.
AFTER THE COMMENCEMENT OF THE CONSTITUTION
The framers of the Constitution incorporated Article 300 in the Constitution, which states that the
Government of India may sue and be sued by name of the Union of India and the Government of a
State may sue or be sued by Union of India or State, etc. The ruling principle of Article 300 is that
Government is not liable for torts of its employees committed in the course of performance of sovereign
functions. The theoretical doctrine as per the ruling principle is still adhered. But it is being applied in
a liberal manner. Except in few cases, in majority of cases, the Indian Courts interpret the “Defence
of Sovereign Immunity” very narrowly and try to give legal remedy to the aggrieved persons. It can
be observed in the following cases:—
# State of Rajasthan vs. Vidhyawati (AIR 1962 SC 933)
(SOVEREIGN IMMUNITY)
Brief Facts: A jeep was maintained and used by the District Collector. The jeep driver drove the jeep
in a rash and negligent manner and caused an accident resulted the death of the husband of the
plaintiff/respondent. The widow sued the State Government for damages. The State Government
pleaded the Defence of Sovereign Immunity.
JUDGMENT: The Supreme Court gave the judgment in favour of the widow and ordered the appellant/
defendant, i.e., the State of Rajasthan to pay damages to her.
PRINCIPLES: (i) The State of Rajasthan cannot escape liability so long as there is nothing to show
that the predecessor, the Union of Rajasthan, as it was brought into existence by the last stage of
Integration, just before the coming into effect of the Constitution, was not liable by any rule of positive
enactment or by the Common Law.
(ii) When the Rule of Immunity in favour of the Crown based on the Common Law in the United
Kingdom, has disappeared from the land of its birth, there is no legal warrant for holding that it has any
validity in this country, particularly afterthe Constitution and therefore, it would be only recognising the
The Law of Torts
62
old established rule, going back to more than 100 years at least if the vicarious liability of the State is
upheld by the Court,
(iii) Article 300 of the Constitution itself has saved the right of Pariiament or the Legislature of a State
to enact such law as it may think fit and proper in this behalf. But so long as the Legislature has not
expressed its intention to the contrary, it must be held that the law is, what it has been ever since the
days of the East India Company.
PRINCIPLES LAID DOWN IN # Kasturi Lai Balia Ram Jain fAppellantt vs. The State of U.P.
(Respondent) lAIR 1965 SC 1039): (i) There is a material distinction between acts committed by the
servants employed by the State where such acts are preferable to the exercise of sovereign powers
delegated to public servants, and acts committed by public servants which are not referable to the
delegation of any sovereign powers. If a tortuous act is committed by a public servant and it gives rise
to a claim for damages, the question to ask is: “Was the tortuous act committed by the public servant
in discharge of statutory functions which are referred to, and ultimately based on the delegation of the
sovereign powers of the State to such public servant?” If the answer is in the affirmative, the action
for damages for loss caused by such tortuous act will not lie. On the other hand, if the tortuous act has
been committed by a public servant in discharge of duties assigned to him not by virtue of the delegation
of any sovereign power, and action for damages would lie. The act of the public servant committed by
him during the course of his employment is, in this category of cases, an act of a servant who might
have been employed by a private individual for the same purpose. This distinction which is clear and
precise in law, is sometimes not borne in mind in discussing questions of the State’s liability arising
from tortuous acts committed by public servants.
(ii) The significance and importance of making such a distinction has to be realised particularly at the
present time when, in pursuit of their welfare ideal, the Government of the States as well as the
Government of India naturally and legitimately enter into many commercial and other undertakings and
activities which have no relation with the traditional concept of Governmental activities in which the
exercise of sovereign power is involved. It is necessary to limit the area of these affairs of the State in
relation to the exercise of sovereign power, so that if acts are committed by Government employees in
relation to their activities which may be conveniently described as “non-governmental” or “non
sovereign”, citizens who have a cause of action for damages should not be precluded from making
their claim against the State. That is the basis on which the area of the State immunity against such
claims must be limited. [For brief facts and judgment, refer to Topic “Vicarious Liability of the
State”.]
# State of Gujarat vs. Memon Mahomed Haji Hasan (AIR 1967 SC 1885)
(SOVEREIGN IMMUNITY)
Brief Facts: The goods of the respondent were seized by the Customs Authorities under the Customs
Act, 1962 apprehending that those were smuggled goods. The respondent filed an appeal. During the
pendency of the appeal, the Customs authorities sold away those goods in a public auction after
obtaining an Order from the Magistrate. The appeal of the respondent was allowed. The appellate
Court ordered the customs authorities to return the goods. As they already sold them, they failed to
return. The respondent sued them for damages. The State Government pleaded the defence of
sovereign immunity.
JUDGMENT: The Supreme Court gave judgment in favour of the respondent, and ordered the state
Government to pay cornpensation to the respondent.
PRINCIPLES:
(i)
Just as a finder of property has to
return it when its owner is found and
demands it, so the State Government was bound to return the said property once it was found that the
seizure and confiscation were not sustainable. There being thus a legal obligation to preserve the
property intact and also the obligation to take reasonable care of it so as to enable the Government to
return it in the same condition in which it was seized,
(ii) The position of the State Government is that of a bailee in ordinary case.
# Smt B.K.D. Patil vs. State of Mysore (AIR 1977 SC 1749)
(SOVEREIGN IMMUNITY)
Brief Facts: Certain ornaments of the plaintiff-appellant were stolen. The police recovered them and
produced before the criminal Court. The Court gave those ornaments to one of the public authorities
for safe custody until the final disposal of the proceedings. The public authority misappropriated the
ornaments. After disposal of the proceedings, the plaintiff made an application to the trial Court for the
return of her ornaments, but the said authority failed to return the ornaments. Following the ruling in
Kasturilal’s case, the trial Court held that under the defence of sovereign immunity the act of public
authority could not be questioned and she was not entitled for the return of ornaments. Finally she
reached to the Apex Court.
h
K,
- II; Parties to the Proceedings
^®®“P'^'^®C™rtgavejudgmentinfavouroftheappellant
to return the ornaments or to pay the cash equivalent.
63
and ordered the respondent
not
VICARIOUS LIABILITY OF A MASTER FOR HIS
SERVANrS TORTUOUS ACT
Q.1. Examine the “Doctrine of Common Employment”. (SN)
Q.2.
What is “in the
course of employment”?
Q.3. Explain the law relating to the liability of the
master for the acts of the servant.
Q.4.
Respondeat Superior.
Q.5.
Lloyd vs. Grace Smith and Co.
Q.6.
‘Qui per alium facit per seipsum facere videtur."
1n the course of employment”.
Q.7.
(May, 2006, B.U.) (May,'*2010, A.U.) (May, 2013, K.U.)
Discuss with the help of decided case law.
(Jan., 2005, A.U.) (AnI., 2011, S.U.) (AnI., 2013,
(AnI., 2011, N.U.) (AnI., 2012, A.U.)
(SN) (AnI., 2010, S.V.U.)
Q.8. Morris vs. C.W. Martin & Sons Ltd. (1966) 1 QB
(SN) (May, 2006, B.U.) (AnI., 2011, G.U.)
(SN)
(SN)
716).
(SN)
Q.9. Bayley vs. Manchester, Sheffield and Lincolnshire Railway (1873 LR 8 CP 148).
Q.10. Lending a servant to another
(SN)
person.
Q.11. # Mersey Docks & Harbour Board
(SN)
vs. Coggins & Griffiths (Liverpool) Ltd. (1947 A.C.
Q.12. # Cassidy vs. Ministry of Health (1951) 2 KB
1).
(SN) (AnI., 2011, K.U.) (AnI., 2012, K.U.)
343).
(SN)
Q.13. When the employer is not held liable?
(SN)
Q.14. Williams vs. Jones (1885) 3 H&C 602).
(SN)
Q.15. Century Ins. Co. vs. Northern Ireland Road Transport Board (1942 (1) AER 491 HL).
Q.16. # State Bank of India vs. Shyama Devi (AIR 1978, SC 1263).
Q.17. # Beard vs. London General Omnibus Co. (1900) 2 QB 530).
(SN)
(SN)
(SN)
Q.18. Baldeo Raj vs. Deowatt (AIR1976 MP 164).
(SN)
Q.19. Independent contractor.
(SN)
Q.20. Giving lift to an unauthorised third party.
Q.21. # Conway vs. George Wimpey and Co. Ltd. (1951) 2
Q.22. Premwati vs. State of Rajasthan (AIR 1977 Raj. 116).
Q.23. Prithi Singh vs. Binda Ram (AIR 1987 P & H 56).
(SN)
K.B. 266).
(SN)
(SN)
(SN)
Q.24. THE DOCTRINE OF COMMON EMPLOYMENT.
Q.25. Priestley vs. Fowler (1837), Hutchinston vs.
(SN)
York (1850), New Castle and Berwick Rail Co. (1850)
Q.26. The Law Reform (Personal Injuries) Act 1948, in the United
Q.27. Wilson and Clyde Coal Co. vs. English (1938 AC 57).
Q.28. The scope of the Doctrine of Common Employment in India.
Cases.
Kingdom.
(SN)
(SN)
(SN)
(SN)
ANSWER:
VICARIOUS LIABILITY OF A MASTER FOR HIS VICARIOUS LIABILITY
A MASTER FOR HIS SERVANT’S TORTUOUS ACT
OF
MEANING:
Servant = Any person who works for another for a salary is a servant in
Jr
Amb.U.)
(EQ/SN)
the eye of the law.
or does service voluntarily or involuntarily a
person who is ernployed for another for menial offices or for other labou,r and is subject to his command-
JboZZe^helpin’"''"
^
The Law of Torts
64
Master = One who exercises personal authority over another, is the master and that other is his
servant.
at any moment may direct,
who not only prescribes the end ofhis work, but directs, or work.
Pollock: “One
the means also, or, as
it has been put, retains the power of controlling the
Vicarious liabiiity of a master: A master is vicariously held liable for any tortuous act ^one by his
upon the master, the tortuous
servant in the course of his employment. To impose this vicarious liability
act must incorporate the following two essential elements:
The tortuous act must be committed by the servant; and
employment.
(ii) The tortuous act must be committed in the course of
(i)
PROBLEM: A, managing clerk of Lawyers’ firm, fraudulently got client B to sign
executing the sale of her properties to him. A made her to believe that she sign^ed
realising the fraud, B sued la\wyer’s firm which pleaded
her wH. A
ignorance of As fraud. Is ^rm hable ^ ^
SOLUTION: A did the fraud during the course of employment of Lawyers’ firm.
Hence the Lawyers^
firm is held responsible. The facts of the problem are identical with the following leading and prescribed
case:—
# Lloyd vs. Grace, Smith & Co. (1912 AC 716)
(Vicarious Liability - Master)
Brief Facts: Lloyd was an owner of two cottages. She was not satisfied with the income derived
from them. She approached the defendant Solicitors Company and sought their help in disposing
them. The managing clerk of the defendant company approached her at her residence
and obtained
her signatures saying that those were sale deeds. She having good faith on the defendant company
signed on those papers. In fact, those papers were not sale deeds, but gift deeds in favour of the
Managing Clerk. He sold two cottages and misappropriated the amount.
Lloyd sued the defendant
company for damages.
JUDGMENT' The House of Lords held that the clerk acted solely for his personal benefit and without
the knowledge of his principal, but he did the fraud during the employment, and in the course of h^^s
employment. Since the clerk was acting in the course of his apparent or ostensible authority, the
master was liable for the fraud.
OBJECT' The object of imposing vicarious liability upon the master lies in the legal maxim Quiper
alium facit per seipsum facere videtur.” (He, who does an act through another, is deemed in
law to do it himself.) In other words it can be said: “Respondeat superior (Let the principal be
held responsible.) The main reason is that the master has the financial capacity. The servant works
for his livelihood. Whatever performance done by the servant during his employment, the benefit or
loss goes to his employer, not to the pocket of employee.
The master is the real beneficiary of the
works or services of the employee. Therefore, law favours to impose the vicarious liability upon the
employer. This principle is based on equity, justice and good conscience.
IMPORTANT POINTS:
A. “In the course of employment”: The vicarious liability can be imposed upon the employer safely
only when the employee did the tortuous act in the course of his employment. A is the master, and B
is the servant. B works at master’s shop from 10-00 a.m. to 8-00 p.m. Thereafter he goes to his
house. Afterthe working hours, there is no relationship between the master and worker. If B does any
tortuous act after the working hours, can A be held liable? We can say “No”.
Of course, if A instructs him certain work even after the working hours, or sends him to any other place
on his work during that period, if B commits any tortuous act, then A is held liable, treating those acts
in the course of employment. Justice Subba Rao remarked that the principle of liability of a master
the
for the torts of his servant is a great principle of social justice and courts need no longer interpret
course of employment. Justice Subba Rao’s views seemed to be correct.
managing clerk approached Lloyd out of working hours, and deceived
In the above leading case,
her. The House of Lords
considered his act to be the vicarious liability of his masters. From the beginning, the Courts consider
this point on a broader sense, not in a narrower sense.
Morris vs. C.W. Martin & Sons Ltd. (1966) 1 QB 716)
B.
(Vicarious Liability - Master)
Four coats were entrusted by the plaintiff to the defendant company for cleaning. The defendant
who stole them. The Court held that the
employee, who stole the coats during the employment
company handed over them to their employee Morrisey,
defendant company was liable for the theft of its
and in the course of the employment.
Unit - II: Parties to the Proceedings
c.
65
Bayley ys. Manchester, Sheffield and Lincolnshire Raiiway (1873 LR 8 CP 148)
(Vicarious Liability - Master)
The defendant railway company appointed certain persons to facilitate the passengers to get their
correct train. The plaintiff purchased ticket and sat in a correct train to the destination to which he
wanted to go. The employee of the defendant company had mistaken that the plaintiff was going in a
wrong train, and asked him to come down. The plaintiff refused. The employee pulled him. As a
result, the plaintiff received injuries. The House of Lords held it was the mistake of employee, who did
tortuous act against the plaintiff, in the course of his employment, therefore, the defendant company
was liable.
D.
Lending a servant to another person:
others. A is the owner of a car. B is the driver. C
In peculiar circumstances one lends his servant to
takes A’s car and driver on hire for one month. During
this period, B commits an accident to D. Who is the real owner of B? Whom D shall have to sue?
This is answered in “Mersey Docks” Case that the owner of the Car is liable to pay damages to the
injured/aggrieved person.
PROBLEM: A, the driver of a petrol lorry, employed by the owner of the lorry B. While transferring
petrol from the lorry to an underground tank in the C’s petrol bunk struck a match to light a cigarette
and threw it on the floor and thereby caused a conflagration and an explosion took place and damaged
C’s petrol bunk and his property. Discuss about the liability of A and B. (Feb., 2006, S.V.U.)
SOLUTION: B is liable to pay the damages to C. The facts in the above Problem are identical with
the following case:—
# Mersey Docks & Harbour Board vs. Coggins & Griffiths (Liverpool) Ltd. (1947 A.C. 1)
(Vicarious Liability - Master)
Brief Facts: The appellants-Mersey Docks & Harbour Board had many mobile cranes and skilled
drivers/operators to operate them. They used to give them on hire. The defendants-Coggins & Griffiths
(Liverpool) Ltd. hired one rnobile crane including the operatorto load a ship. While loading the ship,
due to the negligence of the operator/driver, X was injured. The question arose upon whom the vicarious
liability should be imposed. The trial Court gave the judgment that Coggins & Griffiths (Liverpool) Ltd .
were liable.
JUDGMENT:
The House of Lords reversed the decision
Docks & Harbour Board were the real owners of the crane
of the lower Court, and held that Mersey
and driver, thus they were liable to be held
under vicarious liability.
Lord Porter said: “Many factors have bearing on the result. Who is paymaster, who can dismiss,
how long the alternative service lasts, what machinery is employed, have all to be kept in mind... But
the ultimate question is not what specific orders, or whether any specific orders, were given but who is
entitled to give the orders as to how the work should be done. ”
Principle:
It is presumed that ‘the power of control’ shall be vested in the general employer only,
not in the hands of the hirer.
E. Hospital Cases: There were days in which the doctors maintained hospitals under single
proprietorship and management. Now-a-days the super specialty hospitals have been in existence. A
non-professional businessman can establish a super specialty hospital appointing the skilful doctors.
Even though a doctor, surgeon, etc. are specialists in their profession, but they are treated as the
employees for the purpose of vicarious liability.
# Cassidy vs. Ministry of Health (1951) 2 KB 343)
(Vicarious Liability - Master)
Brief Facts: The plaintiff was suffering from a contraction of third and fourth fingers of his left hand.
He admitted in the defendant’s hospital. A surgeon of it operated with the help of other staff. After the
operation, the surgeon and the staff bandaged the plaintiff’s hand and forearm to a splint. They remained
so for fourteen days. During these fourteen days, the plaintiff had been reporting the staff and doctors
that he could not bear the pain. Nobody had taken interest or action to reduce his pain, except the
administration of sedatives. After 14 days, when bandages were removed, it was found that all four
fingers of the plaintiff’s hand were stiff and that the hand was practically useless. The plaintiff sued the
hospital authorities.
JUDGMENT: The House of Lords held that the hospital authorities were responsible for the acts of
their surgeon and staff, and for the damage caused to the plaintiff.
Principles: 1. A hospital authority itself owes a duty to the patients which cannot be delegated and the
authority is liable both primarily and vicariously for the negligence of its staff.
The Law of Torts
66
2. This principle of vicarious liability of the hospital authorities also extends to the visiting consultants,
surgeons, etc. even though they are not its permanent staff.
3. Denning L.J. said: ‘‘...It is no answer for them (the hospital authorities) to say that their staff is
professional men and women who do not tolerate any interference by their lay masters in the way they
do their work. The doctor who treats a patient in the Walton Hospital can say equally with the ship’s
captain who sails his ship from Liverpool, and with the crane driver who works his crane in the docks,
“I take no orders from anybody. ” That “sturdy answer” as Lord Simonds described it, only means in
each case that he is skilled man who knows his work and will carry it out in his own way, but it does not
mean that the authorities who employ him are not liable for his negligence.”
WHEN THE EMPLOYER IS NOT HELD LIABLE?
(SN)
In the following circumstances, the master is not held liable under “Vicarious liability”, and is exempted
from this liability.
1. Negligence of servants: The servant has to perform his duties with a reasonable care which is
possessed by an ordinary person.
Williams vs. Jones (1885) 3 H&C 602)
(Vicarious Liability - Master)
The defendant took the plaintiff’s shed on lease for his carpentry works. Acarpenter, the defendant’s
worker lighted a cigar and negligently threw it. As a result the plaintiff’s shed was burnt. The plaintiff
sued the defendant for compensation. The House of Lords held that the defendant was not liable for
the carpenter/worker’s negligence which had not arisen in the course of employment.
Century Ins. Co. vs. Northern Ireland Road Transport Board (1942 (1) AER 491 HL)
(Vicarious Liability - Master)
In this case, the defendant’s servant was a petrol lorry driver. While transporting the petrol, he lighted
cigarette, resulting damage to another’s property. The House of Lords held that the servant negligently
behaved, however, being the driver of a petrol lorry, he must have been very careful and reasonable.
He must have been taught by his employer with required cautions while transporting the petrol. The
employer failed to do so. Hence he was held liable.
2. Acts outside the course of employment: When the employee does any acts outside the course
of employment, the employer is not held liable. State Bank of India vs. Shyama Devi case is a good
example.
PROBLEM: A gave certain sum of money and cheque to an employee of the bank to be credited to
his account. The employee misappropriated the entire amount. A sued the bank for damages. Will he
succeed?
(June, 2001, M.U.)
SOLUTION: The Bank is not liable to pay the cheque amount or damage to A. The following Case
confirms this principle:—
# State Bank of India vs. Shyama Devi (AIR 1978, SC 1263)
(Vicarious Liability -r Master)
Shyama Devi and Kapildev Shukla, clerk of the State Bank of India were friends. She gave her cheque
to her friend to deposit. The employee-Kapildev Shukla (the friend of Shyama Devi) misappropriated
the amount of the cheque. The Supreme Court held that Shyama Devi entrusted the cheque in a
friendly manner, while the employee was not in the course of employment. If she would have obtained
a receipt for the cheque, then it would certainly becomes “in the course of employment”, and the
Bank would certainly be vicariously liable. Therefore, in the present case, the bank was not held liable.
# Beard vs. London General Omnibus Co. (1900) 2 QB 530)
(Vicarious Liability - Master)
At a halt in the journey, the driver went to a hotel to take his meals. In the absence of the driver, the
conductor drove the bus for a while, and caused accident. The Queen Bench held that the master
(Transport Company) was not liable for the act of conductor, who did the tortuous act outside the
course of employment. The conductor was held responsible. If the driver allowed the conductor and
permitted to drive, then the accident can be treated as was done in the course of employment.
Baldeo Raj vs. Deowatt (AIR1976 MP 164)
(Vicarious Liability - Master)
The driver of the bus allowed conductor to drive. While driving the bus, conductor dashed a rickshaw
resulted the death of rickshaw passenger. The Madhya Pradesh High Court held that as the driver
permitted the conductor to drive.the vehicle, it resulted in the course of employment, and the master
was held vicariously liable.
Unit - II; Parties to the Proceedings
67
3. Independent contractor: If the master entrusts any work to an independent contractor, and if the
independent contractor does any tortuous acts, the master is not held liable. [Refer to Topic “Vicarious
Liability of a Master for his independent contractor’s tortuous act”.]
4. Giving lift to an unauthorised third party: The servant must performhis duties accordingto the
instructions given by his master. If he violates any of them, and does any tortious act to any third
person, the master is not held liable.
# Conway vs. George Wimpey and Co. Ltd. (1951) 2 K.B.
266)
(Vicarious Liability - Master)
Brief facts: The defendants were a big contracting company. They undertook to construct buildings.
They provided lorries for conveying their employees from their residence to the work-spots. They
orally instructed the drivers not to give lift to any third parties. They also affixed notices in every lorry
that others should not travel in the lorry, and the lorry was meant only for conveying the defendant
company’s workers, and that if any one travelled, it was his own risk. One of the drivers took the
plaintiff-Conway in his lorry. Conway was an employee of another company, and not concerned with
the defendant company. The driver caused an accident, resulting injuries to the plaintiff. The plaintiff
sued the defendant for compensation.
Judgment: The House of Lords held that the act of the driver in giving lift to a third person irrespective
and in spite of instructions was outside the scope of his employment, Therefore, the defendants
were not held liable.
Principle: The House of Lords held: “The giving lift to an unauthorised person was not merely a
wrongful mode of performing the act of the class this driver was employed to perform but was the
performance of an act of a class which he was not empioyed to perform at ail. ”
Premwati vs. State of Rajasthan (AIR 1977 Raj. 116)
(Vicarious Liability - Master)
The rule in Conway’s case had been followed in India for several years. In the above case, the driver
ofaGovernmentjeepwastaking back the jeep from garage to the office. In his way, he allowed a third
party-the husband of Premwati. After a while, the jeep driver caused an accident, resulted the death of
the husband of Premawati. The Rajasthan High Court held that the State was not held liable, as there
were strict provisions forthe Government drivers not to allow third persons in the vehicles. The driver
allowed the deceased outside his employment, and thus the deceased was treated as a trespasser
ab initio. Hence the State Government was not vicariously held
liable.
However, this trend has been changing. The Bombay, Karnataka, Punjab and Harayana High Courts
had dissented the Conway’s Rule.
Prithi Singh vs. Binda Ram (AIR 1987 P & H 56)
(Vicarious Liability - Master)
Rule 460 of Punjab Motor Vehicle Rules 1940 provides that the driver should not give lift to any
unauthorised person. In the above case, the driver gave lift to the husband of Prithi Singh. Due to
negligent driving of the driver, an accident took place:, and the husband of Prithi Singh died. She sued
the owner of the vehicle. The High Court held that it was the duty of the owner to strictly control the
drivers not to give lift to any third parson. He failed in doing so, therefore, he was vicariously held liable.
5.
THE DOCTRINE OF COMMON EMPLOYMENT
(SN)
MEANING: The Common employment was an historical defence in the English tort law that said
workers implicitly undertook the risks of being injured by their co-workers, with whom they were in the
“common employment”. The US labour law terminology was the “fellow servant rule”. According
to this doctrine, a master was not vicariously liable for the negligent harm done by one servant to
another servant of the said master acting in the course of their common employment. In Priestley vs.
Fowler (1837), Hutchinston vs. York (1850), New Castle and Berwick Rail Co. (1850) cases, the
principle of the Doctrine of Common Employment was applied. However, later jurisprudents, justices,
etc. criticised this principle and decisions. This rule was abolished altogether by the Law Reform
(Personal Injuries) Act 1948, in the United Kingdom.
Wilson and Clyde Coal Co. vs. English (1938 AC 57)
(Doctrine of Common Employment)
Brief Facts: The provisions of the Workmen’s Compensation Act, 1925 could not remove the
affects of the Doctrine of Common Employment. The initiation was taken by the Courts. In this case,
the plaintiff-English was a worker of the defendant coal mine. He was a minor. Due to the negligent act
The Law of Torts
68
of his fellow worker, English was injured. He sued the Company for compensation. The trial Court
held that the defendant company was not liable according to the principle of the Doctrine of Common
Employment.
JUDGMENT: On appeal, the House of Lords held that the Doctrine of Common Employment was an
old and worthless rule, and therefore, they held that the defendants-appellants liable under vicarious
liability.
Principle: The employer has four important liabilities towards his workers such as providing (i)
competent staff of men, (ii) adequate plant and equipment; (iii) safe place of work; and (iv) safe system
of working for his employees. The nature of the duty has been held to be a personal one which cannot
be delegated normally to another by the employer. In short, it is substantially a duty to take care for the
safety of the employees working under him. In truth, however, there is but one duty, a duty to take
reasonable care to carry on operations as not to subject the persons employed to unnecessary risk.
After the pronouncement of the judgment in the above case, the Britain Parliament enacted The Law
Reform (Personal Injuries) Act, 1948 completely abolishing the Doctrine of Common Employment.
In India, the scope of the doctrine was limited by The Indian Employers’ Liability Act, 1938, The
Workmen’s Compensation Act, 1923, The Employees’ State insurance Act, 1948, The Personal
Injury (Compensation Insurance) Act, 1963, The Factories Act, 1948, the Public Liability Insurance
Act, 1991, the Environmental National Tribunal Act, 1995, etc. After these enactments came into ^
force, this doctrine was gradually disappeared from Indian courts too.
2.D.(iv). VICARIOUS LIABILITY OF A MASTER FOR HIS FOR
HIS
INDEPENDENT CONTRACTOR’S TORTUOUS ACT
Q.1.
Distinguish a “Servant” from an “Independent Contractor”.
Q.2.
Morgan, vs. Incorporated Central Council (1936) 1 All E.R. 404).
(SN)
Q.3.
Govindarajulu vs. M.L.A. Govindaraja Mudaliar (AIR 1966 Mad. 332).
(SN)
Q.4.
GENERAL RULE - “Respondeat Superior”.
(SN)
Q.5.
DIFFERENCES BETWEEN SERVANT AND INDEPENDENT CONTRACTOR.
Q.6.
EXCEPTIONS to “Respondeat Superior”.
Q.7.
# Tarry vs. Ashton (1876) 1 QBD 314).
Indicate the scope of Master’s liability in each case.
(May, 2010, B.U.) (May, 2014, Amb.U.)
(EQ/SN)
(SN)
(SN) (July, 2012, S.V.U.)
ANSWER:
VICARIOUS LIABILITY OF A MASTER FOR HIS INDEPENDENT
CONTRACTOR’S TORTUOUS ACT
(EQ/SN)
MEANING:
Independent Contractor. = One who, exercising an independent employment, contracts to do a
piece of work according to his own methods, and without being subject to his employer’s control,
except as to the result of the work. He renders service in the course of an occupation, representing
the will of his employer only as to the result of his work, and not as to the means by which it is
accomplished.
Servant. = Any person who works for another for a salary is a servant in the eye of the law.
Webster Dictionary:
“A servant is one who serves or does service voluntariiy or involuntariiy; a
person who is employed for another for meniai offices or for other iabour, and is subject to his command;
a person who labours or exercises himseif for the benefit of another, his master or employer; a
subordinate helper. ”
Examples:
(a) A is the car owner. B is his driver. A gives salary to
B. B works as a driver under the control of
A. Here B is As servant.
,(b) Awants to go to railway station. He contracts B, an auto driver. A pays the amount according to
the meter reading after reaching the railway station. Here B is an independent contractor. B is not As
servant.
In these examples, if B commits any tortuous act by negligent driving to C, in case of (a), A is held
responsible under vicarious liability. In case of (b), A is not held responsible under vicarious liability,
because here B being an independent contractor.
Unit - II; Parties to the Proceedings
69
IMPORTANT POINTS:
A
Morgan vs. Incorporated Central Council (1936) 1 All E.R. 404)
(Vicarious Liability - Independent Contractor)
The defendant company had entrusted the management of lift to an independent contractor. The
plaintiff was injured when he fell down from an open lift shaft. He sued the defendant. The House of
Lords held that the defendant was not liable, and the plaintiff had to sue the independent contractor.
B.
Govindarajulu vs. M.L.A. Govindaraja Mudaliar (AIR 1966 Mad. 332)
(Vicarious Liability - independent Contractor)
The owner of a lorry entrusted it to a repairer for getting it repaired. While it was in the custody of the
repairer, one of the employees of the repairer drove the lorry, and caused an accident driving the lorry
negligently. The injured sued the ownerfor compensation. The Madras High Court held that the owner
of the lorry was not liable, being the lorry was entrusted to an independent contractor to get it repaired.
The repairer was held responsible.
C. GENERAL RULE: It is a general rule that a person (principal/employer), who entrusts a work to an
independent contractor, is not held responsible under the vicarious liability, if the independent contractor
does any tortuous act. The principle “Respondeat Superior” does not apply in case of the employer
and independent contractor. An employer is held responsible for the tortuous acts done by his servant
in the course of his employment. Therefore, it is necessary to know the differences between a servant
and an independent contractor.
D.
DIFFERENCES BETWEEN SERVANT AND INDEPENDENT CONTRACTOR
SERVANT
INDEPENDENT CONTRACTOR
1.
I have appointed a car driver for my own car.
Here the car driver is my servant. If any
accident occurs, I will be held responsible.
1.
I engaged taxi from my office toTailway station.
Here the taxi driver is not my employee, He is
an independent contractor. If any accident
occurs from my office to railway station, I will not
be held responsible.
2.
The servant is under the control and supervision
of the employer.
2.
The independent contractor is not under the
control and supervision of the employer.
3.
Payment of wages is paid by the employer to
3.
Payment of contract for a work, servibe is paid
by the principal to an independent contractor
under the provisions of Contract Act.
The type of the work entrusted to a servant can
be questionable ‘when’, ‘where’, the work is to
be completed.
4.
The type of the work entrusted to an
independent contractor can be questioned
'how' the work is to be completed.
5.
For the torts done by his servant, the employer
is liable, as the respondent superior.
5.
For the torts done by independent contractor,
the employer is not liable.
6.
A master can suspend or dismiss his servant.
6.
A master/employer cannot suspend or dismiss
an independent contractor, unless the latter
his servant under the labour rules.
4.
■
violates the terms of the contract.
7.
These characteristic features are not seen in a
7.
8.
A servant's service is an integral part of the
8.
An independent contractor's service is an
accessory part of the master's business.
9.
An independent contractor works under a
master's business.
9.
A servant works under a contract of service.
There are some characteristic features of an
independent contractor, viz. (i) ownership of the
tools, machinery, vehicle, (ii) chance of profit;
(iii) risk of loss; (iv) control, etc.
servant. He could not possess the ownership of
the tools, machinery, vehicle, etc.; chance of
profit, risk of loss, control, etc.
contract for service.
E. Lord Denning observed: “It is almost impossible to give a precise definition of the distinction
between them. It is often easy to recognise a contract of service when you see it, but difficult to say
wherein the difference lies. A ship’s maste,r a chauffeu,r and a reporter of a newspaper are all employed
under a contract of service; but a ship’s pilot, a taxi-man, and a newspaper contributor are employed
under a contract for service. One feature which seems to run through the instances is that, under a
contract of service, a man is employed as part of the business; and his work is done as an integral
part of the business; whereas under a contract for services, his work, aithough done for the business,
is not integrated into it but is only accessory to it
ff
F. EXCEPTIONS: It is a general rule that the master is held liable under “Respondeat Superior” for
his servant’s tortuous act, and he is not held liable for the Independent contractor’s tortuous act.
However, the modern legal theory recognises certain circumstances under which a master is held
The Law of Torts
70
responsible for his independent contractor’s tortuous act, and he is held liable under the Principle of
'Respondeat Superior’. Those exceptions are mentioned hereunder:
1. Authorisation or ratification: If the master authorises to do an illegal act or ratifies an illegal act
done by an independent contractor, the master is liable as a joint tort-feasor along with the independent
contractor.
„
■
2. Strict Liability: The rule in “Rylands ys. Fletcher” extends the strict liability of the master, even
in case of an independent contractor does certain works for his master. [See Topic Rylands vs.
Fletcher.]
3. Absolute Liability: The Supreme Court, in its latest environmental cases, propounded the absolute
liability principle. According to it, the principal is strictly held liable. [Refer to Topic “Strict Liability/
Rylands vs. Fletcher”.]
4. Polluter Pays Principle: In environmental cases, which are coupled with tort cases, the Supreme
Court adopted the Polluter Pays Principle, i.e. the industrialist/occupier should pay the compensation
to the victims. He cannot escape taking the pretext of independent contractor. [Refer to Topics of
Environmental Law Notes.]
5. Dangers on or near the Highway: The master, who possesses properties on or nearthe Highway,
has more liability and due care so that no tortuous act be. caused to the users of highway by his
property.
The student should read/study each subject completely from the very beginning of each semester.' Then only
he could answer perfectly entire subject In internal and end examinations, and get the highest marks.
Allot at least two to three hours per day to study the subjects of LL.B.
# Tarry vs. Ashton (1876) 1 QBD 314)
(Vicarious Liability - highway)
The defendant had placed a contract to an independent contractor to attach an overhanging lamp to
his house. The contractor did the same. Due to lose fitting, it was fallen on the plaintiff’s head, causing
serious injuries to him. The House of Lords held that the defendant was liable, though the work was
done by an independent contractor.
PROBLEM: B had employed an independent contractor to erect a grand stand for the purpose of
viewing the horse-race. B charged each spectator five shilling for admission to the stand. A, who had
legally entered the stand, was injured by its collapse. A files a suit against B for damages. Discuss.
(June, 2001, M.U.)
SOLUTION: B is liable to pay damages to A. The problem is identical with Tarry vs. Ashton case
above discussed.
6. Withdrawal of support: If there are supports from A’s house/land to B’s house, and B’s house is
depended upon these supports, A has no right to withdraw such support, under the Easements Act,
1882, or any other covenant attached to the land under the Transfer of Property Act, 1882. If A’s
independent contractor knowingly or unknowingly withdraws the supports from A’s hpuse/land, and
causes the fall of B’s house, then A is held responsible. He cannot plead that the withdrawal was done
innocently by his independent contractor. (Case-laws: Bowervs.Peate (1876)1 QBD 321); Dalton
vs. Angus (1881) 6 App Cas 740); Hughes vs. Parcival (1883) 52 LJQB 348).
7. Doctrine of Common Enriployment: Previous to the enactment of the Workmen’s Compensation
Act, 1925 (England) and the leading case Wilsons & Clyde Coal Co. Vs. English (1938), the employer
could able to escape his liability under the above doctrine. However, it is not an exception now. [Refer
to Topic “Vicarious Liability of a Master for his servant’s tortuous act”.]
rCADE Veera Reddy
n
LL.M. ENTRANCE TEST
(Multiple Choice Questions with Answers)
(Also useful for U.P.S.C., A.P.P.S.C., Civil Prelims, etc.)
^No. of Pages : 480
No. of Bits : 2393
I
I
I
I
I
Cost: Rs. 300/-J
Unit - II: Parties to the Proceedings
2.E.
Q.l.
Q.2.
THE RULE OF STRICT LIABILITY (Rylands vs. Fletcher)
Explain the Doctrine of Strict Liability with the help of leading cases.
(Aug., 2006, O.U.) (Sept., 2005, O.U.) (Dec., 2010, O.U.)
(June, 2010, O.U.) (May, 2013, K.U.) (AnI. 2013, A.U.) (May, 2014 B.U.)
Explain the ‘Rule of Strict Liability’.
under his personal control.
Q.3.
Q.4.
Q.5.
Discuss the liability in Tort for wrongs that may be committed through the agency of animals
(Ani., 2010, K.U.) (Apr., 2012, K.U.) (AnI. 2013, G.U.)
Explain the rule laid down in “Rylands vs. Fletcher”. What are the exceptions to the rule?(Anl. 2013, S.V.U.) (Ani., 2014, P.U.)
Explain fully the Rule in Rylands vs. Fletcher. Discuss whether the liability is absolute.
(Aug., 2009, O.U.) (June., 2013, O.U.)
Critically state the principle of Rylands vs. Fletcher. Can the principle in any way be applied to protect the environment from
(Ani. 2012, P.U.) (Ani. 2013, Amb.U.)
Q.6.
Strict Liability.
Q.7.
Rylands vs. Fletcher (1868 LR 3 HL 330).
Q.8.
“Sic utere tuo ut alienum non laedas".
person.)
Q.9.
71
(SN) (May, 2005, B.U.)
(SN) (May, 2006, B.U.) (May, 2010, B.U.) (Ani., 2013, K.U.)
(Enjoy your own property in such a manner as not to injure that of another
(SN) (Ani. M.U.)
“No Fauit Liability” or “Strict Liability” evolved in Rylands vs. Fletcher case.
Q.10. What are the exceptions to the Doctrine of Strict Liability?
(SN)
(SN) (Ani. 2010, G.U.) (Ani. 2012, M.U.)
Q.11. Ponting vs. Noakes (1894) 2 QB 281).
(SN)
Q.l2. Nichols vs. Marsland (1875 LR 10 Ex 255).
(SN)
Q.13. Carstair vs. Taylor (1871) LR 6 Ex 217).
(SN)
Q.14. Richards vs. Lothian (1913 AC 263).
(SN)
Q.15. Green vs. Chelsea Waterworks Co. (1854) 2 QB 172).
(SN)
Q.l6. Carriers.
(SN) (Sept., 2013, O.U.)
ANSWER:
THE RULE OF STRICT LIABILITY (Rylands vs. Fletcher)
INTRODUCTION:
It is the fundamental principle of the law that “Sic
(EQ/SN)
utere tuo ut alienum
non
laedas”. (Enjoy your own property in such a manner as not to injure that of another person.)
But there are certain occasions and activities, by which there are chances of causing harm and injury
to others. For Example: Factories. They provide employment opportunities, and produce the
commodities useful for the people. Factory is a social utility. At the same time, there are also dangers
inherent in the process of establishing and manufacturing process.
the social utility and imposing liability upon the
There must be a balance between
manufacturer.
The solution for this problem is in three ways: (1) to prohibit of all such units and structures; (2) to allow
them while imposing certain restriction in the interests of public; and (3) to impose penalties on the
occupiers on the occasions of their failure and caused damages to others, irrespective of the point
that such occupiers took the appropriate steps to prevent such mishappenings. The first One is not at
all possible. The growing population needs goods in huge quantities. Without the factories, no supply
of goods can be made. Second one is also not practicable and fruitful. Because already, there are
several laws enacted imposing restrictions on the factories. The third solution is called “No Fault
Liability” or “Strict Liability” evolved in Rylands vs. Fletcher case.
Imposing liability upon the defendant, even though there is no fault upon him is called “The Doctrine of
Strict Liability.” This principle came to know by famous case-law “Rylands vs. Fletcher.” Therefore,
this liability is also known as “The Rule in Rylands vs. Fletcheri’since 1868. After 121 years, the
Supreme Court of India, developed this principle some more and laid a new further strict liability and
named it as “Absolute Liability” in the famous case-law "M.C. Mehta vs. Union of India” in 1987.
(I)
THE DOCTRINE OF STRICT LIABILITY (THE RULE IN RYLANDS
FLETCHER)
vs.
(EQ/SN)
This Doctrine explains that the defendant should not escape from his liability even though there is no
fault of him. The liability is imposed strictly upon
PROBLEM:
him, without fault of him.
The Plaintiffs mine was flooded water when his neighbour dug a well on his land. The
Plaintiff engaged independent contractors who worked carefully and there is no negligence on their
part. Where the plaintiff sued the defendant, defendant was made liable, though he was not at fault.
Explain the rule in the light of decided cases.
(Aug., 2002, A.U.)
SOLUTION:
Fletcher.
The plaintiff is held liable. The facts of the problem are identical with Rylands vs.
# Rylands vs. Fletcher (1868 LR 3 HL 330)
(Strict Liability)
Brief Facts: The defendant had constructed a reservoir over his land. For this purpose, he entrusted
the constructional work to an independent contractor. The purpose of the reservoir was to provide
The Law of Torts
72
water to the defendant’s mill. There were old disused shafts under the site of the reservoir. This fact
was not known to the defendant or to his contractor.
Therefore, they did not observe them, and did not
take any precautionary steps to avoid any damage from such disused shafts. They did not block them.
After construction, the defendant filled the reservoir with water. The water was filled in the reservoir,
burst through the shafts, and then flooded the coal mines of the plaintiff-the neighbour and damaged
entire coal mines. The plaintiff sued the defendant claiming damages. The defendant argued that he
did not know the presence of disused shafts, and he took all precautionary steps as a prudent man
can do to prevent any damage to any person. He also pleaded that the construction was handed over
to an independent contractor, and he was not liable. He also contended that the flood from the reservoir
was ah act of God, Which cannot be foreseen by an ordinary person.
JUDGMENT: The House of Lords unanimously gave the judgment in favour of the plaintiff, holding the
defendant liable to pay compensation to the plaintiff, even though there was no fault of him.
Principles lay down: 1. 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 to the neighbour. 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.”
2. The liability underthis Rule is that the use of land should be “non-natural”. For the application of the
rule, there must be there essentials:
(0
Dangerous thing: Some dangerous thing must have been brought by a person on his land.
When a thing escapes from one’s land causing mischief or harm to another must be dangerous.
In the above case, the thing so collected was a large quantity of water. In environmental plus torts
cases, the things are water pollution, air pollution, land pollution, noise pollution, etc.
00
Escape: The thing thus brought to kept by a person must have been escaped. The thing causing
the damage must have been escaped from the control of the defendant and must have trespassed
on other people and properties. Even when there is no evidence of negligence on the part of the
defendant, he will be held liable. In this case, there was no negligence on the part of the defendant.
There was no wrong or fault from his side. In such circumstances, he was held liable. Thus it is
called “No fault Liability”,
(in) Non-naturai use of iand: Water collected in the reservoir in such a huge quantity in this case
was held to be non-natural use of land. Keeping water for ordinary domestic purposes is ‘natural
use.’
3. Blackburn J. propounded the principle: “We think that the rule of law is, that the person who for his
own purposes brings on hiS lands and keeps there anything likely to do mischief if it escapes, must
keep it in at his peril, and if he does not do so, is prime facie answerable for all the damage which is the
natural consequence of Its escape. He can excuse himself by showing that the escape was owing to
the plaintiff’s default; or perhaps thatthe escape was the consequence of vis major, orthe act of God;
but as nothing of his sort exists here, it is unnecessary to inquire what excuse would be sufficient....
The general rule, as stated above, seems on principle Just. The person whose grass or com is eaten
down by the escaping cattle of his neighbou,r or whose mine is flooded by the water from his neighbour’s
reservoi,r or whose cellar is invaded by the filth of his neighbour’s privy, or whose habitation is made
unhealthy by the fumes and noisome vapours of his neighbour’s alkali works, is damnified without any
fault of his own; and it seems but reasonable andJust that the neighbour, who has brought something
on his own property which there, harmless to others so long as it is conifned to his own property, but
which he knows to be mischievous if it gets on his neighbour’s should be obliged to make good the
damage which ensures if he does not succeed in confining it to his own property. But for this act in
bringing it there no mischief could have accrued, and it seems butJust that he should at his peril keep
it there so that no mischief may accrue, or answer for the natural and anticipated consequences. And
upon authority, this we think is established to be the law whether the things so brought beasts, or wate,r
orfilth,orstrenches.”
4. It is the general principle that the owner is not responsible for the acts done by an independent
contract. However, this principle is not accepted in the Strict Liability doctrine. In the above case-law,
the construction of reservoir was undertaken by an independent contractor, even then the defendant
was held liable.
EXCEPTIONS TO THE DOCTRINE OF STRICT LIABILITY
There are five exceptions to the rule of Rylands vs. Fletcher/Strict Liability.
1.
Plaintiff’s own default;
2.
V7s Mayo/-(Act of God):
3.
Consent of the plaintiff;
They are:
(SN)
Unit - II: Parties to the Proceedings
4.
Act of third party; and
5.
Statutory Authority.
73
1. Plaintiff’s own default: If the damage is caused to the plaintiff, by his own default the Rule of
Rylands vs. Fletcher (Strict Liability) does not apply. In Ponting vs. Noakes (1894) 2 QB 281), the
plaintiffs horse went into defendant’s land and died after having nibbled the leaves of a poisonous tree
there. The defendant was not held liable.
2. \/7s Mayor/Act of God: Act of God is considered to be a defence to the Rule of Strict Liability. In
Nichols vs. Marsland (1875 LR 10 Ex 255) case, due to the heavy rains, the embankments of the
reservoir of the defendant broke and the water smashed away the plaintiffs bridges. The defendant
was not held liable.
3. Consent of the plaintiff: In case of volenti non fit injuria, i.e., where the plaintiff has consented to
the accumulation of the dangerous thing on the defendanfs land, the rule of Rylands does not applicable.
In Carstair vs. Taylor (1871) LR 6 Ex 217), the plaintiff hired the ground floor of the land-lord/defendant,
who was staying in first floor. The water was stored on the top of the first floor, which was used by both
of them. Without any negligence of the defendant, one day the water tank burst, and water flew into
plaintiffs portion, damaging the plaintiffs goods. Here, as the water was used by both of them
commonly, and the plaintiff also knew the presence of the tank and its utility and danger, the Rule of
Rylands case was not applied, and the defendant was not held liable.
4. Act of Third Party: If the harm has been caused due to the act of stranger, who is neither defendanfs
servant nor agent nor his family member, on whom the defendant has no control, the defendant will not
be held liable under this Rule. In Richards vs. Lothian (1913 AC 263) case, some thieves blocked
the waste pipes of a wash basin, and opened the tap. The overflowing water damaged the plaintiffs
goods. The defendants were not held liable.
5. Statutory Authority: An act done under the authority of a Statute is a good defence to the Rule of
Strict Liability. In Green vs. Chelsea Waterworks Co. (1854) 2 QB 172) case, the defendant company
had a statutory authority to supply the water to the town by pipes. Without their fault or negligence, the
water pipe broke, and water entered into plaintiffs house causing damage to his goods. In this case,
the defendants were not held liable.
POSITION IN INDIA: The Rule of “Rylands vs. Fletcher” (Strict Liability) is also applied in India
with slight variations. Liability without fault has been recognised in cases of motor vehicle accidents.
Where a driver does an accident, and causes injury to a person, the driver is punished under the
criminal law, and the owner of the car is imposed penalty and is also compelled to pay the compensation
to the victim or his dependents under the tortuous liability. The same liability is also applied in the
Railways Act and Carriers Act. It is a welcome measure.
Even though there is no fault by defendant, he is required to pay compensation to the victim or victim’s
family. This is the result of the Strict Liability Doctrine evolved from the case-law Rylands vs. Fletcher.
However, to save the money from their pockets, the motor vehicle owners get their vehicles insured.
Now every State Government has made the necessary legislations compelling every vehicle owner to
insure his vehicle compulsorily. The recognition of such a liability will in fact be the application of the
Rule in Rylands vs. Fletcher.
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74
The Law of Torts
THE ABSOLUTE LIABILITY (M.C. Mehta vs. UOI)
2.F.
Q.1.
Explain the rule of “Absolute Liability”. Are there any exceptions recognized to this Rule? Discuss with reference to the
relevant case-law. (Feb., 2006, O.U.) (AnI. 2010, A.U.) (AnI. 2011, M.U.) (AnI. 2012, B.U.) (AnI. 2013, B.U.) (AnI. 2014, Amb.U.)
Q.2.
Explain and distinguish “Absolute” and “Strict” Liability.
Q.3.
Narrate in detail about the Absolute Liability.
(SN)
Q.4.
Meaning of Absolute Liability.
(SN)
Q.5.
DISTINCTiON BETWEEN ABSOLUTE LIABILITY AND STRICT LIABILITY.
(SN)
Q.6.
# Union Carbide Corporation vs. Union of India (1991) 4 SCC 584) (BHOPAL GAS LEAK CASE).
(SN)
Q.7.
Anderson.
(SN)
Q.8.
# M.C. Mehta vs. Union of India (AIR 1987 SC 965) (OLEUM GAS LEAKAGE CASE).
(SN)
Q.9.
Polluter Pays Principle, Precautionary Principle, Sustainable Development, etc.
(SN)
What is the position in India?
(Jan., 2008, N.U.) (AnI. 2012, K.U.) (AnI. 2012, B.U.) (AnI. 2013, G.U.)
Q.10. The Public Liability Insurance Act, 1991.
(SN)
ANSWER:
THE ABSOLUTE LIABILITY
(EQ/SN)
MEANING: Absolute Liability is a standard of legal liability found in tort and criminal law of
various legal jurisdictions. To be convicted of an ordinary crime, in certain jurisdictions, a person
must not only have committed a criminal action, but also have had a deliberate intention or guilty
mind (mens rea).
DISTINCTION BETWEEN ABSOLUTE LIABILITY AND STRICT LIABILITY
(SN)
To be convicted of an ordinary,crime, in certain jurisdictions, a person must not only have committed
a criminal action, but also have had a deliberate intention or guilty mind {mens rea). In a crime of strict
liability (criminal) or absolute liability, a person could be guilty even if there was no intention to
commit a crime. The difference between strict and absolute liability is whether the defence of
a mistake of fact is available: in a crime of absolute liability, a mistake of fact is not a defence.
Strict or Absolute Liability also can arise from inherently dangerous activities or defective products
that are likely to result in harm to another, regardless of protection taken. Negligence is not required
to be proven. Example: Owning a pet rattle snake.
“Absolute Liability” is stronger than the “Rule of Strict Liability”. In the Rule of Strict Liability
of Rylands vs. Fletcher, there are exceptions. But in the Rule of “Absolute Liability” propounded
by the Supreme Court, there are no such exceptions. The defendant has no chance to escape, as
is in the case of Strict Liability. There were two cases of dangerous gas leaks - Bhopal Gas leak
(1984) and Oleum gas leak in Delhi Cloth Mills (1985).
These two incidents caused the death of
several persons and injurious to lakhs of people.
# Union Carbide Corporation vs. Union of India (1991) 4 SCC 584)
(Absolute Liability)
(BHOPAL GAS LEAK CASE)
(SN)
Brief Facts: On the night of 2/3-12-1984, the most dangerous gas “Methyl Iso Cyanate” (MIC) gas
was leaked from a pesticides plant situated at Bhopal, belonging to the Union Carbide Corporation,
a Multinational Company of U.S.A. As a result of the leakage of MIC, about 3,000 persons died, and
about 6,00,000 people suffered with permanent disability in skin, eyes, respiratory, kidney, heart systems
and other complications. The Government of India sued the Union Carbide Corporation in Supreme
Court of India. After a period of 4 years, and as a result of the settlement between, the parties, the
Supreme Court gave the judgment ordering the defendant to pay Rs. 750 Crores to the victims and
the dependents of the deceased. Jurisprudents and Press criticised the judgment, and felt that the
defendants should have been criminally punished for their brutal acts.
[Note: Anderson was the C.E.O. of Union Carbide Corporation. He was arrested by Bhopai Poiice. The USA Government
pressurized the then Rajiv Government and got the Baii. The poiice had given escort to Anderson up to the Aero
aiiowed him to go to America. Thereafter he never came to india. He died at his age of 80 years in September,
to iii-heaith in U.S.A.]
drum and
2014 due
# M.C. Mehta vs. Union of India (AiR 1987 SC 965)
(OLEUM GAS LEAKAGE CASE)
(SN)
(Absolute Liability)
Brief Facts: Shriram Foods and Fertilisers Industries is the subsidiary of Delhi Cloth Mills Ltd.,
and one of the units is situated in Delhi, Cn,4-12-1985 & 6-12-1985, Oleum gas was leaked from one
Unit - II : Parlies to the Proceedings
75
of the units of Shriram Foods and Fertilisers industries, resulted the death of one advocate, and injuries
to several others. The defendants pleaded the defences available under the Rule of Strict Liability.
JUDGMENT: The Supreme Court of India gave the judgment in favour of the victims and their
dependants. While disposing the case, the Supreme Court propounded the new Doctrine of Liability
and named it “RULE OF ABSOLUTE LIABILITY” and held
the defendants liable to pay compensation’.
Principles laid down: 1. The Supreme Court criticised the Rule of Strict Liability saying that it was
laid down in the 19th Century circumstances, and it does not suit to 20th Century, and also observed;
“We would therefore hold that where an enterprise is engaged in a hazardous or inherently dangerous
activity and harm results to any one 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 tortuous principle of strict liability under
the Rule in Rylands vs. Fletcher. ”
2. There are exceptions to the Rule in Rylands vs. Fletcher. However, no exceptions are allowed in
the Doctrine of Absolute Liability.
3. The First reason explained forthis by the Supreme Court is that the owners/defendants who produce
the dangerous and hazardous nature of products, do their activities for their private profits. There is a
social obligation upon them to compensate those people who suffer from their activities.
4. The owners/defendants are only liable persons to guard and check the mishappenings, and they
have resources and knowledge.
CONCLUSION: The Supreme Court does not stop to impose the absolute liability in Bhopal Gas leak
case, and Oleum Gas Leak case, but also is continuing its trend in similar cases. Particularly in the
cases, where the tortuous liability and environmental pollution are coupled, the Supreme Court ordered
in several cases to close or to relocate the industries causing pollution. It also adopted the principles
viz., Polluter Pays Principle, Precautionary Principle, Sustainable Development, etc. It has
also concentrated on social, economical and environmental problems too.
In February, 1997, the Supreme Court banned the Aqua Culture near the shores of the seas which are
causing pollution to agricultural fields of India. The Supreme Court also passed certain strict judgments
imposing certain strict conditions on the Factories polluting the atmosphere in entire India.
As a result of Supreme Court’s initiation, the Indian Parliament enacted in the fields of torts and
environmental law. The Public Liability Insurance Act, 1991 stands as a good example imposing
liability upon the owners of the hazardous chemical factories to insure the people (other than the
workers) with their costs, so that the compensation can readily be payable to the victims and aggrieved
persons. The environmental courts are also established separately to deal with environmental pollution
causing torts to general public.
The High Courts are also following the precedents of the Supreme Court. The Andhra Pradesh High
Court passed certain judgments in sue motto on the industries located surrounding Hyderabad which
are polluting the environment and causing injury to the health of human and cattle. The Supreme
Court and the High Courts are giving directions to the administrators and political leaders from time to
time to prevent the environmental pollution, and thus are trying to minimise the effects of the pollution
and deaths.
2350 GOLDEN LEGAL MAXIMS
Compiled : Gade Veera Reddy
It is a useful book to law students. It contains 2350
legal maxims explained in English.
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The Law of Torts
76
2.G.
OCCUPIER’S LIABILITY FOR DANGEROUS PREMISES
(June, 2011, O.U.) (AnI., 2012, N.U.) (AnI., 2013, A.U.)
Q.1.
To what extent is an occupier liable for dangerous premises?
Q 2.
Discuss the liabiiity of an occupier of premises towards a person who comes in pursuance of a contract.
Q.3.
(AnI., 2011, P.U.) (AnI., 2011, K.U.)
It is said that the liability of an occupier of premises varied with the character of the visitor.
what is the liability towards each?
Give illustrations.
How are the visitors are classified and
(AnI., 2009, S.V.U.)
Q.4.
Occupier's Liability for Dangerous Premises.
(SN)
Q.5.
Occupiers’Liability Act, 1957 (England)
(SN)
Q.6.
LIABILITY TOWARDS LAWFUL VISITORS.
(SN)
Q.7.
Indemnaur vs. Dames (1866) LR. 1.C.P).
(SN)
Q.8.
LIABILITY TOWARDS LAWFUL LICENSEE.
(SN)
Q.9.
Fairman vs. Perpetual Investment Building Society (1923 AC 74).
(SN)
Q.10. Roles vs. Nathan (1963) 1 W.L.R. 1117).
(SN)
Q.11. LIABILITY OF THE OCCUPIERS OF STRUCTURES ADJOINING HIGHWAY.
(SN)
Q.12. Kallulal vs. Hemchand (AIR 1958 Mad. 48).
(SN)
Q.13. Noble vs. Harrison (1926) 2 KB 332).
(SN)
Q.14. Nagamani vs. Corporation of Madras (AIR 1956 Mad. 59).
(SN)
Q.15. # Subhagwanti vs. Municipal Corporation of (AIR 1966 SC 1750).
(SN) (AnI., 2010, M.U.)
Q.16. LIABILITY TOWARDS TRESPASSERS.
(SN)
Q.17. Mokshada Sundari vs. Union of India (AIR 1971 Cal. 480).
(SN)
Q.18. Lowery vs. Walker (1911 AC 10).
(SN)
Q.19. Mourton vs. Poulter (1930) 2 KB 183 191).
(SN)
Q.20. Cherubin vs. State of Bihar (AIR 1964 SC 205).
(SN)
(SN) (AnI., 2011, K.U.)
Q.21. LIABILITIES TOWARDS CHILDREN.
Q.22. # Glassgow Corporation vs. Tayior (1922) 1 AC 44).
Q.23. Cooke vs. Midland Great Western Railway of Ireland (1909 AC 229).
■ (SN) (AnI., 2012, A.U.)
(SN)
ANSWER:
OCCUPIER’S LIABILITY
(EQ/SN)
INTRODUCTION: Under the Common Law, the law relating to occupier’s liability for dangerous land
and structures was classified into four heads - (i) duty under contract; (ii) liability in tort to an invitee; (iii)
liability in tort to a licensee; and (iv) liability in tort to a trespasser.
Who is an Occupier? An Occupier is the owner or the responsible person of the premises or of other
structures like cars, ships, aero planes, lifts, etc. These are dangerous to human life, but at the same
time, they are also very much useful to the man. The occupier of these dangerous premises and
structures owes the highest duty of care towards those visitors who entered under a contract. The
degree of care owes towards the invitees. He has no duty of such care towards the trespasser.
Occupiers’ Liability Act, f957 (England) reduced the above four heads in two heads, i.e. (i) lawful
visitors; and (ii) trespassers. But the law relating to liability in tort to a trespasser has not been affected
by this Act. The nature of an occupier’s obligation varies according to the kinds of persons who visit
frequentlythose premises, and therefore, the occupier’s obligation will be considered under the following
three heads.
1.
Liability towards lawful visitors;
2.
Liability towards trespassers; and
3.
Liability towardsthe children.
1.
LIABILITY TOWARDS LAWFUL VISITORS
(SN)
It is again sub-divided into three sub-heads,
(a) Liability towards an invitee: When the occupier of the premises and the visitor has a common
interest or the occupier has an interest in the visit of the visitor, the visitor is known as an ‘invitee’.
Even though he does not purchase anything from the shop, he is an ‘invitee’. The occupier is supposed,
to take ‘reasonable care’ to prevent any injury or damage to the invitee from any ‘unusual danger’
on his premises which he ‘knows or ought to have known’.
Indemnaur vs. Dames (1866) L.R. 1.C.P)
The plaintiff was the gas-fitter. On the request of defendant, he entered into the house of the defendant
for gas fitting. While doing so, he fell from an unfenced opening of the first floor and was injured. The
plaintiff being an invitee, the defendant was held liable for the injury caused to the plaintiff.
Unit - II: Parties to the Proceedings
81
42.
The defendant installed live electric wire around his
43.
The plaintiff climbed and stood at the edge of the ladder with an intention to nail on the wall of the
defendant. The defendant did not like the nailing on his wall. He shook the ladder, and as a
result the plaintiff fell down and received injuries. Is the defendant liable?
44.
Give the meaning of “Ignorantia facti excusat, ignorantia juris non excusat.
45.
Is mistake of fact a good defence in the torts?
46.
A has to pay Rs. 1,000/-to B. D has to pay Rs. 1,000/-to C. A sends E with money to give it to
B. By mistake, E gives Rs. 1,000/-to C instead of B. A sues C. Can A recover amount from C?
47.
Are the parents and the teachers empowered to punish the children under Parental and QuasiParental Authority?
.
48.
What is meant by “Dilatory Plea”? Is it a good defence?
agricultural land with an intention to prevent
the wild animals. He did not arrange any visible signs or boards to the public. The plaintiff was
coming from his land and .did not notice the electric wire, and was caught with electric wires,
and as a result he received serious injuries. The defendant argued that the plaintiff was the
wrong-doer and he installed the electrical wire for his private defence. Discuss.
49-
2.B.(b).
VOLENTI NON FIT INJURIA
49.
Give the meaning of “Volenti non irt injuria”.
50.
A is drowning in a water-pool. To rescue him, B dived into the
doing so, B received injuries. Can B sue Afor compensation?
51.
A invites B to dine. B enters into the dining hall and also the bed room? Can A restrain B?
52.
A is a patient. The Doctor tells him that operation is necessary. A consents for operation. The
doctor does a wrong operation. Can A sue the doctor and claim compensation? Can the
doctor plea the defence of “volenti”?
53.
What is the difference between ‘volenti’and ‘scienti’7
54.
What are essential legal points of “Volenti...”?
55.
The plaintiff was witnessing a cricket match at a Stadium organized by the Cricket Club of India.
He was seriously injured by a mighty hit from the batsman. Consider the liability of the cricket
water and rescued A.
While
club of India to the Plaintiff.
56.
The plaintiff went to see a car racing of the defendant club. There was a collision between two
cars of the racing, and one of the two cars was rushed among the spectators. Several spectators
were injured including the plaintiff. The plaintiff sued the defendants for the compensation.
Decide.
57.
The plaintiff was a photographer. He went to photograph a horse racing. He stood at the edge
of the arena. He concentrated on viewing and photographing. One of the horses in racing
furiously galloped. Hearing its gallop, the plaintiff frightened and fell down from the edge of the
arena into the arena. He received serious injuries. He sued the defendant. Decide.
58.
The soldiers were practising rifle shooting at a place sanctioned by the Government. For the
purpose of shooting practice, the place was covered with walls, hills and also certain notices
prohibiting the entrance for outsiders were also exhibited in conspicuous places. Notice boards
were also put. Some people went there for collecting the empty cartridges, which have copper
material. Two boys were killed by the rifle shooting. Discuss the liability of the soldiers and the
Indian Government.
59.
The plaintiff trespassed into a place, where the spring guns were installed fora particular purpose.
He knew them and the purpose of installing the spring guns. He negligently put his feet on a
spring gun, and received injuries. Discuss the liability of the defendant?
60.
The plaintiff was an employee. The defendant was an employer engaged in the business of
drilling and cutting rocks. The cranes used to convey the stones from one place to another
place, and cut them in required sizes, and brought them to back. In theirway, under the workers
worked and busy in their entrusted works. In one occasion, the crane slipped and a stone was
fallen on the head of the plaintiff, who received serious injuries. The plaintiff sued the defendant
for compensation. The defendant pleaded the maxim “volenti...”an d contended that the plaintiff
knew the risk and invited the risk himseilf.
82
61.
The Law of Torts
The plaintiff was an old man. He challenged the defendant to fight. The defendant laughed and
refused to fight. The plaintiff came fonward and gave a punch to the defendant. In return the
defendant gave a punch, which resulted serious injury to the plaintiff’s eye. Nineteen stitches
were stitched on the injured part of the plaintiff after operation. Discuss the liability of the
defendant.
62.
The defendant had left the horse and a van unattended on a busy street. A police officer was on
duty inside the police station. He rushed out of the police station by seeing runaway horses
with a van coming down the lane and eventually he stopped them while sustaining injuries. Is
the police officer entitled to recover damages? Comment.
63
2.B.(c). INEVITABLE ACCIDENT / UNAVOIDABLE ACCIDENT
63.
What is meant by ‘Inevitable Accident’ / ‘Unavoidable
64.
The defendant was a member of a shooting party. The plaintiff was also a member. The
Accident’?
members of the shooting party were practising shooting at a pheasant. The defendant aimed
at the pheasant and fired it. The pellet from his gun glanced off the bough of a tree and then
accidentally hit the plaintiff. The plaintiff was engaged in carrying cartridges and game for the
party. Due to the hit of the pellet shoot by the defendant, the plaintiff injured. The plaintiff sued
the defendant for compensation. The defendant pleaded the defence of “inevitable accident”.
65.
The dogs were fighting, belonging to the plaintiff and the defendant. The defendant with a good
intention tried to separate them. While he was trying to separate the dogs, the plaintiff came
nearer to them. The defendant did not observe the plaintiff. While he was sincerely trying to
separate the dogs, he accidentally hit the plaintiff in his eye. The plaintiff sued the defendant.
Decide.
66.
A parked his car by the side of the road inside locked with the glass car doors. B, a passerby,
while watching the dog was injured by a piece of glass that flew into his eye as a result of the
dog biting the glass and breaking it in excitement. B files an action for damages against A. Will
he succeed?
67.
The plaintiff’s predecessors had installed an electric cable under the land of a County Council,
without their permission or knowledge. Some years passed. The County Council gave an
excavation contract on their land to the defendants. While the defendants were carrying the
excavation works, they damaged the electric cable of the plaintiff. The defendants were unaware
about the existence of the electric cables.
68.
The defendant was a carrier. Some wooden cases were entrusted to him for transportation.
Those wooden cases contained nitro-glycerin substance.
This fact was not intimated to the
defendant by the consignor. One of the wooden boxes was damaged, and began to leak. The
defendant got the box Into his office and opened it with an intention to repack it strongly. The
wooden box containing nitro-glycerin exploded and damaged the plaintiff’s building. What is the
liability of the defendant?
■69
2.B.(d).
VIS MAJOR (ACT OF GOD)
69.
What is meant by Vis Majors
70.
The defendant constructed some artificial lakes on his own land. They were so much strong
that they were able to face the ordinary rains. In one year, the extraordinary rains occurred, and
the defendant’s artificial lakes were filled with full of water. Thus they broke. The heavy water
washed away four bridges of the plaintiff. The plaintiff sued the defendant for the recovery of
the damages. The defendant pleaded the defence of Act of God/V/s Major. Decide.
71.
72.
The Acts of God or vis mayor must be apparent on the
.
The defendant constructed a building. It was collapsed and as a result of it, two sops of the
plaintiff were dead. Before the day the building collapsed, there was a rain of 2.66 Inches. The
defendant pleaded the rain as an Act of God. Decide.
73.
.1?
The defendant was having a transport-company. The plaintiff entrusted some goods to the
defendant. Those goods were robbed by some unruly mob. The defendant pleaded it as an Act
of God. Decide.
-74-
Unit - II: Parties to the Proceedings
2.B.(e).
83
NECESSITY
74.
Write the meaning of “Necessitas inducit privilegium quoadjura privata.”
75.
A’s house.is burning. B has come and removed the roof of the house with an intention to stop
the fire, and to prevent it from further spreading. In doing so, B has caused certain damage to
A’s house. Is B liable to pay damages to A?
76.
The ship is over-luggage. There is a danger that the ship is going to be sunk due to the leakage,
etc. The ship captain orders to throw some of the luggage in the sea, so that the ship becomes
lightened and can be saved from the danger of sinking. Is the ship captain responsible for the
loss of luggage?
77.
What is the meaning of “Salus populi suprema lex.
78.
Which case is known popular as “Pavement Dwellers’ Case”?
79.
The defendant was an officer of a prison. The plaintiff was a prisoner, and she started a hunger
strike. To save her life, the defendant-officer forcibly fed her. The plaintiff sued the defendant
for battery.
80.
The Bombay Municipal Corporation took a campaign against the pavement dwellers, and the
pavement dwellers challenged their activity. The Corporation argued that they were trespassers
99
ab initio.
81.
There was a fire accident occurred in the plaintiffs premises. The firemen rushed the spot with
all appliances, and were trying to extinguish it. The defendant had also entered the premises
with good faith, for which the plaintiff objected. The defendant did not heed the words of the
plaintiff and helped the firemen in extinguishing the fire. The plaintiff sued the defendant for
trespass. Decide.
82
2.B.(f).
82.
JUDICIAL ACTS
What is meant by the ‘Judicial Acts’?
83
2.B.(g).
LIABILITY OF THE STATE FOR TORTS /
ACT OF STATE - DEFENCE OF SOVEREIGN IMMUNITY
83.
What is meant by ‘Act of State’?
84.
What is meant by “Sovereign Immunity” or “Crown Immunity”?
85.
Write the definition given by Wade and Philips of ‘Act of State’?
86.
Write the definition given by Hidayatullah J. of ‘Act of State’?
87.
Denman was a captain in the British Navy. The plaintiff-Buron owned slave barracoons in the
West Coast of Africa, which was outside British Dominion. Captain Denman-the defendant
attacked the plaintiff’s barracoons, and released slaves and burnt the slave barracoons. The
defendant’s acts were ratified by the British Government later. The plaintiff brought a suit against .
Captain Denman. Denman pleaded that it was an Act of State, and ratified by the British
Government, and therefore he could not be held liable for the payment of compensation to the
plaintiff. Write the decision of the Court.
88.
Before the independence, the Ruler of Nabha granted “Maiwa House” to the appellant-Hardial
Singh. Nabha State was merged in Patiala and East Punjab States’ Union (PEPSU) on 20-81948. In 1952, the new State repudiated the grant which was made before the independence.
The appellant challenged it. The State pleaded the defence of “Act of State”. What was the
Court’s decision?
89.
After passing the Independence of India Act, 1947, the State of Junagadh became a sovereign
State, The Nawab of Junagadh did not like to accede in India. He requested Pakistan for the
help. He could not get help from Pakistan, and he fled away to Pakistan/ Meanwhile, a referendum
was held, and theStateof Junagadh was acceded in the Indian Union. On 17-11-1941, Nawab
of Junagadh granted certain property to Abu Panch. Abu Panch sold the property in the same
year to the Respondent for Rs. 30,000/-. On 18-10-1947, theAdministrators of Junagadh State
issued an order stating that the gift given to Abu Panch by Nawab was invalid, and subsequently
84
The Law of Torts
the sale by Abu Ranch was also invalid, and then seized the property. What was the decision
given by the Supreme Court?
90.
What is the meaning of “Rex non potestpeccare”?
91.
What is the distinction between “Sovereign Functions” and “Non-Sovereign Functions”?
92.
The Captain of a British man-of-war destroyed a Spanish trading ship wrongfully. While destroying
the Spanish ship without superior orders he believed that he shouW destroy that trading ship as
a part of the performance of his duty. He pleaded the defence of Sovereign Immunity and Act of
the State.
93.
The Captain of a British man-of-war destroyed a lobster factory situated on the coast of
Newfoundland of France. What was decision of the Court?
94.
What is the position of the defence of Sovereign Immunity in
95.
A servant of the plaintiff-company was driving a carriage belonging to the company. The carriage
was passing on the road nearthe Government Dockyard. At that time, some of the Government
servants were working at atop of the building of the Dockyard. One of them negligently dropped
an iron piece on the road. Due to that rod, one of the horses was injured. The plaintiff-company
sued the Government claiming for damages of Rs. 350/-. The Secretary of State-Defendant
pleaded the defence of sovereign immunity, and argued that the suit was not maintainable.
India?
What was the decision of the Court?
96.
A jeep was maintained and used by the District Collector. The jeep driver drove the jeep in a
rash and negligent manner and caused an accident resuited the death of the husband of the
plaintiff/respondent. The widow sued the State Government for damages. The State
Government pleaded the Defence of Sovereign Immunity.
What was the decision of the Court?
97.
Ralia Ram was one of the partners of Kasturi Lai Ralia Ram Jain, at Amritsar. He went to
Meerut to sell gold and silver on 20-9-1947. While.he was in the market, the police suspected
that he was carrying stolen gold, and arrested him, and seized 103 tolas of gold and 2 maunds
of silver. He was kept under police custody. Next day he was released. He proved the
genuineness of gold and silver in the Court. Meanwhile, the police Head Constable Mohammad
Amir misappropriated the gold and fled to Pakistan in October, 1947. The silver was given
back to the plaintiff, but the gold was not given back, as it was taken away by the Head Constable.
The plaintiff sued the State Government claiming the return of 103 tolas of gold or the
compensation of the gold equivalent to Rs. 11,000/-. What was the decision of the Court?
98.
The goods of the respondent were seized by the Customs Authorities under the Customs Act,
1962 apprehending that those were smuggled goods. The respondent filed an appeal. During
the pendency of the appeal, the Customs authorities sold away those goods in a public auction
after obtaining an Order from the Magistrate. The appeal of the respondent was allowed. The
appellate Court ordered the customs authorities to return the goods. As they already sold
them, they failed to return. The respondent sued them for damages. The State Government
pleaded the defence of sovereign immunity. What was
99.
the decision of the Court?
Certain ornaments of the plaintiff-appellant were stolen. The police recovered them and produced
before the criminal Court. The Court gave those ornaments to one of the public authorities for
safe custody until the final disposal of the proceedings. The public authority misappropriated
the ornaments. After disposal of the proceedings, the piaintiff made an application to the trial
Court for the return of her ornaments, but the said authority failed to return the ornaments.
Following the ruling in Kasturilal’s case, the trial Court held that under the defence of sovereign
immunity the act of public authority could not be questioned and she was not entitled for the
return of ornaments. Finally she reached to the Apex Court. What was the Supreme Court’s
decision?
100.
A, a military driver, while transporting in a lorry, a machine for locating enemy guns, from the
repairs house to the Artillery School, where it was used, knocked down and killed B. B’s widow
files a suit for darriages against the Government of India,'which pleads sovereign Immunity.
Will B’s widow succeed in her claim?
101
2.C.
JOINT LIABILITY / JOINT TORT-FEASOR
iol.
What is the meaning of ‘Tort-feasor’?
102.
What is the meaning of ‘Independent Tort-feasors’?
103.
What is the meaning of the ‘Joint Tort-feasors’?
Unit - II; Parties to the Proceedings
77
(b) Liability towards a Licensee: When the occupier of the premises and the visitor has no common
interest, such visitor is called as a ‘Licensee’. Aguest who has been invited fora dinner is a licensee.
The iicensee eriters the premises, with the express or impiied permission of the occupier, for his own
purpose or for the occupier’s purpose. The occupier has a duty to give due warning of any ‘latent
defect’ or ‘concealed danger’ in the premises of which ‘he is aware’. He has no liability for the loss
or injury caused by dangers not known to him.
Fairman vs. Perpetual Investment Building Society (1923 AC 74)
(Liability to Dangerous Premises)
The plaintiff went to her sister’s house, which belonged to the defendant. Some depression was
made on the stair case. The plaintiff did not see that depression. She put her step on the depression,
and fell down from the staircase, and injured. She sued the defendant. The Court held that generally
the defendants in similar Instances were held liable. Here in the instant case, the defendants were not
held liable, as the defect in the stair case was not latent, and the danger was obvjous and could have
been observed by the plaintiff.
—
Roles vs. Nathan (1963) 1 W.L.R. 1117)
(Liability to Dangerous Premises)
The defendant was the occupier of a building certainly heated by a coke-fired boiler. He engaged two
chimney sweepers to seal up a sweep hole in the chimney and also warned them the danger of
dangerous gases. The two workers were killed by carbon monoxide gas. The Court held that as there
was no breach of duty, on the part of the defendant for which he could be made liable,
(c) Liability of the occupiers of structures adjoining Highway: The occupier of the building
adjacent to National Highway must take care, and maintain it in a proper and fit way, so that no harm or
danger should occur to the users of the highway,
Kaiiuiai vs. Hemchand (AIR 1958 Mad. 48)
(Liability to Dangerous Premises)
The appellant was the house owner, whose house was adjoined to a highway. On 25-08-1947 evening,
rain occurred. Southern wall of the house was collapsed and a six years boy was dead. The appellant
contended that it was an Act of God. The Court held that the appellant was responsible.
Noble vs. Harrison (1926) 2 KB 332)
(Liability to Dangerous Premises)
The branch of a huge tree, which was growing on the defendant’s land and overhanging on a highway,
suddenly broke off, and fell on the plaintiff’s vehicle passing along the highway. The defendants were
not held liable.
Nagamani vs. Corporation of Madras (AIR 1956 Mad. 59)
(Liability to Dangerous Premises)
While the plaintiff was going on a Highway, ventilator post of Corporation fell on him, causing severe
injuries. The iron post was fitted 30 years ago by the Corporation. Whereas the original lifeof the post
was 50 years. It was periodically checked. There were other posts, which were intact. The Corporation
took all appropriate and needy steps to prevent from falling. In spite of their care and attention, the
plaintiff was injured. The Court held that the Corporation was not held liable, as it took all genuine and
appropriate steps to prevent harm.
# Subhagwantl vs. Municipal Corporation of (AIR 1966 SC 1750)
(Liability to Dangerous Premises)
The clock tower was constructed with lime mortar some 80 years ago. It was maintained by Municipal
Corporation of Delhi. The building was deteriorated. Corporation did not take appropriate steps to
safeguard the clock tower. It collapsed, causing death of several persons. The Supreme Court held
that the Municipal Corporation of Delhi was held responsible.
2.
LIABILITY TOWARDS TRESPASSERS
(SN)
One who goes upon another’s land or premises or structures without invitation of any sort and whose
presence is either unknown to the proprietor, or, if known, is particularly objected to such entrance, is
called as a‘trespasser’.
The Law of Torts
78
Mokshada Sundari VS. Union of India (AIR 1971 Cal. 480)
•
(Liability to Dangerous Premises - Trespassers)
The plaintiff’s husband was a regular railway passenger, having monthly railway ticket. While he was
going to railway office, he had chosen a way prohibited for passengers, to get renewed his ticket.
While he was crossing the railway line, in the prohibited area, a train dashed him causing his death.
The plaintiff sued for damages. The Court held that the plaintiff was not entitled to get the damage,
because the deceased trespassed.
Lowery vs. Walker (1911 AC 10)
(Liability to Dangerous Premises - Trespassers)
The defendant was the land owner. People used some of his land as way. For 30 years, the defendant
did not take any effective steps to prevent the people from passing from his land. All of a sudden, one
day, he put his savage horse in the way with an intention to threaten the people. The horse caused
serious injuries to the plaintiff. The Court held that the defendant was liable.
Mourton vs. Poulter (1930) 2 KB 183 191)
(Liability to Dangerous Premises - Trespassers)
The defendant was cutting down a tree in his own land. Some children were playing there. He did not
warn them. The tree fell down causing serious injuries to some of the children. He contended that the
children were trespassers. The Court of Appeal held that the defendant was held liable.
Cherubin vs. State of Bihar (AIR 1964 SC 205)
(Liability to Dangerous Premises - Trespassers)
The defendant had fixed naked electric wires around his land with an intention to prevent the trespassers
who used his land as latrine. No notice or no warning was displayed by the defendant. Aperson, who
visited the land, died due to electric shock.
The Court held that the defendant was liable for the
offence.
3.
LIABILITIES TOWARDS CHILDREN
(SN)
The children do not get the puberty of mind. Where the adults are very cautious, there the children are
very lenient and negligent due to their innocence and childhood. Moreover they will be attracted to
dangerous things. The occupier has to take more care
with the child visitors.
PROBLEM: A, a boy, dies as a result of eating the berries of a poisonous shrub in a Municipality’s
botanic garden, which was open to the public. The Municipality knew the berries to be poisonous, but
had put no warning. Can the father of the deceased boy sue the Municipality? (Nov., 2000, S.K.U.)
SOLUTION: Yes. The Municipality is liable to pay damages to the father of the boy. The facts of the
problem are identical with “Glassgow Corporation vs. Taylor” Case, discussed hereunder:—
# Glassgow Corporation vs. Taylor (1922) 1 AC 44)
(Dangerous Premises - Children)
The Corporation maintained a public park. There was a dangerous poisonous berries tree in it. A child
ate the fruits of that poisonous tree and died. The Corporation did not warn the children. They did not
arrange guards around that tree. It was their least duty to remove that poisonous tree in that public
park where the innocent children accumulated. The Court of Appeal held that the defendants were
liable.
Cooke vs. Midland Great Western Railway of Ireland (1909 AC 229)
(Dangerous Premises - Children)
The defendants were a Railway Company. They kept a turn-table on their land. Children of the vicinity
used to pass through a gap in the fence and played with that turn-table. The employees orthe owners
of the company did irot warn the children, and they did not close the gap in the fence. While playing, a
child of 4 years was injured. The House of Lords held that the defendants company was held liable.
Note: # Marked cases are very important. These are prescribed and leading CaseLaws. Essay Questions, Short Notes or Problems may be asked basing upon the
Case-Laws. Student is advised to memorise the Case-Laws, whether prescribed
-GVR
or not perfectly.
Unit - II: Parties to the Proceedings
79
UNIT - II
PARTIES TO THE PROCEEDINGS
I "r:/
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MUCH USEFUL FOR THE BAR C^OUNCIL
I ENROLMENT ELIGIBILITY TEST, PUBLIC PROSECUTORS’ TEST ’
I EXAMINATIONS, AND OTHER COMPETITIVE EXAMINATIONS
I SHORT/MINI QUESTIONS AND FILL UP THE BLANKS WILL ALSO
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[^JUBJECT ENTIRE SUBJECT SHOULD BE IN YOUR MEMORY AND
2.A.
2.A.(i).
PARTIES TO THE PROCEEDINGS
PERSONAL CAPACITY / “Every person has
the capacity to sue and be sued in tort.”
1.
2.
3.
4.
What is meant by‘Personal Capacity’?
What is the General Principle of Suing?
Who are exempted from the General Principle of Suing?
Which Section of C.P.C. does prescribe the procedure to obtain the consent for certain category
of persons to sue?
5.
Who are persons exempted from suing under the C.P.C.?
6.
A bus was plunged ifito a river on collapse of culvert on the highway. Are the HighwayAuthorities
7.
The defendant failed to keep proper lighting on the highway, due to which an accident occurred
and the plaintiff received injuries. Is the authority liable?
2.A.(ii).
CORPORATION
8.
Is a corporation person? How does a corporation function?
9.
Can a corporation sue oh its own name?
10.
The defendant-a metropolitan borough constructed a stand on highway to enable the members
of Council and their friends to see the King Edward-VII’s funeral procession. This stand was
quite opposite to the plaintiff’s house. The plaintiff had collected some money from the intending
parties to view the funeral ceremony and arranged seats for them. As a result of the stand
instructed by Council, the plaintiff and her paying guests could not view the funeral procession
The plaintiff sued the defendant. The defendant argued that the stand was constructed as per
the resolution. Decide.
2.A.(iii).
Mocpci
MINORS AND LUNATICS
MINORS
11.
Who is a minor?
12.
Which section does provide the ability of the minor?
13.
Can a minor sue the tort-feasor?
14.
Which is the leading case-law on the minors?
'
The Law of Torts
80
15.
A child aged 3 years dragged another child aged 3 years for several feet, and caused serious
injuries. Is the minor held liable?
16.
A minor aged. 12 thrown a metallic dart towards a post, which hit another girl aged 12 years. Is
the minor held liable?
17.
A minor attacked and assaulted an innocent person. Is the minor responsible?
18.
X, a minor boy, hired a mare for ride. The owner of mare cautioned him that mare would not be
made to jump. But X made it to jump and mare was hurt. Explain the liability of Mr. X, if he is
liable?
19.
The father sent his minor son for a work and handed over his cart and horse to him. The minor
negligently drove the horse-van and caused injury to
20.
the defendant. Is the minor liable?
The fathergave an air-gun to his son, who negligently and innocently used it, and caused injury
to the defendant. Who is responsible?
21.
A child of 7 years age trespassed into the premises of the plaintiff. He did not heed the words
of the plaintiff. Is the minor responsible?
22.
What is meant by the Doctrine of Restitution?
23.
Lord Sumner said: “Restitution stops where
LUNATICS
24.
Is a lunatic responsible for the tortuous act done by him?
25.
What is the liability of the lunatics under the criminal law? What are the M’Naughten’s
Principles?
■26
2.A.(iv).
ALIEN ENEMIES AND CONVICTS
26.
What is meant by “Alien Enemy”?
27.
What is the position of ‘Alien Enemy’ in England?
28.
What is the position of ‘Alien Enemies’ in India?
29.
What is the meaning of ’Convict’?
30.
What is the position of convicts in England and India?
31.
The plaintiff was a Naxalite, and prisoned in Visakhapatnam Jail. He contended that armed
police guards, live-wire electrical mechanism, etc. were depriving his fundamental rights.
32.
The accused-prisoner requested the State to provide him free legal aid, which failed. Is he
entitled for free legal aid?
33.
The prisoner-accused contended that he was tortured by the police, and third-degree was
used against him. Can he sue the State?
■34
GENERAL DEFENCES TO AN ACTION IN TORTS
2.B.
of Torts?
34.
What is meant by the General Defences and Justification
35.
Give the definition given by Sir Frederick‘Pollock.
36.
What are the General Defences or Justification of Torts?
37.
“Nulius commodum capere potest de injuria sua propria.”— Give the meaning.
38.
Give the meaning of “Ex turpi causa non oritur action”.
39.
Ais the wife of B. C induces Ato divorce B, and gives Rs. 50,000/-to A. Adoes not give divorce
to B, and remains vi/ith B. Can C sue A forthe recovery of Rs. 50,000/-.
40.
A possesses a citizen watch. B steals it from A. From B, G steals. A sues B and C. Can B
sue C?
41.
A-a thief enters into the house of B in a night to steal B’s property. B notices A, and hits with
club. Can A sue B for the tort of assault committed by B?
Unit - II: Parties to the Proceedings
85
104.
What is the meaning of the ‘Composite Tort-feasors’?
105.
The defendant wrote a defamatory letter containing contents against the plaintiff, and he sent
two copies - one “The Villager” magazine of Pinner Association; and another to the officer of
Pinner Association. The Villager magazine published the letter. The plaintiff sued the editor of
the village, the officials of Pinner Association and the defendant for defamation. The editor of
the village and the officials of Pinner Association compromised with the plaintiff and published
apology in “The Villager”. On compromise, the editor of the village, and the officials of the
Pinner Association were acquitted from the charge. However, the defendant was not acquitted.
The defendant contended that the release of the other joint tort-feasors amounted to be the
release of him. What was the decision of the Court?
106.
The plaintiff sued several defendants for defamation, and one of them was a minor. The minordefendant requested the plaintiff and made a compromise. The plaintiff and the minor filed a
compromise petition before the Court, and the Court discharged the minor. Remaining
defendants pleaded that since one of the joint tort-feasors discharged, they were also entitled
to be discharged from the liability. Does such release proper?
107.
What is meant by contribution between joint tort-feasors?
108.
Five partners executed an agreement on 30-8-1925 in favour of the forest owner to cut and take
away the wood. They started cutting the wood, and continued for 16 months. There were
certain violations in the performance of the contract. The forest owner sued them, and
succeeded in getting a decree against them restraining their activities and also for the
compensation. One of the five partners paid the compensation. Later he demanded remaining
partners for the contribution, who refused. He sued them. The four partners pleaded the rule of
Merryweather vs. Nixan’s case as their defence. Can they succeed?
109-
2.D.(i).
VICARIOUS LIABILITY
109.
What is meant by ‘Vicarious Liabiiity’?
110.
Give the examples for ‘vicarious liabiiity’.
111.
What is meant ‘Liability of the Principal for the tort of his jagent’?
112.
What is the meaning of “Qui facitperalium facitperse.
113.
What is meant by ‘Liability of partners for each other’s
114.
What is meant by ‘Liability of the Master for the tort
115.
What is meant by ‘Liability of the State for its servants’?
tort’?
of his servant’?
■116-
2.D.(li).
VICARIOUS LIABILITY OF A MASTER FOR
HIS SERVANT’S TORTUOUS ACT
116.
What are the conditions applied for ‘Vicarious liability
117.
A, managing clerk of Lawyers’ firm, fraudulently got client B to sign some documents executing
the sale of her properties to him. A made her to believe that she signed her will. After realising
the fraud, B sued lawyer’s firm which pleaded ignorance of As fraud. Is the firm liable?
118.
Four coats were entrusted by the plaintiff to the defendant company for cleaning. The defendant
company handed over them to their employee Morrisey, who stole them. Is the defendant
company liable to the plaintiff?
119.
The defendant railway company appointed certain persons to facilitate the passengers to get
their correct train. The plaintiff purchased ticket and sat in a correct train to the destination to
which he wanted to go. The employee of the defendant company had mistaken that the plaintiff
was going in a wrong train, and asked him to come down. The plaintiff refused. The employee
pulled him. As a result, the plaintiff received injuries. Is the defendant company liable to the
plaintiff?
120.
In peculiar circumstances one lends his servant to
driver.
of a master’?
others.
C takes As car and driver on hire for one month.
A is the owner of a car.
B is the
During this period, B commits an
accident to D. Who is the real owner of B? Whom D shall have to sue?
The Law of Torts
86
121.
A, the driver.of a petrol lorry, employed by the owner of the lorry B. While transferring petrol
from the lorry to an underground tank in the C’s petrol bunk struck a match to light a cigarette
and threw it on the floor and thereby caused a conflagration and an explosion took piace and
damaged C’s petrol bunk and his property. Discuss about the liabiiity of Aand B.
122.
The appellants-Mersey Docks & Harbour Board had many nnobile cranes and skiiied drivers/
operators to operate them. They used to give them on hire. The defendants-Coggins & Griffiths
(Liverpool) Ltd. hired one mobiie Crane including the operator to load a ship. While loading the
ship, due to the negligence of the operator/driver, X was injured. The question arose upon
whom the vicarious liability shouid be imposed. The trial Court gave the judgment that Coggins
& Griffiths (Liverpool) Ltd. were liable. What was the decision of the Appellate Court?
123.
The plaintiff was suffering from a contraction of third and fourth fingers of his left hand. He
admitted in the defendant’s hospital. A surgeon of it operated with the help of other staff. After
the operation, the surgeon and the staff bandaged the piaintiff’s hand and forearm to a spiint.
They remained so for fourteen days. During these fourteen days, the plaintiff had been reporting
the staff and doctors that he couid not bear the pain. Nobody had taken interest or action to
reduce his pain, except the administration of sedatives. After 14 days, when bandages were
removed, it was found that all fourfingers of the plaintiff’s hand were stiff and that the hand was
practically useless. The plaintiff sued the hospital authorities. What was the decision of the
Court?
124.
When the employer is not heid liable?
125.
The defendant took the plaintiff’s shed on iease for his carpentry works. A carpenter, the
defendant’s worker iighted a cigar and negligently threw it. As a resuit the piaintiff’s shed was
burnt. The piaintiff sued the defendant for compensation. Discuss.
126.
The defendant’s servant was a petrol lorry driver. While transporting the petrol, he lighted
cigarette, resulting damage to another’s property. Discuss.
127.
A gave certain sum of money and cheque to an employee of the bank to be credited to his
account. The employee misappropriated the entire amount. A sued the bank for damages.
Will he succeed?
128.
At a halt in the journey, the driver went to a hotel to take his meals. In the absence of the driver,
the conductor drove the-bus for a while, and caused accident. Discuss.
129.
The driver of the bus allowed conductor to drive. While driving the bus, conductor dashed a
rickshaw resulted the death of rickshaw passenger.
Who is liable?
130.
The defendants were a big contracting company. They undertook to construct buildings. They
provided lorries for conveying their employees from their residence to the work-spots. They
orally instructed the drivers not to give lift to any third parties. They also affixed notices in every
lorry that others should not travel in the lorry, and the lorry was meant only for conveying the
defendant company’s workers and that if any one travelled, it was his own risk. One of the
drivers took the plaintiff-Conway in his lorry. Conway was an employee of another company,
and not concerned with the defendant company. The driver caused an accident, resulting
injuries to the plaintiff. The plaintiff sued the defendant for compensation. Decide.
131.
The driver of a Government jeep Was taking back the jeep from garage to the office. In his way,
he allowed a third party-the husband of Premwati. After a while, the'jeep driver caused an
accident, resulted the death of the husband of Premawati. Discuss.
132.
Rule 460 of Punjab Motor Vehicle Rules 1940 provides that the driver should not give lift to
any unauthorised person. In the above case, the driver gave lift to the husband of Prithi Singh.
Due to negligent driving of the driver, an accident took place, and the husband of Prithi Singh
died. She sued the owner of the vehicle. Decide.
133.
What is meant by the Doctrine of Common Employment? What is the position of this doctrine
in England and India?
134
2.D.(iii).
VICARIOUS LIABILITY OF A MASTER FOR HIS
INDEPENDENT CONTRACTOR’S TORTUOUS ACT
134.
What is meant by an ‘Independent Contractor’?
135.
Who is a ‘servant’?
Unit - II: Parties to the Proceedings
136.
87
The defendant company had entrusted the management of lift to an independent contractor.
The plaintiff was injured when he fell down from an open lift shaft. He sued the defendant. Will
he succeed?
137.
The ownerof a lorry entrusted it to a repairer for getting it repaired. While it was in the custody
of the repairer, one of the employees of the repairer drove the lorry, and caused an accident
driving the lorry negligently. The injured sued the ownerfor compensation.
138.
The defendant had placed a contract to an independent contractor to attach an overhanging
lamp to his house. The contractor did the same. Due to lose fitting, it was fallen on the plaintiffs
head, causing serious injuries to him. Decide.
139.
B had employed an independent contractor to erect a grand stand for the purpose of viewing
the horse-race. B charged each spectatorfive shilling for admission to the stand. A, who had
legally entered the stand, was injured by its collapse. A files a suit against B for damages.
Discuss.
140.
There are supports from As house/land to B’s house, and B’s house is depended upon these
supports. Does A have right to withdraw the support from his land?
141
2.D.(iv).
VICARIOUS LIABILITY OF THE STATE
141.
What is the meaning of “Rex non potestpeccare”?
142.
What is the position of vicarious liability of the
143.
The driver of a lorry belonging to the Public Works Department caused an accident, while
transporting the material to the work spot. The injured-plaintif f sued the State Government for
State in India?
compensation. Discuss.
144.
A, a Government jeep driver, while driving the government jeep knocked against a pole and also
injured four pedestrians. Exapiine the liability of A and the Government in this regard.
145.
The husband of the plaintiff was hit by the driver of a Government jeep due to the rash and
negligent driving.
146.
The plaintiff owned a bus. He parked it in a wrong place, which was prohibited by the traffic
officials. The traffic authorities with the assistance of the municipal staff removed the bus.
Discuss.
147.
The police attacked an unruly mob to establish the peace in that area. The S.D.O. ordered lathi
charge against unruly mob. The police had beaten the members of unruly mob and also
bystanders, including the plaintiff who was not a member of unruly mob. The plaintiff received
injuries. He sued the State Government for compensation.
148.
The police lathi charged an unruly mob of the students. In that agitation the students hired the
loud speaker of the plaintiff. In the lathi charge, the plaintiff’s loud speaker was damaged. He
sued the State Government for compensation.
149.
A serious agitation was taken against ‘Hindi’ in the Punjab State. The Police arrested some of
the agitators, including the plaintiff. They confined agitators in a bus and ordered the driver to
take them to an unknown destination, instead of presenting them before the Magistrate. While
driving the bus, driver caused an accident. Plaintiff and others seriously injured. The plaintiff
sued the State Government for compensation. Decide.
150.
Air Force personnel played the game and returned by a bus. The bus driver drove the bus
negligently causing the death of the husband of Satyawati Devi. The Central Government
pleaded that the accident was occurred during the sovereign function and that too for defence
purpose.
151.
Some property was stolen from the plaintiff, who reported to the Police Station, Malkahan. The
police recovered the stolen property from the thief. While in the custody of the police, the stolen
property was again stolen. The owner of the goods sued the State for compensation. Is the
State liable?
152.
The customs officers, seized Memon Mahomed’s truck
and the goods in it under a bias that
they were smuggled. They produced them before the magistrate and falsely represented that
they were smuggled goods. The magistrate ordered the customs officers to seize the goods
and truck, and to keep them under their dontrbl, until the tinal orders disposed. The plaintiff
proved that they were not smuggled goods and duty paid one, and also the rrialicious prosecution
The Law of Torts
88
of the customs officer. The Revenue Tribunal ordered the customs officers to return the truck
and goods to the owner. The Customs officers failed
to return. Discuss.
153.
About 700 poor villagers gathered in a village and had been conducting a peaceful meeting.
The Superintendent of Police attacked with his personnel, and fired them without giving any
warning, and without knowing the real facts. As a result of firing 21 persons including children
died. The People’s Union for Democratic Rights, a registered society filed a petition under
Article 32 before the Supreme Court to do justice. What was judgment of the Supreme Court?
154.
The plaintiff was an accused in a case, and was acquitted by the Court of Sessions on 3-61968. In spite of the orders of Court of Sessions, he was detained in the jail up to 1982. He filed
a Habeas Corpus petition on 16-10-1982 for releasing him and also to pay the compensation.
Decide.
155.
A blind man falls into a man hole kept open by the Municipality and is injured. The man-hole was
unguarded but two red lanterns were kept by its side. Discuss the liability of the Municipality.
156.
The son of the plaintiff fell in a ten feet deep sewerage tank of municipality, which was kept open
negligently, and died; The plaintiff sued the State
Government. Discuss.
157
THE RULE OF STRICT LIABILITY (Rylands vs. Fletcher)
2.E.
157.
What is the meaning of "S/c utere tuo ut alienum non
laedas”?
158.
What is the object of the Doctrine of Strict Liability (The Rule in Rylands vs. Fletcher)?
159.
neighbour dug a well on his land. The Plaintiff
engaged independent contractors who worked carefully and there is no negligence on their
part: Where the plaintiff sued the defendant, defendant was made liable, though he was not at
fault. Explain the rule in the light of decided cases.
160.
What are the exceptions to the Rule of Rylands vs. Fletcher/Strict Liability?
161 ■
Give an example for the plaintiff’s own default.
162.
Give an example for Vis Major/Aci of God.
163.
Give an example for consent of the plaintiff.
164.
Give an example for the act of Third Party.
165.
Give an example for the Statutory Authority.
166.
What is the position of the Rule of “Rylands vs-Fletcher” (Strict Liability) in India?
The Plaintiffs mine was flooded waterwhen his
167
2.F.
THE ABSOLUTE LIABILITY (M.C. Mehta vs. UOI)
167.
What is meant by the Absolute Liability (M.C. Mehta vs. UOI)?
168.
What are the facts of # Union Carbide Corporation vs. Union of India (1991) 4 SCC 584)
(Absolute Liability) (BHOPAL GAS LEAK CASE)?
169.
Explain about # M.C. Mehta vs. Union of India (AIR 1987 SC 965) (OLEUM GAS LEAKAGE
CASE) (Absolute Liability).
170.
What are the principles propounded by the Supreme Court in the Absolute Liability cases?
171.
What are the objects of The Public Liability insurance Act, 1991?
172
OCCUPIER’S LIABILITY
2.G.
172.
Who is an Occupier?
173.
What is meant by the Occupier’s Liability”?
174.
The plaintiff was the gas-fitter. On the request of defendant, he entered into the house of the
defendant for gas fitting. While doing so, he fell from an unfenced opening of the first floor and
was injured. Is defendant liable?
Unit - II: Parties to the Proceedings
89
175.
The plaintiff went to her sister’s house, which belonged to the defendant. Some depression
was made on the stair case. The plaintiff did not see that depression. She put her step on the
depression, and fell down from the staircase, and injured. She sued.the defendant. What was
the judgment of the Court?
176.
The defendant was the occupierof a building certainly heated by a coke-fired boiler. He engaged
two chimney sweepers to seal up a sweep hole in the chimney and also warned them the
danger of dangerous gases. The two workers were killed by carbon monoxide gas. Is the
defendant liable?
177.
The appellant was the house owner, whose house was adjoined to a highway. On 25-08-1947
evening, rain occurred. Southern wall of the house was collapsed and a six years boy was
dead. The appellant contended that it was an Act of God.
178.
The branch of a huge tree, which was growing on the defendant’s land and overhanging on a
highway, suddenly broke off, and fell on the plaintiff’s vehicle passing along the highway. Is the
defendant liable?
179.
While the plaintiff was going on a Highway, ventilator post of the Corporation fell on him, causing
severe injuries. The iron post was fitted 30 years ago by the Corporation. Whereas the original
life of the post was 50 years. It was periodically checked. There were other posts, which were
intact. The Corporation took all appropriate and needy steps to prevent from falling. In spite of
theircare and attention, the plaintiff was injured. The plaintiff sued the Corporation.
180.
The clock tower was constructed with lime mortar some
181.
What are the objects of The Occupiers’ Liability Act, 1957 (England)?
182.
The plaintiff’s husband was a regular railway passenger, having monthly railway ticket. While
he was going to railway office, he had chosen a way prohibited for passengers, to get renewed
his ticket. While he was crossing the railway line, in the prohibited area, a train dashed him
causing his death. The plaintiff sued for damages. Can she succeed?
183.
The defendant was the land owner. People used some of his land as way. For 30 years, the
defendant did not take any effective steps to prevent the people from passing from his land. All
of a sudden, one day, he put his savage horse in the way,with an intention to threaten the
people. The horse caused serious injuries to the plaintiff. Is the defendant liable?
184.
The defendant was cutting down a tree in his own land. Some children were playing there. He
did not warn them. The tree fell down causing serious injuries to some of the children. He
contended that the children were trespassers. Is the defendant liable?
185.
The defendant had fixed naked electric wires around his land with an intention to prevent the
80 years ago. It was maintained by
Municipal Corporation of Delhi. The building was deteriorated. Corporation did not take appropriate
steps to safeguard the clock tower. It collapsed, causing death of several persons. Is the
Municipal Corporation liable?
trespassers who used his land as latrine. No notice or no warning was displayed by the
defendant. A person, who visited the land, died due to electric shock. Is defendant liable?
186.
A, a boy, dies as a result of eating the berries of a poisonous shrub in a Municipality’s botanic
garden, which was open to the public. The Municipality knew the berries to be poisonous, but
had put no warning. Can the father of the deceased boy sue the Municipality?
187.
The defendants were a Railway Company. They kept a turn-table on their land. The children of
the vicinity used to pass through a gap in the fence and played with that turn-table; The employees
or the owners of the company did not warn the children, and they did not close the gap in the
fence. While playing, a child of 4 years was injured. Are the defendants liable?
Note : Sections and Illustrations are very important. PROBLEMS may be asked basing
on the Sections and Illustrations. I have given all important Sections including Illustrations.
The Student is advised to memorise Sections and Illustrations perfectly. If the student
answers correctly, he can get 10 marks out of 10 marks correctly, he can get 10 marks out
of 10 marks for problem solving. Further, the student is not for problem solving. Further,
the student is not required to purchase Bare.Acts separately, as this book contains all
important Sections and Illustrations. - GVR.
The Law of Torts
90
ANSWERS
PARTIES TO THE PROCEEDINGS
2.A.
2.A.(i).
PERSONAL CAPACITY / “Every person has
the capacity to sue and be sued in tort.
1.
“Every person has the capacity to sue and be sued in
2.
It is the general principle that “every person has the capacity to sue and be sued in tort”.
3.
There are certain persons exempted from this general rule. These persons have no capacity
to sue and be sued on their names in torts. They are: (1) Sovereign immunity: A State is
different sovereign with another. When a tortuous act is committed by a State in its sovereignty,
the municipal courts and other States cannot entertain any suits against that State. Those acts
are called “Act of State”. (2) Ambassadors: The Vienna Convention on Dipiomatic
Reiations, 1961 confers certain privileges and immunities to diplomatic representatives,
tort.”
ambassadors.
4.
Section 86 of the Civii Procedure Code, 1908 provides the lengthy procedure for obtaining
the consent. Practically, the Central Government has not given any such consent up to now.
Generally, the Central Government asks the ambassadors, diplomatic representatives to leave
the country if any of such persons does any tortuous acts against Indian people in India.
5.
The following persons are exempted from suing under the C.P.C.: (1) Sovereigns, (2)
Ambassadors, (3) Former Rulers of Indian Territory, (4) Unincorporated Associations, (5) Trade
Unions, (6) Insolvents, (7) Highway Authorities, etc.
6.
In S. Vedantacharya vs. Highway Department of South Arcot (1987) 3 SCC 400), the
Supreme Court held the Highways Department of Tamil Nadu was liable for its negligence for
non-providing the safety-measures.
7.
In Dr. C. B. Singh vs. the Cantonment Board, Agra (1974 ACJ 248), the Supreme Court held
the defendant liable.
■8
2.A.(ii).
CORPORATION
8.
A corporation is a person. However, it is not a physical person. But it is a fictitious, artificial,
juristic person. It can sue and can be sued. A corporation can be held liable for its tortuous
liability. A corporation is liable both for ultra vires an6 intra wres torts. A corporation is a juristic
person, but cannot perform its duties and rights itself. The human beings, viz. its managing
director, directors, secretaries, etc. perform the duties of a corporation on behalf of it. A resolution
passed by the majority members of a corporation represents the will of the corporation.
9.
A corporation can sue any tort-feasor who did any tortuous acts against the property of the
corporation. Similarly, a corporation can also be sued for trespass, libel, trover, conversion,
negligence, malicious prosecution, fraudulent misrepresentation, etc.
10.
In Campbell Vs. Paddington Corporation (1911) 1 K.B. 869), the Kings Bench held that the
defendant-corporation had no irght to violate the private rights, and therefore, they were liable to
pay compensation to the plaintiff.
11
2.A.(iii).
MINORS AND LUNATICS
MINORS
11.
Section 3 of the Indian Majority Act, 1875 defines minority that every person domiciled in
India shall be deemed to have attained his majority when he shall have completed his age of
eighteen years, and not before. If a guardian or ward is appointed by a Court to superintendent
the property of a minor, in such a case, he attains majority when he completes the age of
twenty one years.
12.
Sections 10 and 11 of the Indian Contract Act, 1872 say that a contract entered by a minor is
void ab/n/f/o.
Unit - II; Parties to the Proceedings
91
13.
A minor can sue the tort-feasor. However, he cannot sue the tort-feasor directly. He can sue
through his next-friend, i.e. mother or father. A child in fetus can also sue for the pre-natal
injuries and injustices.
14.
Mohlribibi vs. Dharmodas” (1903 PC) case.
15.
In Tillander vs. Gosselin (1967 ACJ 306), the Court did not impose any tortuous liability,
opining that the child did it with innocence, but not with negligence or malice.
16.
In Me Hale vs. Watson (1966) 115 CLR199), the Court acquitted the minor opining that there
was no negligence on the part of the minor.
17.
In Swaroopkishore vs. Gowardhandas (1955 MB 355), the
18.
X is liable. The facts of the problem are identical with Burnard vs. Haggis.
19.
In Gibson vs. O’Keeney (1928 Nl 66), the Court held
Court held the minor was liable..
that the fatherwas liable forthe minor’s
acts.
20.
In Bebee vs. Sales (1916) 32 TLR 413), the Court held that the fatherwas responsible.
21.
In O’Brien vs. Mcnamee (1953) Lr.R. 86), the Court held that a minor is responsible for a
trespass like a person of full age.
22.
If a minor falsely represents his age, and obtains any property, and appropriates it, he is liable to
restore it. It is called “the Doctrine of Restitution.
23.
”
Lord Sumner said: “Restitution stops where repayment begins.”
LUNATICS
24.
A lunatic is not competent to contract according to Section 10 of the Indian Contract Act,
1872. Section 12 of the said Act defines “Lunacy”. Lunacy/Insanity is a good defence in the
criminal law. However, in the law of torts, insanity is not a good ground to escape tortuous
liability. A lunatic can be held liable if his acts resulted into tortuous to others.
25.
Section 84 of the Indian Penal Code, 1860 exempts the insane persons from criminal liability.
In M’Naughten’s case, the House of Lords formulated certain principles of criminal liability of
insane persons known as the M’Naughter’s Principles. In criminal liability, “mens rea” is an
essential element. But it is not necessary in tortuous liability. The physical acts constitute injury
to the plaintiff, and therefore a lunatic can be held liable, and he can be ordered to make the
compensation to the injured.
■26
2.A.(iv).
ALIEN ENEMIES AND CONVICTS
26.
“Alien Enemy” means a person who by reason of owing a permanent or temporary allegiance
to a hostile power, becomes, in time of war, impressed with the character of an enemy.
27.
If England declares war with any country, the persons of that country are declared as alien
enemies. For example: England declared wars against France, Algeria, Germany, Albania,
Italy, Egypt, etc. before the Second World War. If England declared war against France, then
the people of France become as alien enemies to England. If such alien enemies are carrying
business, in England at the time of the declaration of the war, those alien enemies are not
entitled to continue the business, and also are not entitled to sue orto be sued. Even the British
nationals who reside or carry business with hostile
countries are treated as alien enemies.
28.
Only Pakistan and China are hostile countries to India. Even then, India wants to reduce the
tensions with her neighbouring countries. Section 83 of the Civil Procedure Code, 1908 lays
down the provisions regarding aliens. According to this Section, the aliens may sue. (This
Section and the entire Code were enacted during the British reign.) This section lays down that
alien enemies residing in India with the pentiission of the Central Government, and alien friends,
may sue in any Court othenviSe competent to try the suit, as if they were citizens of India, but
alien enemies residing in India without such permission, or residing in a foreign country, shall
not sue in any such Court. Expilanation to this section clarifies that every person residing in a
foreign country, the Government of which is at war with India and carrying on business in that
country without a licence in that behalf granted by the Ceritral Government, shall, for the purpose
of this Section, be deerhed to be an alien enemy residing in a foreign country.
29.
Convict is one who has been condemned by a competent Court. A person, who has been
convicted of a crime or misdemeanour.
The Law of Torts
92
30.
According to the English law, a convict enjoys all civil rights, even though he is punished for his
criminal liability, and is put in prison. The same position is in the Indian Law. Article 21 of the
Indian Constitution says that no person shall be deprived of his life or personal liberty except
according to procedure established by law. This fundamental right is extended to the convicts
also. A convict can sue or can be sued for any tortuous liability.
31.
In D.B.M. Patnaik vs. State of A.P. (AIR 1974 SC 2092), the Supreme Court held that he was
not tortured by these arrangements, which were necessary according to Prisoners Act.
32.
In Suk Das vs. Union Territory of Arunachal Pradesh (1986) 25 SCC 401), the Supreme
Court held that the prisoner was entitled for free legal aid.
33.
In Kishore Singh vs. State of Rajasthan (AIR 1981 SC 625), the Supreme Court held that
the use of third-degree was against the principles of natural justice, and also to the provisions
of Article 21, and the State\vas held liable.
•34
GENERAL DEFENCES TO AN ACTION IN TORTS
2.B.
34.
When the defendant causes harm or injury to the plaintiff, the plaintiff has a right of remedy by
way of compensation in Law of Torts. However, in certain circumstances, the plaintiff could not
get success, even though he successfully proves his injury. The defendant pleads certain
grounds for the justification of torts he caused to the plaintiff or to the property of the plaintiff.
These are called the “General Defences of Tortuous Liability” or “Justification of Torts”.
Underthese grounds, the defendant is excused.
35.
Sir Frederick Pollock explains them: “The rules of immunity which limit the rules of liability.
There are various conditions which, when present, will prevent an act from being wrongful which
in their absence would be a wrong. Under such conditions the act is said to be justified or
excused. And when an act is said in general terms to be wrongful, it is assumed that no such
qualifying condition exists.”
36.
The General Defences or Justification of Torts are: (1) Volenti non fit injuria] (2) Plaintiff the
wrong-doer; (3) Inevitable accident; (4) Vis Mayor (Act of God); (5) Private Defence; (6) Mistake;
(7) Necessity; (8) Statutory Authority; (9) Judicial Acts; (10) Parental and Quasi-parental authorities;
(11) Dilatory Defence; and (12) Contributory negligence.
37.
This legal maxim means “No man can take advantage of his own wrong.
38.
“From an immoral cause no action arises.
39.
C cannot sue A for the recovery of the sum, because C himself is a wrong-doer.
40.
But B cannot sue C or A, being himself is a wrong-doer.
41.
A cannot sue B for the tort of assault committed by
42.
99
B.
In Ramanuja Mudali vs. M. Gangan (AIR 1984 Mad. 103), the Madras High Court held the
defendant liable.
43.
In Collins vs. Renison (1 Sayer 138), the Court held
that the defendant used excessive and
unreasonable force, and therefore, he was held liable.
44.
This legal maxim means “Ignorance of fact can be excused, but ignorance of the law could not
be excused.”
45.
Generally in Law of Torts, neither the mistake of fact nor the mistake of iaw stands as a good
defence.
46.
C can plead that he was mistaken that the amount was paid by D. C has to refund the amount
to A. However, he cannot be guilty for conversion.
47.
The parents and the teachers are empowered to punish the children. HoWeverthe punishment
must be reasonable and moderate. The Children and Young Persons Act, 1933 (England)
prohibits the serious corporal punishments against the children. If a school boy is seen smoking,
the teacher can beat slightly the boy with a cane. The punishment given to reform the boy is
justified. However, the punishment should not be severe.
48.
“Dilatory Pleas” are distinguished from pleas to the action, and are defined to be such as tend
merely to delay or put off the suit by questioning the propriety of the remedy, rather than by
denying the injury; whereas pleas to the action are such as dispute the cause of action.” [Law
Lexicon - Ramanath Iyer] “Dilatory Defence” intended to defeat or delay or pending action
without touching the merits of the case.”
49-
Unit - II : Parties to the Proceedings
2.B.(b).
49.
93
VOLENTI NON FIT INJURIA
This legal maxim means: "No consent can legalise an unlawful act.”or "Damage suffered by
consent is not a cause of action.” or "Harm suffered voluntarily does not constitute a legal injury
and is not actionable. ”
50.
No. B cannot claim compensation from A. The reason is that B voluntarily went forward to
rescue, being B’s act comes under "volenti...”
51.
A cannot restrain him, because he himself invited B. However, if B enters further, i.e.,bed
or any other forbidden or private room of A, then B is guilty.
52.
Generally the patients cannot claim compensation from the doctors from operating. However,
if the doctors perform operation in a negligent manner, then they will be held responsible.
Example: Cine Actress Sri Devi’s mother’s case:
room
In this Sri Devi admitted her mother in a
hospital in America for operation, who operated wrongly.
compensation to the patient. It had become worldwide
The American Courts awarded
news.
53.
It is to be observed that the leading word of the maxim starts is “volenti^’ but not “scienti
(knowledge). To escape from the tortuous liability, it is sufficient for the defendant to plead
“volentr (consent). He need not plead the “scientP’ (knowledge). There are degrees of
“scientP’ (knowledge). Even full knowledge that an act is dangerous does not necessarily
render the act tortuous liability, if done, voluntarily.
54.
“Volenti non fit injuria” maxim elucidates two essential legal points, (i) The injured knew
that there was a risk in the act; and (ii) Knowing that there was a risk, he invited it, and
suffered it.
55.
No. In # Hall vs. Brooklands Auto Racing Club (1933) 1 KB 205), the Kings Bench held that
the defendant’s club could not be held liable, as the plaintiff has scienti (knowledge) that any ball
hit by a batsman may fall speedily in the spectators’ place and may hit any person or even the
player in the ground.
56.
In # Hall vs. Brooklands Auto Racing Club (1933) 1 KB 205), the Court gave judgment in
favour of the defendants according to the maxim "Volenti non fit injuria”.
57.
In Wooldrige vs. Sumner (1963) 2 Q.B. 43), the Queen Bench rejected his claim according
to this maxim. The Court opined that the plaintiff himself invited the risk, and the defendants
were not held responsible.
58.
59.
The soldiers were not held responsible.
In lllot vs. Wilkes (1820) 3 B & Aid. 304), the Court did not award any compensation to him
according to this maxim.
60.
In # Smith vs. Baker (1891 AC 325), the Appellate Court held that mere knowledge on the part
of the plaintiff was not sufficient. The defendant ought to have taken due care and diligence.
The defendant was held liable.
61.
In # Lane vs. Holloway (1967) 3 All ER 129 CA), the Court gave the judgment holding the
defendant liable. The Court ordered the defendant to pay compensation to the plaintiff. The
Court opined that mere consent of the plaintiff cannot legalise the defendant’s illegal act.
62.
In # Haynes vs. Harwood (1935) 1 K.B. 146), the Kings Bench
held the defendant was liable
to pay compensation to the police officer.
■63-
2.B.(c).
63.
INEVITABLE ACCIDENT / UNAVOIDABLE ACCIDENT
Inevitable accident. = Unavoidable accident.
“Inevitable accident” means an accident
physically unavoidable. An inevitable accident in point of law is that which the party charged
with the offence could not possibly prevent by the exercise of ordinary care, caution and skill. It
is an event which happens not only without the concurrence of the will of man, but in spite of all
efforts on his part to prevent it.
64.
In # Stanley vs. PoweR (1891) 11 Q.B. 86), the House
of Lords held that the defendant was not
liable as his act was covered under unavoidable accident, and none of the shooting party
expected the injury, the pellet which first hit the tree and later the plaintiff.
65.
In Brown vs. Kendall (1850) 6 Cush. 292), the House of
was an inevitable accident, and he was not held liable.
Lords held that the act of the defendant
94
The Law of Torts
66.
In # Pardon vs. Harcourt-Rivington (1932) 48 TLR 215),
the Court held that the defendant
was not liable, because the incident was an inevitable accident,
67.
In National Coal Board vs. Evans (1951) 2 K.B. 861), the House of Lords held that the
defendants were not liable for the damage caused to the plaintiffs electric cable, as it was
purely an inevitable accident.
68.
In Nitro-Glycerine Case (1872) 15 Wallace. 524), the House of Lords held that the defendant
was not liable, as he did not know the contents of the wooden box, and it was an inevitable
accident.
-69
2.B.(d).
VIS MAJOR (ACT OF GOD)
69.
Vis Major. = Act of God. = Greater force; irresistible force, e.g. a storm which cannot be
prevented. An extraordinary circumstance or danger, which couid not be foreseen, and which
could not be guarded against such circumstance or danger. Storms, earth quakes, volcaniceruptions, etc., are cailed as ‘Acts of God’. Example: Hudud Cyclone affected four coastal
districts, including Visakhapatnam in October, 2014 in State of Andhra Pradesh. The Acts of
God or Vis Major are good defences. Acts of God or vis major are justifiable grounds for the
defendant. They do not impose any tortuous liability upon the defendant.
70.
In Nichols vs. Marsland (1876) 2 Ex.D.1), the Court of Appeal gave the judgment in favour of
the defendant admitting his argument.
71.
The Acts of God or vis major must be apparent on the face of the records.
72.
In Kallulal vs. Hemchand (AIR 1958 M. P. 48), the Madhya Pradesh High Court did not accept
his plea, and made him liable.
73.
In Ramalinga Nadar vs. Narayana Reddlar (AIR 1971 Ker. 197), the Supreme Court rejected
the defendant’ argument, and made him liable.
■74-
2.B.(e).
74.
75.
NECESSITY
This legal maxim means: “Necessity gives a priviiege as to private rights.
39
No. Here B’s act is intended to help A. In doing so, he might have caused certain damage to As
house.
B’s act is justifiable under that circumstance.
76.
No. Here the ship captain’s action is justified.
77.
The weifare of the peopie is the supreme law.
78.
# Olga Tellls vs. Bombay Municipal Corporation (1985) 3 SCC 545).
In Leigh vs. Gladstone (1909) 26 TLR 139), the Court held that it was not a battery, but it had
79.
become necessary to save her life. The defendant was
80.
not held liable.
In # Olga Tellls vs. Bombay Municipal Corporation (1985) 3 SCC 545) (Pavement Dwellers’
Case), the Supreme Court gave the judgment in favour of the pavement dwellers and held
that the pavement dwellers are not the trespassers, but they are compelled to live on the
pavements, and directed the Municipal Corporation to show the alternative accommodation
under Article 21 of the Constitution.
81.
In Charter vs. Thomas (1891 QB 673), the Court held
trespass as his interference was not necessary.
that the defendant was liable for the
-82-
2.B.(f).
82.
JUDICIAL ACTS
From the Judicial First Class Magistrate to the Chief Justice of the Supreme Court, all the
Judges, magistrates, and other judicial officers, who act judicially are protected by the Judicial
Officers’ Protection Act, 1850 in India. No Judge, Magistrate, Justice of the Peace, Collector,
or any other person acting judicially, can be sued in any Court for any act done by him in the
discharge of his judicial duty, whether or not within the limits of his jurisdiction, provided that he,
at the time, in good faith, believed himself to have jurisdiction to do the act complained of.
-83-
Unit - II: Parties to the Proceedings
2.B.(g).
95
LIABILITY OF THE STATE FOR TORTS /
ACT OF STATE - DEFENCE OF SOVEREIGN IMMUNITY
83.
“Act of State” means an act of the executive, i.e. the sovereign power of a country that
cannot be challenged, controlled or interfered with by municipal courts. Its sanction is not that
of law, but that of sovereign power and, whatever it may be, municipal courts must accept it as
it is, without question.
84.
Sovereign immunity, or Crown immunity, is a legal doctrine by which the Sovereign or State
cannot commit a legal wrong and is immune from civil suit or criminal prosecution. In
constitutional monarchies the sovereign is the historical origin of the authority which creates
the Courts.
85.
Wade and Philips explained: “Act of State means an act of the executive as a matter of policy
performed in the course of its relations with another State, including its relations with the subjects
of that State, unless they are temporarily within the allegiance of the Crown. ”
86.
Hidayatullah J. observed: “An Act of State is ah exercise of power against an alien and neither
intended nor purporting to be legally founded. A defence of this kind does not seek to Justify the
action with reference to the law but questions the very Jurisdiction of the Courts to pronounce
upon the legality orJustice of the action. ”
87.
In Buron vs. Denman (1948) 2 Ex. 167), the House of Lords gave the judgment in favour of the
defendant, holding that his act was as an Act of State.
88.
89.
In Hardial Singh vs. State of Pepsu (AIR 1960 Punj. 644), the Punjab High Court rejected
the plea of the State, and gave the judgment in favour of the appellant-Hardial Singh.
In State ofSaurashtra vs. Memon Haji Ismail (AIR 1959 SC 1383), the Supreme Court held:
“Between November 9, 1947 and January 20, 1949, the State of Junagadh was not a part of
India, and the citizens of Dominion of Junagarh were aliens to Indian Union, during this period.
Therefore, the action of the administrator can be held as an Act of State, even though it was
arbitrary and not justifiable In the Municipal courts.”
90.
The King can do no wrong is an ancient and basic principle of the English Common Law.
The English people think that their Crown is incapable not only of doing wrong, but even of
thinking wrong.
91.
The English Law clearly made distinction between the “Sovereign Functions” and “NonSovereign Functions”. While performing a sovereign function, if any servant or agent of the
Crown does any tortuous act or breach of the contract, such agent or servant is not held liable.
In such cases, the Doctrine of Defence to Sovereign Immunity applies. While performing a
non-sovereign function, if any servant or agent of the Crown does any tortuous act or breach of
the contract, such agent or servant is held liable. In such cases, the Doctrine of defence to
Sovereign Immunity does not apply.
92.
In Madrazo vs. Wilies (3 B&Ald. 353) case, the Court did not accept his argument, and ordered
him to pay the compensation to the defendant.
93.
In Waiker vs. Baird (1892 AC 491) case, the Court held him liable to pay compensation to the
owners of the factory and held that he could not justify an interference With the private rights,
and also he was not authorised by the legislature underthe provisions of a treaty made between
the Crown and the French Government.
94.
The English Law with regard to the Defence of Sovereign Immunity for tortuous acts of its
servants was partly accepted in India during the British
95.
Rule.
In Peninsular and Oriental Steam Navigation Co. vs. Secretary of State (1861) 5 Bom.
HCR App.1), the High Court at Calcutta gave judgment in favour Of the plaintiff ordering the
defendant to pay the damages to the plaintiff. This is the first leading case on the Defence of
Sovereign Immunity in India.
96.
After independence, the ruling principle of Article 300 is that Government is not liable for torts of
its employees committed in the course of performance of sovereign functions. In # State of
Rajasthan vs. Vidhyawati (AIR 1962 SC 933), the Supreme Court gave the judgment in favour
of the widow and ordered the appellant/defendant, i.e., the State of Rajasthan to pay damages
to her.
97.
In # Kasturilal vs. State of U.P. (AIR 1965 SC 1039), the Supreme Court gave the judgment
in favour of the State that it was not liable to give the compensation to the plaintiff, treating the
act of police was as a sovereign power.
The Law of Torts
96
98.
In # State of Gujarat vs. Memon Mahomed Haji Hasan (AIR 1967 SC 1885), the Supreme
Court gave judgment in favour of the respondent, and ordered the state Government to pay
compensation to the respondent.
99.
In # Smt. B.K.D. Patil vs. State of Mysore (AIR 1977 SC 1749), the Supreme Court gave
judgment in favour of the appellant, and ordered the respondent to return the ornaments or to
pay the cash equivalent.
100.
In this case. Sovereign Immunity applies. In Thangarajan vs. Union of India (AIR 1975 Mad
32) case, a military lorry driven by a driver, defence personnel, struck a boy aged thirteen years
while crossing the road. The military lorry was engaged in conveying gas from the factory to
the ship INS Jamuna. The accident happened on account of the negligence of the driver. The
boy suffered serious injuries. The Madras High Court held that the Union of India, the employer
of the driver was not liable under the Doctrine of Sovereign Immunity.
101
JOINT LIABILITY / JOINT TORT-FEASOR
2.C.
101.
‘Tort-feasor’. = wrong-doer; a trespasser.
102.
Two motorists drive their vehicles in opposite directions, and cause an accident to a pedestrian.
These two motorists are called the ‘Independent Tort-feasors’.
103.
The ‘Joint Tort-feasors’ means A and B trespassed into the premises of C with a joint intention
to threat C. Here A and B are the ‘Joint Tort-feasors’.
104.
In England, there is a clear distinction between independent tort-feasors and joint tort-feasors.
In India, there is no such distinction, and the tort-feasors in both the occasions are called the
“Composite Tort-feasors.”
105.
In Cutler vs. McPhail (1962) 2 QB 292), the Queen Bench held that since the release of the
other joint tort-feasors extinguished the cause of action, therefore, it also extinguished the cause
of action against the defendant, and he was released from the liability.
106.
In Shiv Sagar Lai vs. Mata Din (AIR 1949 All. 105), the Allahabad High Court held that the
intention of the plaintiff seemed to continue. He generously excused the minor joint tort-feasor
and compromised with him. Therefore it did not amount to release of the other joint tort-feasors.
107.
When two or more joint tort-feasors commit a tort against the plaintiff, the Court may order for the compensation. The compensation payable to the plaintiff by the joint tort-feasors can be
divided according to the ratio of the fault done by the joint tort-feasors. It is called the
‘Contribution’.
108.
In Khushalrao vs. Bapurao Ganpat Rao (AIR 1942 Nag. 52), the Privy Council gave the
judgment in favour of the joint tort-feasor who paid the amount, and he was indemnified from
compensation.
109-
2.D.(i).
VICARIOUS LIABILITY
109.
Generally, a man is liable for his own wrongful acts. He is not liable for the wrongful acts of
others. But under certain circumstances a man may be held liable for the wrongful acts of
others. This principle is popularly known as “Vicarious Liability”.
110.
(1) Liability of the principal for the tort of his agent; (2) Liability of partners for each other’s tort;
(3) Liability of the master for the tort of his servant; (4) Liability of the State for is servants.
111.
Where one person authorises another to commit a tort, the liability for that will be not only of that
person who has committed it but also of that who authorised it. This is based on the general
principle “Qui facit per alium facit per se.” (He, who does an act through another, is
deemed in law to do it himself.) This maxim means the act of an agent is the act of the
principal. For any act authorised by the principal and done by the agent - both of them are liable.
Their liability is joint and several.
112.
He, who does ah act through another, is deemed In law
113.
The relationship as between the partners is that of principal and agent. The rules of the law of
agency apply in case of their liability also. The liability of each partner is joint and several.
to do it himself.
Unit - II : Parties to the Proceedings
114.
97
If a servant does a wrongful act in the course of his employment, the master is liable for it. Their
liability is joint and several. This principle is based on the famous maxim “Respondeat
superior” (Let the principal be held responsible.) The master is put in the same position
as if he had done the act himself. It also derives validity from the maxim “Qui facitperalium
facitperse”. (He, who does an act through another, is deemed in law to do it himself.)
This is because 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.
115.
The State is held responsible for the tortuous acts done by its servants.
116-
2.D.(ii).
VICARIOUS LIABILITY OF A MASTER FOR
HIS SERVANT’S TORTUOUS ACT
116.
A master is vicariously held liable for any tortuous act done by his servant in the course of his
employment. To impose this vicarious liability upon the master, the tortuous act must incorporate
the following two essential elements: (i) The tortuous act must be committed by the servant;
and (ii) The tortuous act must be committed in the course of employment.
117.
In # Lloyd vs. Grace, Smith & Co. (1912 AC 716), the
House of Lords held that the clerk
acted solely for his personal benefit and without the knowledge of his principal, but he did the
fraud during the employment, and in the course of his employment. Since the clerk was acting
in the course of his apparent or ostensible authority,
.
118.
the master was liable for the fraud.
In Morris vs. C.W. Martin & Sons Ltd. (1966) 1 QB 716),
the Court held that the defendant
company was liable for the theft of its employee, who stole the coats during the employment
and in the course of the employment.
119.
In Bayley vs. Manchester, Sheffield and Lincolnshire Railway (1873 LR 8 CP 148), the
House of Lords held it was the mistake of employee, who did tortuous act against the plaintiff,
in the course of his employment, therefore, the defendant company was liable.
120.
The owner of the Car is liable to pay damages to the Injured/aggrieved person.
121.
B is liable to pay the damages to C.
122.
In # Mersey Docks & Harbour Board vs. Coggins & Griffiths (Liverpool) Ltd. (1947 A.C.
1), the House of Lords reversed the decision of the lower Court, and held that Mersey Docks
& Harbour Board were the real owners of the crane and driver, thus they were liable to be held
under vicarious liability.
123.
In # Cassidy vs. Ministry of Health (1951) 2 KB 343), the House of Lords held that the
hospital authorities were responsible for the acts of their surgeon and staff, and for the damage
caused to the plaintiff.
124.
In the following circumstances, the master is not held liable under “Vicarious liability”, and is
exempted from this liability:— (1) Negligence of servants; (2) Acts outside the course of
employment; (3) Independent contractor; (4) Giving lift to an unauthorised third party; and (5)
Common Employment.
125.
In Williams vs. Jones (1885) 3 H&C 602), the House of Lords held that the defendant was not
liable for the carpenter/worker’s negligence which had not arisen in the course of employment.
126.
In Century Ins. Co. vs. Northern Ireland Road Transport Board (1942 (1)AER491 HL), the
House of Lords held that the servant negligently behaved, however, being the driver of a petrol
lorry, he must have been very careful and reasonable. He must have been taught by his employer
with required cautions while transporting the petrol. The employer failed to do so. Hence he
was held liable.
127.
In # State Bank of India vs. Shyama Devi (AIR 1978, SC 1263), the Supreme Court held that
Shyama Devi entrusted the cheque in a friendly manner, while the employee was not in the
course of employment. If she would have obtained a receipt for the cheque, then it would
certainly becomes ‘in the course of employment”, and the Bank would certainly be vicariously
liable. Therefore, in the present case, the bank was not held liable.
128.
In # Beard vs. London General Omnibus Co. (1900) 2 QB 530), the Queen Bench held that
the master (Transport Company) was not liable for the act of conductor, who did the tortuous
act outside the course of employment. The conductor was held responsible. If the driver
allowed the conductor and permitted to drive, then the accident can be treated as was done in
the course of employment.
98
The Law of Torts
129.
In Baldeo Raj vs. Deowatt (AIR1976 MP 164), the Madhya Pradesh High Court held that as
the driver permitted the conductor to drive the vehicle, it resulted in the course of employment,
and the master was held vicariously liable.
130.
In # Conway vs. George Wimpey and Co. Ltd. (1951) 2 K.B. 266), the House of Lords held
that the act of the driver in giving lift to a third person irrespective and in spite of instructions was
outside the scope of his employment. Therefore, the defendants were not held liable.
131.
The rule in Conway’s case had been followed in India for several years. In Premwati vs. State
of Rajasthan (AIR 1977 Raj. 116), the Rajasthan High Court held that the State was not held
liable, as there were strict provisions for the Government drivers not to allow third persons in
the vehicles. The driver allowed the deceased outside his employment, and thus the deceased
was treated as a trespasser ab initio. Hence the State Government was not vicariously held
liable.
132.
In Prithi Singh vs. Binda Ram (AIR 1987 P & H 56), the Punjab & Haryana High Court held that
it was the duty of the owner to strictly control the drivers not to give lift to any third parson. He
failed in doing so, therefore, he was vicariously held liable.
133.
Common employment was an historical defence in the English tort law that said workers
implicitly undertook the risks of being injured by their co-workers, with whom they were in
“common employment”. The US labour law terminology was the “fellow servant rule”.
According to this doctrine, a master was not vicariously liable for the negligent harm done by
one servant to another servant of the said master acting in the course of their common
employment. In Priestley vs. Fowler (1837), Hutchinston vs. York (1850), New Castle and
Berwick Rail Co. (1850) cases, the principle of the Doctrine of Common Employment was
applied. However, later jurisprudents, justices, etc. criticised this principle and decisions. This
rule was abolished altogether by the Law Reform (Personal Iniuriesl Act 1948. in the United
Kingdom. In India, the scope of the doctrine was limited by The Indian Empioyers’ Liabiiity
Act, 1938, The Workmen’s Compensation Act, 1923, The Empioyees’ State insurance
Act, 1948, The Personal Injury (Compensation Insurance) Act, 1963, The Factories Act,
1948, the Pubiic Liability Insurance Act, 1991, the Environmental National Tribunal Act,
1995, etc. After these enactments came into force, this doctrine was gradually disappeared
from Indian courts too.
134-
2.D.(iii).
134.
VICARIOUS LIABILITY OF A MASTER FOR HIS
INDEPENDENT CONTRACTOR’S TORTUOUS ACT
One who, exercising an independent empioyrnent, contracts to do a piece of work according to
his own methods, and without being subject to* his employer’s control,
except as to the result of
the work. He renders service in the course of an occupation, representing the will of his employer
only as to the result of his work, and not as to the means by which it is accomplished. Example:
A wants ,to go to railway station. He contracts B, an auto driver. A pays the amount according
to the meter reading after reaching the railway station. Here B is an independent contractor. B
is not As servant.
135.
Webster Dictionary: “A servant is one who serves or does service voluntarily or involuntarily;
a person who is employed for another for menial offices orfor other labou,r and is subject to his
command; a person who labours or exercises himself for the benefit of another, his master or
employer; a subordinate helper. ” Exampie: A is the car owner. B is his driver. A gives salary
to B. B works as a driver under the control of A. Here B is As servant.
136.
In Morgan vs. Incorporated Central Council (1936) 1 All E.R. 404), the House of Lords held
that the defendant was not liable, and the plaintiff had to sue the independent contractor.
137.
In Govindarajulu vs. M.L.A. Govindaraja Mudaliar (AIR 1966 Mad. 332), the Madras High
Court held that the owner of the lorry was not liable being the lorry was entrusted to an independent
contractorto get it repaired. The repairer, being the independent contractor, was held responsible.
138.
139.
In # Tarry vs. Ashton (1876) 1 QBD 314), the House of Lords helJthat the defendant was
liable, though the work was done by an independent contractor.
B is liable to pay damages to A. The problem is identical with Tarry vs. Ashton case above
discussed.
140.
No. A has no right to withdraw such support, under the Easements Act, 1882, or any other
covenant attached to the land under the Transfer of Property Act, 1882. If As independent
Unit - II; Parties to the Proceedings
gg
contractor knowingly or unknowingly withdraws the supports from A’s house/land, and causes
the fall of B’s house, then A is held responsible. He cannot plead that the withdrawal was done
innocently by his independent contractor. (Case-laws: Bower vs. Peate (1876) 1 QBD 321);
Dalton vs. Angus (1881) 6 App Cas 740); Hughes vs. Parcival (1883) 52 LJQB 348).
141
2.D.(iv).
VICARIOUS LIABILITY OF THE STATE
141. ‘The king can do no wrong’\s an ancient and fundamental principle of the English Law.
King
is regarded above all Laws. This principle was also extended to his employees. Therefore, if a
tort was committed by King’s servants in the course of their employment, the injured has no
right to sue the King under the vicarious liability.
142.
In India, no such statute like “The Crown Proceedings Act, 1947” has been brought up to
now. However, Article 300 of the Indian Constitution, 1950 empowers the injured person by
the tortuous acts of the Indian Government’s servants in the course of their employment, to sue
the Indian Government.
143.
144.
In # Rup Ram vs. The Punjab State (AIR 1961 Pun. 336), the Punjab High Court held that the
State was liable under vicarious liability for the accident caused by its driver.
A is liable for rash and negligent driving underthe criminal law, and is punishable with imprisonment
and fine (to be credited into the State’s account). Underthe Motor Vehicles Act, 1988, every
owner of the motor vehicle should insure his vehicle to meet the hospital expenses, compensation
and damages to the injured persons in a road accident. The Motor Accidents Tribunal is also"
established for this purpose. However, if the vehicle is not insured, the owner of the vehicle is
held liable to pay the compensation, and is also liable to be punished underthe Motor Vehicles
Act, 1988 and also under the Indian Penal Code, 1860. The same principle applies to the
Government also, if the vehicle belongs to the Government and not insured, the State is liable to
pay Compensation to the injured four pedestrians.
145.
In # Vidyawati vs. Lokumal (AIR 1962 SC 933), the Supreme Court ordered the Government
of Rajasthan to pay compensation to the plaintiff for the cause of the death to her husband. The
State was treated as an ordinary employer.
146.
147.
In
Pagadala Narasimham vs. The Commissioner & Special Officer, Neliore Municipality
(AIR 1994AP21), the High Court of Andhra Pradesh gave the judgment in favourof the defendant
saying that the act of police officers and the municipal staff as an act of sovereign function, and
therefore they were not liable to pay any compensation.
In State of Orissa vs. Padmalochan (AIR 1975 Ori 41), the Orissa High Court held that the
State was not liable as the act of the police officers was an act of sovereign for the purpose of
the peace and security of the entire community.
148.
149.
In State of M.P. vs. Chironji Lai (AIR 1981 MP 65), the Madhya Pradesh High Court gave the
judgment in favourof the State Government holding that it was not liable to pay compensation to
the plaintiff as its employees (police officers) did the act in exercising the function of sovereign.
In State of Punjab vs. Lai Chand Subharwal (AIR 1975 P & H 294), the Punjab & Haryana
High Court held that the State was liable under vicarious liability.
150.
In # Satyawati Devi vs. Union of india (AIR 1967 Delhi 98), the Delhi High Court held that the
Government was liable as the playing of hockey and basket ball was not deemed as an act of
sovereign.
151.
In # Ram Ghuiam vs. Govt, of U.P. (AIR 1950 All 206), the High Court of Uttar Pradesh followed
the Kasturilal’s rule, and held that the State was not liable.
152.
In # State of Gujarat vs. Memoh Mahomed (AIR 1967 SC 1885), the Supreme Court held
that the Government was a bailee of the goods and the customs officers acted against the law,
therefore the State was held liable and ordered to pay compensation to the owner of the goods.
153.
In # People’s Union for Democratic Rights vs. State of Bihar (AIR 1987 SC 1749), the
Supreme Court after enquiry gave the judgment that the State was responsible for the illegal
firing, and the State was ordered to pay Rs. 20,000/-for the dependents of every deceased, and
Rs. 5,000/-to every injured.
154.
In Rudul Shah vs. State of Bihar (AIR 1983 SC 1086), the Supreme Court severely
condemned the attitude of the State, and ordered to release the plaintiff immediately, and also a
compensation of Rs. 35,000/-.
The Law of Torts
100
155.
Yes. The Municipality is held liable. It is the duty of the Municipality to guard all the man holes.
156.
In # Smt. Kumari vs. State of Tamil Nadu (AIR 1992 SC 2069), the Supreme Court ordered
the State Government to pay Rs. 50,000/- to the plaintiff with interest @ 12% p.a. from 1-11990 till the date of payment.
■157-
2.E.
THE RULE OF STRICT LIABILITY (Rylands vs. Fletcher)
157.
“Enjoy your own property in such a manner as not to injure that of another person.”
158.
The Doctrine of Strict Liability (The Rule in Rylands vs. Fletcher) explains that the defendant
should not escape from his liability even though there is no fault of him. The liability is imposed
strictiy upon him, without fault of him.
159.
The plaintiff is held liable. The facts of the problem are identical with Rylands vs. Fletcher
(1868 LR 3 HL330).
160.
They are: (1) Plaintiff’s own default; (2) Vis Major {Act of God); (3) Consent of the plaintiff; (4)
Act of third party; and (5) Statutory Authority.
161.
If the damage is caused to the plaintiff, by his own default the Rule of Rylands vs. Fletcher
(Strict Liability) does not apply. In Renting vs. Noakes (1894) 2 QB 281), the plaintiff’s horse
went into defendant’s land and died after having nibbled the leaves of a poisonous tree there.
The defendant was not held liable.
162.
of Strict Liability. In Nichols vs. Marsland
(1875 LR 10 Ex 255) case, due to the heavy rains, the embankments of the reservoir of the
defendant broke and the water smashed away the plaintiff’s bridges. The defendant was not
Act of God is considered to be a defence to the Rule
held liable.
163.
In Carstairvs. Taylor (1871) LR 6 Ex 217), the plaintiff hired the ground floor of the land-lord/
defendant, who was staying in first floor. The water was stored on the top of the first floor,
which was used by both of them. Without any negligence of the defendant, one day the water
tank burst, and water flew into plaintiff’s portion, damaging the plaintiffs goods. Here, as the
water was used by both of them commonly, and the plaintiff also knew the presence of the tank
and its utility and danger, the Rule of Rylands case was not applied, and the defendant was not
held liable.
164.
If the harm has been caused due to the act of stranger, who is neither defendant’s servant nor
agent nor his family member, on whom the defendant has no control, the defendant will not be
held liable under this Rule. In Richards vs. Lothian (1913AC263)case, some thieves blocked
the waste pipes of a wash basin, and opened the tap. The overflowing water damaged the
plaintiffs goods. The defendants were not held liable.
165.
An act done under the authority of a Statute is a good defence to the Rule of Strict Liability. In
Green vs. Chelsea Waterworks Co. (1854) 2 QB 172) case, the defendant company had a
statutory authority to supply the water to the town by pipes. Without their fault or negligence,
the water pipe broke, and water entered into plaintiffs house causing damage to his goods. In
this case, the defendants were not held liable.
166.
The Rule of “Rylands vs. Fletcher” (Strict Liability) is also applied in India with slight variations.
Liability without fault has been recognised in cases of motor vehicle accidents. Where a driver
does an accident, and causes injury to a person, the driver is punished under the criminal law,
and the owner of the car is imposed penalty and is also compelled to pay the compensation to
the victim or his dependents under the tortuous liability. The same liability is also applied in the
Railways Act and Carriers Act. It is a welcome measure.
167-
2.F.
167.
THE ABSOLUTE LIABILITY (M.C. Mehta vs. UOI)
“Absolute Liability” is stronger than the “Ruie of Strict Liability”. In the Rule of Strict Liability
of Rylands vs. Fletcher, there are exceptions. But in the Rule of “Absolute Liability” propounded
by the Supreme Court, there are no such exceptions. The defendant has no chance to escape,
as is in the case of Strict Liability. There were two cases of dangerous gas leaks - Bhopal Gas
leak (1984) and Oleum gas leak in Deihi Cioth Mills (1985). These two incidents caused
the death of several peisons and injurious to lakhs of people.
101
Unit - II: Parties to the Proceedings
168.
On the night of 2/3-12-1984, the most dangerous gas “Methyl Iso Cyanate” (MIC) gas was
leaked from a pesticides plant situated at Bhopal, belonging to the Union Carbide Corporation,
a Multinational Company of U.S.A. As a result of the leakage of MIC, about 3,000 persons
died, and about 6,00,000 peopie suffered with permanent disability in skin, eyes, respiratory,
kidney, heart systems and other complications.
169.
Shriram Foods and Fertilisers industries is the subsidiary of Delhi Cloth Miiis Ltd., and
one of the units is situated in Delhi. Cn 4-12-1985 & 6-12-1985, Oleum gas was leaked from
one of the units of Shriram Foods and Fertilisers industries, resulted the death of one advocate,
and injuries to several others. The defendants pleaded the defences available under the Rule
of Strict Liability. The Supreme Court of India gave the judgment in favour of the victims and
their dependants. While disposing the case, the Supreme Court propounded the new Doctrine
of Liability, and named it “RULE OF ABSOLUTE LIABILITY” and held the defendants liable to
pay compensation.
170.
The Supreme Court adopted the principles viz., Polluter Pays Principle, Precautionary
Principle, Sustainable Development, etc. It has also concentrated on social, economical
and environmental problems too.
171.
As a result of the Supreme Court’s initiation, the Indian Parliament enacted in the fields of
torts and environmental law. The Public Liability insurance Act, 1991 stands as a good
example imposing liability upon the owners of the hazardous chemical factories to insure the
people (other than the workers) with their costs, so that the compensation can readily be payable
to the victims and aggrieved persons. The environmental courts are also established separately
to deal with environmental pollution causing torts to general public.
172-
2.G.
OCCUPIER’S LIABILITY
172.
An Occupier is the owner or the responsible person of the premises or of other structures like
cars, ships, aero planes, lifts, etc. These are dangerous to human life, but at the same time,
they are also very much useful to the man. The occupier of these dangerous premises and
structures owes the highest duty of care towards those visitors who entered under a contract.
The degree of care owes towards the invitees. He has no duty of such care towards the
trespasser.
173.
Under the Common Law, the law relating to occupier’s liability for dangerous land and structures
was classified into four heads - (i) duty under contract; (ii) liability in tort to an invitee; (iii) liability
in tort to a licensee; and (iv) liability in tort to a trespasser.
174.
In Indemnaurvs. Dames (1866) L.R. 1.C.P), the plaintiff being an invitee, the defendant was
held liable for the injury caused to the plaintiff.
175.
In Fairman vs. Perpetual Investment Building Society (1923 AC 74), the Court held that
generally the defendants in similar instances were held liable. Here in the instant case, the
defendants were not held liable, as the defect in the stair case was not latent, and the danger
was obvious and could have been observed by the plaintiff.
176.
In Roles vs. Nathan (1963) 1 W.L.R. 1117), the Court held that as there was no breach of duty
on the part of the defendant for which he could be made liable.
177.
In Kallulal vs. Hemchand (AIR 1958 Mad. 48), the Madras High Court held that the appellant
was responsible.
178.
In Noble vs. Harrison (1926) 2 KB 332), the defendants
179.
In Nagamani vs. Corporation of Madras (AIR 1956 Mad. 59), the Court held that the Corporation
were not held liable.
was not held liable, as it took all genuine and appropriate steps to prevent harm.
180.
In # Subhagwanti vs. Municipal Corporation of (AIR 1966 SC 1750), the Supreme Court
held that the Municipal Corporation of Delhi was held responsible.
181.
The Occupiers’ Liability Act, 1957 (England) reduced the above four heads in two heads, i.e.
(i) lawful visitors; and (ii) trespassers. But the law relating to liability in tort to a trespasser has
not been affected by this Act. The nature of an occupier’s obligation varies according to the
kinds of persons who visit frequently those premises, and therefore, the occupier’s obligation
will be considered under the following three heads: (1) Liability towards lawful visitors; (2) Liability
towards trespassers; and (3) Liability towards the children.
102
The Law of Torts
182.
In Mokshada Sundari vs. Union of India (AIR 1971 Cal. 480), the Calcutta High Court held
that the plaintiff was not entitled to get the damage, because the deceased trespassed.
183.
In Lowery vs. Walker (1911 AC 10), the Appellate Court held
184.
In Mourton vs. Poulter (1930) 2 KB 183 191), the House
that the defendant was liable.
of Lords held that the defendant
was held liable.
185.
In Cherubin vs. State of Bihar (AIR 1964 SC 205), the Supreme Court held that the defendant
was liable for the offence.
186.
187.
Yes. The Municipality is liable to pay damages to the father of the boy. The facts of the problem
are identical with “Glassgow Corporation vs. Taylor (1922) 1 AC 44)” Case.
In Cooke vs. Midland Great Western Railway of Ireland (1909 AC 229), the House of Lords
held that the defendants company was held liable.
GADE VEERA REDDY, b.Sc.. llb., ivi.a.
S.M.H. QADRI, B. Sc., M.BA, M.A., LL.M., P.G.P.M.I.R.
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UNIT-III
SPECIFIC TORTS
In this Unit, you study,—
3A Specific Torts - Torts Affecting Persons.
3.B. Trespass to Person - Assault & Battery.
3.C. False Imprisonment [Residuary Trespass to the
3.D.
Malicious Prosecution.
3.E.
Nervous Shock.
Person].
3.F. Torts Affecting Immovable Property.
3.F.
(I) Trespass to land.
3.F.
(ii) Nuisance.
3.F.
(iii) Public Nuisance and Private Nuisance.
DISTINCTION BETWEEN PUBLIC NUISANCE AND PRIVATE NUISANCE.
3.G TORTS RELATING TO MOVABLE PROPERTY / SLANDER / TRESPASS TO
DETINUE AND CONVERSIONS
3.A.
GOODS
SPECIFIC TORTS - TORTS AFFECTING PERSONS
Q.1. What is meant by the “Specific Torts”?
(AnI., 2009, D.U.) (AnI., 2011, M.U.) (AnI., 2013, S.U.)
Q.2. What is meant by the “Specific Torts Affecting Persons”?
Q.3. What is meant by the “Specific Torts Affecting Immovable Properties”?
Q.4. What is meant by the “Specific Torts Affecting Movable Properties”?
ANSWER:
INTRODUCTION: The Law of Torts bom in England and spread entire world.
The modern democratic
principles the concept of individual’s rights, etc., also evolved in England and spread entire world
From the last century, they have developed up very speedily. Freedom of speech, freedom of property,
freedom of trade, etc., are recognised as the fundamental rights in the democratic countries. The
wrongs committed against such freedoms are recognised under the Law of Torts under a separate
name called as “the Specific Torts”, which are as follows;—
1.
2.
3.
Trespass to the person : Assault and Battery:
Residuary Trespass to the person : False Imprisonment;
Malicious Prosecution/Abuse of Legal Procedure:
4.
Nervous Shock;
5.
6.
Torts affecting the Immovable Property: Trespass to Land; Nuisance;
Torts relating to Movable Property ; Slander/Trespass to Goods. Detinue
7.
Liability arising out of Accidents:
8.
9.
Trespass to the personal reputation : Defamation, Libel and Slander, Innuendo;
Trespass to the personal convenience : Negligence, Nuisance;
10. Strict Liability and Absolute Liability;
11. Duty towards children:
12. Torts affecting Family Relations; etc.
[Note:
We shall read these specific torts in the following
Topics.]
and Conversion.
104
The Law of Torts
3.B.
Q.l.
TRESPASS TO PERSON - ASSAULT AND BATTERY
Explain and distinguish the wrongs of “Assault” and “Battery” with the help of the case law.
(May, 2008, O.U.) (May, 2010, O.U.) (AnI. 2011, K.U.) (AnI. 2012, B.U.) (AnI. 2013, S.K.U.) (AnI. A.U.)
Q.2.
Explain the ingredients of Assault and Battery.
Q.3.
Q.4.
(May, 2008, B.U.) (AnI., 2014, Amb.U.)
Explain “Assault” and “Battery” with the help
of decided cases.
(Sept., 2010, O.U.) (AnI., 2011, S.K.U.) (AnI. 2014, A.U.)
Distinguish between “Assault” and “Battery”.
Give illustrations.
Does “Battery” always include “assault”?
(May, 2013, G.U.) (AnI., 2014, P.U.)
Q.5. What are the elements of Assault, Battery and False Imprisonment in Law of Torts?
(Jan., 2011, O.U.)
[Aiso refer to Topic False Imprisonment.]
Q.6.
Assault.
Q.7.
Meaning of Assault.
(SN)
Q.8.
Essentials of an Assault.
(SN)
Q.9.
Which are not assaults?
(SN)
(SN) (AnI., 2013, M.U.) (Ani., 2012, A.U.)
Q.10. # R vs. S. George (9 C& P 483).
(SN)
Q.11. # “Blake vs. Barnard (1840) 9 C&P 626)”.
(SN)
Q.12. # Stephens vs. Myers (1830) 4 AC 172 ER 735).
(SN) (May, 2009, K.U.)
Q.l3. Bavisetti Venkata Surya Rao vs. Nandipati Muthayya (AIR 1964 AP).
(SN)
Q.l4. BATTERY.
(SN)
Q.l 5. Meaning of Battery.
(SN)
Q.l6. Essentials of Battery.
(SN)
Q.17. # Stanley vs. Powell (1891) 1 Q.B. 86).
(SN) (Ani. 2012, S.V.U.) (Ani. 2013, N.U.)
Q.l8. Pratap Daji vs. B.B. & Co. Riy. (1875) 1 Bomb. 52).
(SN)
Q.l 9. P. Kader vs. K.A. Alagarswami (AIR 1965 Mad. 438).
(SN)
Q.20. All Buksh Doctor vs. Sheikh Samiruddin (1869) 4 Beng. LLR ACJ 31);
Bishonath vs. Huro Govind (1866) 5 WR 27).
(SN)
Q.21. DISTINCTION BETWEEN ASSAULT AND BATTERY.
(SN) (Ani. 2010, N.U.) (Ani. 2011, K.U.)
Q.22. “Popular assault begins where legal assault ends".
(SN) (Ani. 2012, K.U.)
Q.23. "Every threat is not Assault."
(SN) (Ani., 2012, Burd. U.)
Q.24. “Every Assault is not Battery."
(SN) (Ani., 2012, Burd. U.)
Q.25. “Every application of force is not Battery."
(SN) (Ani., 2012, Burd. U.)
ANSWER:
ASSAULT
(SN)
MEANING:
Assault, (n. & v.t.) = The unlawful laying of hands on another person, or an attempt or offer to do a
corporal hurt to another, coupled with an apparent present ability and intention to do the act. It is a tort
consisting of an act of the defendant which causes to the piaintiff reasonable fear of the infliction of
battery on him by the defendant. The intention as well as the act makes an assault.
Arnold C.J. explains: “Any gesture calculated to excite in the party threatened a reasonable
apprehension that the party threatening intends immediately to offer violence, o,r in the language of the
Indian Penal Code, is “about to use criminal force” to the person threatened, constitute, if coupled
with a present ability to carry such intention in execution, an assault in law. ”
IMPORTANT POINTS:
A.
ESSENTIALS OF AN ASSAULT:—
1.
It is an attempt or a threat to do a corporal hurt to
2.
The intention as weil as the act makes an assauit.
3.
another.
It causes to the person threatened reasonable apprehension that the party threatening intends
immediately to offer violence.
4.
The person threatening must create the feeiing to the person threatened that he is ‘about to
use criminal force’.
5.
The person threatening must have abiiity to carry such
intention in execution.
B. EXAMPLES: The following examples are assaults:—
(a) Threatening any person with loaded pistol or with a knife;
(b) Showing fist with threatening manner;
Unit - III: Specific Torts
(c)
105
One person strikes another with intention to cause injury, but it misses. It is an assault,
(d) A holds up his hand against B in a threatening manner, but says nothing. It is an assault.
C.
The following are not assaults:—(a) A strikes B upon the hand, or arm, or breast in discourse while travelling in a bus. It is not an
assault,
(b) A threatens B with an unloaded pistol, which B
knows that it is an unloaded one.
It is not
assault,
(c)
A is travelling in a moving train. B standing on earth threatens to throw water or stone upon
A. It is not assault,
(d) Mere words do not amount to an assault.
However, if the words
apprehension to the person threatened, then it amounts to assault.
create reasonable
D. PROBLEM: A points a gun at B. A knows, while B does not know, that the gun is loaded. Has
A committed any tort?
(November, 2000, S.V.U.)
SOLUTION:
Yes.
A has committed both the offences of
Assault and Battery. In # “R vs. S.
George (9 C& P 483)” case, the Court held: “When the defendant by his act creates an apprehension
in the mind of the plaintiff that he is going to commit battery against the plaintiff, the wrong of
assault is completed. 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. In # “Blake vs.
Barnard (1840) 9 C&P 626)” case, the Court held: “The test is whether an apprehension has been
created in the mind of the plaintiff that battery is going to be committed against him, and, if the plaintiff
knows that the pistol is unloaded, then there is no assault. ”
[Note: In the previous edition of this book, i wrote the answer as ‘NO’ with my wrong interpretation. Jnanendra, Bangalore
9611492950 has sent an e-maii pointing out my fauit. Accordingiy I corrected the answer as above. Thanks to Jnanendra! AuthorGade Veera Reddy.]
E.
# Stephens vs. Myers (1830) 4 AC 172 ER 735)
(Assault)
Brief Facts: Stephens was the plaintiff and the Chairman of a Parish meeting. Myers was a member
participating in the said meeting. During the discussion, the Defendant-Myers became angry, and
began to make an outcry, and disturbed the proceedings. The majority of the members of the meeting
resolved to expel the defendant. This caused further angry to the defendant. There were six members
in between the defendant and the plaintiff. The defendant advanced to the Chairman with a clenched
fist saying that he would send the Chairman out of the room, and pulled him from the chair. He advanced
to do this with annoyance. However, he was stopped from doing so by the church warden. Who sat
next but one to the Chairman-plaintiff. The plaintiff sued the defendant for an assault.
JUDGMENT: The Jury held that the defendant was liable for assault, and awarded one shilling damages
to be paid to the plaintiff.
Principle: TindaIC.J. observed: “It is not every threat, when there is no actual personal violence that
constitutes an assault. There must, in all cases, be the means of carrying the threat into effect. The
question, I shall leave to you will be, whether the defendant was advancing at the time, in a threatening
attitude, to strike the chairman, so that his blow would almost immediately have reached the chairman,
if he had not been stopped; then, though he was not near enough at the time to have struck him, yet if
he was advancing with that intent, I think it amounts to an assault in law. If he was so advancing that
within a second or two, he would have reached the plaintiff, it seems to me it is an assault in law. ”
F.
Bavisetti Venkata Surya Rao vs. Nandipati Muthayya (AIR 1964 AP)
(Assault)
The plaintiff was an agriculturist. He had to pay Rs. 11.60 towards revenue arrears. The village
munsiff came to his house and demanded to pay the revenue then and there itself. The plaintiff had no
money at that time. The village munsiff threatened that he would take his ear-rings. He called village
goldsmith. Meanwhile some other paid the revenue on behalf of the plaintiff. The plaintiff sued goldsmith
and munsiff for assault. The Court held that there was no assault, because the goldsmith did nothing,
and did not speak against the plaintiff.
G. PROBLEM: A abuses B. B takes out his sword and tells A, “next time, if you use such language,
I will kill you.” Has A committed any tort?
(Jan., 2005, A.U.)
SOLUTION: Yes. A has abused B in a threatening manner, it amounts “assault”. Generally every
abuse includes threatening. Hence it is an assault. It also amounts defamation. At the same time,
B has also committed the offence of “Battery” including “assault”.
106
The Law of Torts
BATTERY
(SN)
MEANING:
Battery, (n.) = The actual striking of another person or touching him a rude, angry, revengeful or
insolent manner. Battery is a blow or a menacing touching of a person or his clothes or anything he is
carrying or holding assault and battery.
IMPORTANT POINTS:
A.
B.
Essentials of Battery:
1.
It is an intentional and direct application of any physical force to the person of another.
2.
Battery may include an assault.
3.
There should be use of force.
4.
The same should be without any lawful justification.
5.
It can result in physical injury or personal discomfort.
The following are examples of Battery:
(a)
Use of a stick, bullet or throwing water on a man;
(b)
Spitting in a man’s face;
(c) Making a person to fall down by pulling his chair;
(d)
Infliction of heat, light, electricity, gas, odour;
(e) Physical injury is always not necessary. Least touching of another in anger is battery;
(f)
C.
An unwanted kissing is a battery; etc.
# Stanley vs. Powell (1891) 1 Q.B. 86)
[Refer to Topic “Inevitable Accident” for Brief Facts.]
D.
Pratap Daji vs. B.B. & Co. RIy. (1875) 1 Bomb. 52)
(Battery)
The plaintiff by mistake without purchasing ticket had been travelling in the train. The ticket collector of
the defendant company checked, and found him ticketless, and asked him to get out from the carriage
when the train stopped in a station. The plaintiff refused to get down. The ticket collector used force
and pulled down the plaintiff. The Court held that there was justification in the acts of defendant, and
therefore, he was not liable. Use of force to oust a trespasser from certain premises is perfectly
justified.
E.
P. Kadervs. K.A. Alagarswami (AIR 1965 Mad. 438)
(Battery)
The plaintiff was an under-trial prisoner. He was taken to hospital for treatment. The defendant-police
officer chained the plaintiff with handcuffs to a window in the hospital room. The Court held that it was
a battery.
F. PROBLEM: Rahim assaulted Buron. Buron brought an action and recovered damages for the
assault.
Sometime after wards Buron had to have a bone removed from his skull because of the
injuries he had received; he then sought to bring another action in respect of this later injury. Is Rahim
liable?
(May, 2005, G.U.)
SOLUTION: In the criminal proceedings, the charges can be altered. For example, the prosecution
may change the charges from “simple hurt” to “grievous hurt”, and from “grievous hurt” to
“murder”, depending upon the injuries and treatment and consequences of the incident. Advil action
lies for an assault or battery, and criminal proceedings may also be taken against the wrong-doer. The
fact that the wrong-doer has been fined by a criminal Court for battery is no bar to a civil action against
. him for damages. The previous conviction of the wrong-doer in a criminal Court is no evidence of
assault/battery. The factum of battery must be tried in a civil Court. Thus the damages paid by Rahim
for assault at the first suit, does not bar Buron to proceed against him under battery, as the injury was
serious in nature. (Case-Laws: All Buksh Doctor vs. Sheikh Samiruddin (1869) 4 Beng. LLR
ACJ 31); Bishonath vs. Huro Govind (1866) 5 WR 27).)
Unit - III: Specific Torts
G.
107
DISTINCTION BETWEEN ASSAULT AND BATTERY
ASSAULT
(SN)
BATTERY
1.
There is no physical contract in an assault.
1.
Physical contract is necessary in battery.
2.
It is an 'attempt' to commit criminal force.
2.
An attempt + applied force = completed act of
battery.
3.
It is in initial stage.
3.
It is completed.
4.
Every assault may not include battery.
4.
But every battery must always include assault.
5.
Assault is an infringement of battery.
5.
Battery is an accomplished assault.
6.
An assault is an overt act indicating an
immediate act to commit a battery coupled with
the capacity of carrying out the intention into
6.
A battery is something more in it an intentional
application of force to the person of another
without lawful justification is necessary.
In order to constitute an assault, it is also
necessary that the person so assaulted must,
on reasonable grounds, believe that the person
assaulting has the ability to apply the force so
attempted by him.
7.
No such belief is needed in battery. On the other
hand, the application of even the slightest
Throwing of water upon a person is an assault.
8.
effect.
7.
8.
amount of force is actionable. Even a slight
touch to person is sufficient.
As soon as the water falls on the person, it
becomes battery.
CONCLUSION: Raising the stick to beat a person is an assault. As soon as the defendant beats the
plaintiff with that stick, it becomes battery. Thus there are two steps. In the first step, ‘raising the
stick’ is an essential ingredient of assault. But beating that plaintiff is not assault. It is only battery.
‘Infliction of force’ is the ingredient of battery. Generally the layman presumes that as soon as the
defendant beats the plaintiff it is an assault. He could not differentiate the stages between the two
assault and battery. He adds both the above two stages and calls the completed action as an assault.
It is for this reason that it is sometimes pointed out by learned lawyers that “popular assault begins
-
where legal assault ends”.
3.C.
FALSE IMPRISONMENT
[RESIDUARY TRESPASS TO THE PERSON]
Q.l.
Explain the elements of the Tort of “False Imprisonment”, and distinguish it from the Tort of “Malicious Prosecution”.
(Jan., 2007, Burd. U.) (Aug., 2006, O.U.) (AnI., 2005, S.U.) (Aug., 2009, O.U.) (AnI., 2013, K.U.)
[Also refer to Topic “Malicious Prosecution”.]
I
In
Q.2.
Write a note on False Imprisonment.
Q.3.
What constitutes “False Imprisonment”, and who is liable for false imprisonment?
Q.4.
What are the points to be proved by the plaintiff in an action for False Imprisonment?
(May, 2010, B.U.) (AnI. 2012, G.U.)
(May, 2012, G.U.)
(Feb., 2009, O.U.)
Q.5.
False Imprisonment.
Q.6.
Wrong Imprisonment.
(SN)
Q.7.
Residuary Trespass to the person.
(SN)
Q.8.
Bird vs. Jones.
(SN) (AnI., 2012, K.U.)
Q.9.
Herd vs. Wearoale (1915 AC 67).
(SN) (AnI. 2013, M.U.)
(SN) (Dec., 2012, O.U.) (AnI., 2013, M.U.)
Q.10. Maharani of Nabha vs. State (AIR 1942 Mad. 696).
(SN)
Q.11. Mee vs. Cruikshank (1902) 86 LT 708).
(SN)
Q.12. Bhim Singh vs. State of J.K. (AIR 1986 SC 494).
(SN)
Q.13. The False Imprisonment should be without any lawful justification.
(SN)
Q.14. Herd vs. Wearcale (1915 AC 67).
(SN)
Q.l5. John Lewis & Co. vs. Time (1952) 1 All ER).
(SN)
Q.l 6. REMEDIES AGAINST FALSE IMPRISONMENT.
(SN)
Q.l 7. DISTINCTION BETWEEN FALSE IMPRISONMENT AND ABUSE OF PROCESS.
(SN) (AnI. 2009, M.U.)
ANSWER:
FALSE IMPRISONMENT [RESIDUARY TRESPASS TO THE PERSON]
(EQ/SN)
MEANING:
False Imprisonment. = The confinement of a person without just cause or excuse. There must be
a total restraint of the person; and the onus of proving reasonable cause is on the defendant. It is a
total restraint of the liberty of a person, for, however, short a time, without lawful excuse. False
108
The Law of Torts
imprisonment is also called as “Erroneous Imprisonment” or “Wrongful Imprisonment”.
residuary trespass to the person.
It is
DEFINITION:
Blackstone defines: “Every confinement of the person is an imprisonment, whether it be in a common
prison, or in a private house, or in the stocks, or even by forcibiy detaining one in the pubiic streets.
”
IMPORTANT INGREDIENTS OF FALSE IMPRISONMENT
1. TOTAL RESTRAINT; The plaintiff must prove that there is a complete deprivation of his liberty.
# Bird vs. Jones (1845 QB 742)
(Totai Restraint)
Brief Facts: A part of the public footway, as opposed to carriage way, on Hammer Smith Bridge was
wrongfully enclosed by the defendant. Seats were arranged and fee was collected to show rowing.
The plaintiff insisted upon passing along the part so appropriated and attempted to climb over the
enclosure. The defendant pulled him back. The plaintiff succeeded in climbing over. He was told to go
back into the carriage way and proceed to the other side of the bridge, if he pleased. The plaintiff
refused to do so and remained there for about half-an-hour.
Later he sued the defendant on the
allegation of false imprisonment.
JUDGMENT: The Court held that there was no false imprisonment as there
the plaintiff’s liberty. The plaintiff was free to go back or to cross the bridge.
was no total restraint on
Principle: Coleridge J. observed: “A prison may have its boundary iarge or narrow, visibie and
tangible, or, though real, stiiiin the conception only; it may itself be moveable or fixed: but a boundary
it must have; and that boundary the party imprisoned 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 me to arise from confounding imprisonment of
the body with mere loss of freedom: It is one part of the definition of freedom to be able to go whithersoever
one pleases; but 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. ”
Herd vs. Wearoale (1915 AC 67)
(Total Restraint)
The defendant coal company took the responsibility of transporting the workmen to the spot in the
mine underground and to outside at particular times in the morning and evening. The plaintiff was a
workman. He reached the wor kspot through the lift. Later he quarrelled with the staff, and did not
obey the instructions from the higher officers. He demanded to arrange lift so that he could go outside
of the mine. The defendant did not agree, and the lift was arranged only in the evening along with other
workers. The plaintiff sued for false imprisonment. The Court held that on the principle of volenti non
fit injuria, the action could not be maintained.
Maharani of Nabha vs. State (AIR 1942 Mad. 696)
(Total Restraint)
The plaintiff/Maharani of Nabha was prevented from boarding a train by a sub-ihspector. He also
prevented her car from being taken out of the railway compound. In a suit filed it was held that there
was no false imprisonment, because here a person was not restrained or confined; only the liberty to
go in the conveyance in which she wished to go was affected.
Mee vs. Cruikshank (1902) 86 LT 708)
(Total Restraint)
The plaintiff was a prisoner. He was acquitted. Again, he was brought to the prison by the defendant
police and detained him fora few minutes. The plaintiff was questioned by the warders. The Court
held that it was false imprisonment.
Bhim Singh vs. State of J.K. (AIR 1986 SC 494)
(Total Restraint)
The petitioner/M.L.A. was detained by police in order to prevent him from attending the Assembly
Session. The Supreme Court held that it was false imprisonment and awarded Rs. 50,000/- as
exemplary damages. [Refer to Topic ‘Essential Elements/Condition s of Tort’.]
2. The False Imprisonment should be without any lawful justification: When there is some
justification for detaining a person there is no false imprisonment. Therefore, a legal imprisonment
cannot be called as ‘false imprisonment’.
Unit - III; Specific Torts
109
Herd vs. Wearcale (1915 AC 67)
(Total Restraint)
[Brief facts are given above.]
John Lewis & Co. vs. Time (1952) 1 All ER)
(Total Restraint)
The plaintiff and her daughter went to a shop. The daughter stole some articles and put them in her
mother’s bag. Both of them were caught by the shop management, and be seated in a hall for half-anhour. Meanwhile police came and arrested them. After enquiry, it was held that the daughter did
offence and mother was innocent. Mother was released. The Mother-plaintiff sued the defendant
company forfalse imprisonment. The defendants were not held liable, as there was lawful justification
in detaining the plaintiff and her daughter.
3. Means of escape: There should not be any means of escape capable of the plaintiff. If there are
means of escape the restraint cannot be termed as total and that does not constitute false imprisonment.
# Bird vs. Jones (1845 QB 742 )
(Total Restraint)
[Brief facts are given above,]
REMEDIES:
1. Self help: When a person is under an illegal detention, he is authorised to use reasonable force to
escape from it. It is the principle of natural justice.
2. Habeas Corpus: Under Article 32 and Article 226 of the Constitution, the Supreme Court and the
High Courts respectively are authorised by the Constitution to issue a writ known as “Habeas Corpus”.
By mis Writ, the person detaining is required to produce the detained person before the Court and
justify the detention. If the Court finds it is a false imprisonment, it will order for immediate release of
the person detained.
3. Action for Damages: The plaintiff, after his release from the false imprisonment, can sue the
defendants for damages. The principal heads of damage would appearto be the injury are liberty, loss
of time, injury to feeling, mental suffering, humiliation, tension, loss of social status, etc.
DISTINCTION BETWEEN FALSE IMPRISONMENT AND ABUSE OF
FALSE IMPRISONMENT
PROCESS
MALICIOUS PROSECUTION/ABUSE OF
PROCESS
1.
If a person arrests or imprisons another person
without lawful justification or prevents him from
leaving a place without lawful justification, it is
considered as to false imprisonment.
1.
If arrest or imprisonment is made by obtaining
a judgment in a Court of Law, under the false
evidence, it will not amount to false
imprisonment, but it is considered as malicious
prosecution. It is also called as "Abuse of
Process".
2.
The essential element of false imprison-ment is
inflicting of bodily restraint without lawful
2.
prosecution as the very term suggests are;
(a) that prosecution was instituted without
reasonable and probable cause;
(b) that the prosecution was malicious.
justification.
3
False imprisonment can be made with malice
3.
or without malice.
False imprisonment affects the plaintiff
physically and mentally.
4.
5.
In false imprisonment, the plaintiff has to prove
5.
defendant to prove that the arrest or detention
was justified under the law.
The malicious prosecution as the very term
suggests that it is malice in nature.
4.
his detention or arrest and it is for the
The essential elements of malicious
The malicious prosecution affects the plaintiff
mentally only.
In case of malicious prosecution the plaintiff
has to prove - (i) that he was prosecuted by the
defendant; (ii) that the prosecution was
terminated in his favour; (iii) that there was no
reasonable or probable cause for launching
such prosecution; (iv) that the prosecution was
malicious.
DEFENCES AVAILABLE FOR AN ACTIONABLE FALSE IMPRISONMENT
The following are the defences available to the defendant for an actionable false imprisonment:
1.
Statutory Authority: Section 41 of the Criminal Procedure Code, 1973 empowers a Police
Officer to arrest any person who has been concerned in any cognizable offence, or against whom
The Law of Torts
110
a reasonable complaint has been made, or credible information has been received or a reasonable
suspicion exists of having been so concerned. However, he should produce the arrested person
before the Court within 24 hours after the arrest, and explain the reasons for the arrest. This
similar power is also vested to private persons by Section 43 of the Criminal Procedure Code. If
a private person arrests any person involved in any cognizable offence, he should handover such
person immediately to the nearest police station or police officer. In arresting such person, the
police officer or private person can also use the reasonable force.
2.
Preservation of Pubiic Peace: The police officers and/or revenue officers are empowered by
certain provisions of the Criminal Procedure Code to arrest and imprison certain people to preserve
the public peace in the society.
3.
Expulsion of trespasser: If a trespasser enters into the premises of the owner, the owner may
expel the trespasser by using force. If the trespasser does not move, the owner may detain him,
and inform the same to the police officers.
4.
Consent: Consent from the original owner may be obtained in way of leave or/and licence.
5.
Self-Defence: Right of private defence is a good defence. It is justified by the Indian Penal Code.
[See Right of Private Defence in the Indian Penal Code.]
6.
Lawful Justification: When there is some lawful justification for detaining a person there is no
false imprisonment. The defendant can prove the lawful justifications in the Court. Example:
Herd vs. Wearcale.
7.
Means of escape: If there are other ways to pass or escape it cannot be called as “False
Imprisonment”. The defendant can show that there are certain alternatives to the plaintiff to go
away. Ex.: Bird vs. Jones.
8.
Contributory Negligence: Where the plaintiff enters the premises of the defendant knowingly
or unknowingly, it becomes a trespass and contributory negligence, it becomes a good defence
to the defendant.
Parental or Quasi-parental authority: Parents or the guardians of minors can detain the minors
from not moving from certain places in the interests of such minors. However, their restrictions
9.
must be reasonable.
10.
Inevitable Accident: Due to the struck off of lift, and imprisoned in the lift-cabin is not a false
imprisonment, if it accidental. |f it is intentionally done by the defendant, then it is a wrong
imprisonment.
3.D. MALICIOUS PROSECUTION / ABUSE OF LEGAL PROCEEDINGS
(SN) (Sept., .2014, O.U.)
Q.1.
Malicious Prosecution.
Q.2.
Abuse of Legal Proceedings.
(SN)
Q.3.
Maintenance and Champerty.
(SN) (May, 2010, B.U.)
Q.4.
Champertous Agreement.
(SN)
Q.5.
Essentials of a Malicious Prosecution.
(SN)
Q.6.
Narasinga Rao vs. Muthaya Pillai (1926, Mad. 362).
(SN)
Q.7.
# Gaya Prasad vs. Bhagat Singh (ILR (1908) 30 All. 525 PC).
(SN)
Q.8.
Satyakam vs. Dallu (AIR 1983 Raj. 193).
(SN)
Q.9.
# Abrath v. North Eastern Railway Co. (1886 A.C. 247).
(SN)
0.10. Abdul Majid vs. Harbansh Chaube (AIR 1974 All 129).
Q.11. Malice.
(SN)
(SN)(June, 2011, O.U.)
ANSWER:
MALICIOUS PROSECUTION / ABUSE OF LEGAL PROCEEDINGS
(EQ/SN)
MEANING:
Abuse of Legal Process, (n.) = Abuse of the legal process is the malicious and improper use of
some regular legal proceedings to obtain an unfair advantage over an opponent. Nothing short of
obvious fraud on the part of a debtor would render him liable to have his petition for insolvency dismissed
on the ground of “Abuse of Process of Court”. The term is generally used in connection with action
for using some process of the Court maliciously to the injury of another person. (Ramnath Aiyer’s
Law Lexicon)
Unit - III: Specific Torts
111
Champerty, (n.) = a bargain between two litigants, to carry on a suit and share in the property.
‘Champerty’ is an agreement whereby one party is to assist another to bring an action for recovering
money or property, and is to share in the proceeds of their action.
Maintenance. (n.) = ‘Maintenance’ is an agreement to give assistance, financial or otherwise, to
another to enable him to bring or defend legal proceedings when one has got no legal interest of his
own.
DEFINITION: Section 19-B of the Indian ContractAct, 1872 defines both the terms.
Sec. 19-B. Definitions of maintainer and champertous agreement.— (a) “Maintainer” means a person who gives
assistance or encouragement to one of the parties to a suit or proceeding and who has neither an interest in such suit or
proceeding nor any other motive recognized by the iaw as justifying his interference,
(b) “Champertous agreement” means an agreement whereby the nominai piaintiff agrees with maintainer to share
or give to him a part of whatever is gained as the
In short:
with
resuit of the suit maintained.
Champerty Is an agreement to share the proceeds. Maintenance Is to promote
speculative litigation.
Interference with the Course of Justice: Any agreement for the purpose, or to the effect, of using
improper influence of any kind with judges or officers of Justice is void. It interferes with the administration
of Justice. It is unlawful, void and opposed to public policy.
Sec. 19-C. Power to set aside champertous agreement.— A champertous agreement may be set aside upon such
terms and conditions as the court may deem fit to impose.
Malicious Prosecution, (n.) = “Malicious Prosecution” means a prosecution on some charge of
crime which is willful, wanton, or reckless, or against the prosecutor’s sense of duty and right, or for
ends he knows or is bound to know are wrong and against the dictates of public policy.
The term ‘malice’ as used in the expression “malicious prosecution” is not to be considered in the
sense of spite or hatred against an individual, but of malus animus, and as denoting that the party is
actuated by improper and indirect motives. Thus malicious prosecution means that the proceedings
which are complained of, were initiated from a malicious spirit, i.e. from an indirect and improper
motive, and not in furtherance of Justice. It is a causeless as well as an ill-intended prosecution. It is
an abuse of legal procedure.
ESSENTIALS OF A MALICIOUS PROSECUTION
1.
It was instituted by the defendant against the plaintiff.
2.
It was instituted without any reasonable and probable cause.
3.
The defendant instituted it maliciously, willfully and purposely to gain some advantage to him, or
through mere wantonness or carelessness, if it be at the same time wrong and unlawful w\tb\r\ the
knowledge of him.
4.
Such malicious prosecution was terminated in favour of the plaintiff (defendant in the criminal
case).
5.
The plaintiff (defendant in the malicious prosecution) sustained damages as a result of the criminal
malicious prosecution.
1.
Prosecution by Defendant: The first essential element of “malicious prosecution” is that it must
have been instituted by the defendant against the plaintiff. Prosecution means to set the law into
motion. A man prosecutes a charge who lays information before a magistrate accusing one of an
offences mentioned in the criminal law. Therefore, malicious prosecution concerns with criminal
proceedings only. Proceedings before Judicial or a tribunal amounts to a prosecution. In the same
way, proceedings before the quasi-judicial authorities also amount to prosecution.
PROBLEM: X filed a criminal case against Y by falsely alleging that Y has stolen his property. The
criminal Court acquitted Y from the charge under I.P.C. and found not guilty. Is there any remedy for Y
under law of tort to claim damages from X?
[Feb., 2006, S.V.U.]
SOLUTION: Yes. Y is entitled to sue X and get the damages for the abuse of the legal proceedings
and causing unnecessary difficulties to Y. This was decided in “Gaya Prasad” Case discussed
below:—
Can the complaint to police be treated as a prosecution? It is the general policy that the aggrieved
people complain to the police. The police enquire into the matter, and procure the evidence, and if they
feel that it is a genuine and proper case, they file the case against the accused in a Court of Law. The
State argues cases on behalf of the complainants. This is based on the public policy.
An independent can also file a criminal proceeding in a Court of Law, if he feels that he could not get
help from the police. In that case, he himself becomes the complainant. The problem arises, where
112
The Law of Torts
a person influences the police by money or politics, and causes the false evidences recorded, and
proceedings against an innocent person in the Court. The Courts, for a long time, followed the policy
that when a case was enquired, instituted and argued by the police, and the case was dismissed in
favour of the accused, there should be no malicious prosecution on the part of the complainant or
police. This principle was adopted in “Narasinga Rao vs. Muthaya Pillai, 26, Mad. 362” by the
Madras High Court. However, this principle stood for no longer after the case-law “Gaya Prasad vs.
Bhagat Singh” decided by the Privy Council.
# Gaya Prasad vs. Bhagat Singh (ILR (1908) 30 All. 525 PC)
(Malicious Prosecution)
Brief Facts: The defendant and another filed a complaint against the plaintiff before the police. They
also supplied the false and concocted evidences to the police against the plaintiff. Basing upon the
complaint, false evidence of the defendants, the police filed a criminal case against the plaintiff. He
was arrested, remanded and released on bail. The criminal case was dismissed by the Magistrate
after due enquiry and the plaintiff was acquitted from the charges. After that, the plaintiff brought an
action against the defendants claiming damages for malicious prosecution.
The plaintiff (Defendant in criminal case) claimed damages for malicious prosecution. The Trial Court
held that in the criminal proceedings which resulted in the acquittal of the plaintiff, the two defendants
have concocted and produced false evidence to connect the plaintiff charged with the crime. The Trial
Court awarded damages to the plaintiff. The defendants appealed to the Judicial Commissioner of
Oudh basing on the authority of “Narasinga Rao vs. Muthaya Pillai”, contending that the criminal
case was instituted by the Police, and not by them, and they were not the complainants. The judicial
Commission of Oudh dismissed the suit in favour of the defendants on the ground that if the police or
magistrate decided to act on information given by a private individual without a formal complaint, or
application for process, the Crown becomes the prosecutor and not “individual”. The plaintiff appealed
to the Privy Council against the decision of the Judicial Commissioner.
JUDGMENT: The Privy Council reversed the decision of the Judicial Commissioner, and confirmed
the decision of the Trial Court awarding the damages to the plaintiff.
Principles: (i) The Privy Council observed: “In India the police have special powers in regard to the
investigation of criminal charges, and it depends very much on the result of their investigation whether
or not further proceedings are taken against the person accused. If, therefore, a complainant 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.
But if the charge is false to the knowledge of the complainant: if he misleads the police by bringing
suborned witnesses to support: if he influences the police to assist him in sending an innocent man for
trial before the magistrate it would be equally improper to allow him to escape liability because the
prosecution has not, technically, been conducted by him. The question in all cases of this kind must
be - Who was the prosecutor? - and the answer must depend upon the whole circumstances of the
case. The mere setting of the law In motion is not the criterion; the conduct of the complainant before
and after making the charge, must also be taken Into consideration. Nor is it enough to say, the
prosecution was instituted and conducted by the police. That again is a question of fact. ”
(ii) The Privy Council also pointed out that to decide whether it was a malicious prosecution or not,
the conduct of the complainant/defendant before and after the complaint has to be seen to decide
whether he is the real prosecutor or not.
2. Absence of reasonable and probable cause: The second and important essential of malicious
prosecution is that the plaintiff has to prove that the defendant prosecuted him without reasonable and
probable cause. The burden of proof lies on the plaintiff to show that there was an absence of reasonable
and probable cause.
Satyakam vs. Dallu (AIR 1983 Raj. 193)
(Malicious Prosecution)
Defendant Dallu was an illiterate villager. He engaged Satyakam-an advocate to defend his case of
disputed land. The advocate also took another land case from the opposite party of Dallu. This
caused annoyance to Dallu. He filed a petition before Bar Council, under the professional misconduct.
Both the land cases were having similar boundaries. The Bar Council, however, gave benefit of doubt
to Satyakam-the advocate and dismissed Dallu’s petition. Satyakam brought an action against Dallu
contending malicious prosecution by the latter before the Bar Council. The High Court opined that
there was sufficient reasonable and probable cause in the prosecution by Dallu-the defendant before
the Bar Council. It also opined that keeping in mind the high traditions of the legal profession, the
Unit - III: Specific Torts
113
plaintiff should not have taken up the case against his old client. Under the circumstances, it was held
on the part of the defendant, and he was not
that there was no want of bona fides and also no malice
guilty of malicious prosecution.
# Abrath v. North Eastern Railway Co. (1886 A.C. 247)
(Malicious Prosecution)
BRIEF FACTS: The defendants were a railway company. An accident occurred to one of their trains,
causing serious injuries to several persons. The defendants company paid compensation to those
injured persons. X-a person claimed such compensation alleging that he was also Injured by that train
accident, and obtained huge compensation from the defendants, showing serious injuries on his body.
The defendants paid compensation to him. Later they suspected that he was not a passenger of that
train, and did not sustain any injuries by that accident. They appointefi detectives to know the truth.
They detected that the injuries of X were artificially created by one doctor Abrath, for the purpose of
claiming compensation. The defendants sued Dr. Abrath and and X, contending that both of them
conspired and obtained huge compensation by frauding the company. However, the criminal case
was dismissed acquitting Dr. Abrath and X. Dr. Abrath sued the defendants for malicious prosecution.
JUDGMENTiThe House of Lords held that the defendants-railway company had taken reasonable
care to reveal the true facts, and they honestly believed that the information obtained was reliable.
Therefore, they were held not liable.
3. Malice: The plaintiff has to prove that the defendant acted maliciously. Malice means the presence
of some Improper and wrongful motive, i.e., intent to use the legal process in question for some other
than its legally appointed or appropriate purpose. A prosecution began in malice, without probable
cause to believe that it can succeed and which finally ends in failure. The plaintiff has to prove in a
malicious prosecution that the defendant instituted the criminal proceeding willfully and purposely, to
gain some advantage to the defendant, or through mere wantonness or carelessness. If It be at the
same time wrong and unlawful within the knowledge of the defendant, and without probable cause.
Abdul Majid vs. Harbansh Chaube (AIR 1974 All 129)
(Malicious Prosecution)
The plaintiff was prosecuted for an offence under Section 412 of Indian Penal Code for being in
possession of a ‘hansuli’ removed in a dacoity case. Defendant No. 1, the Station House Officer of
Police Station conspired with two other defendants in concocting the story against the plaintiff falsely
stating that ‘hansuli’ was recovered from the plaintiffs house. The plaintiff was given benefit of doubt
and was acquitted from the charges. He brought an action for malicious prosecution against the
defendants. The Court held that the defendants had malice, and were guilty of offence of malicious
prosecution, and they were held liable.
4. Termination of the proceedings in favour of the plaintiff: Further essential element of the
malicious prosecution is that the proceedings must have been terminated in favour of the plaintiff, i.e.
he must have been acquitted from the charges and allegations made by the defendant in the criminal
proceedings. If he was convicted by the Court, such criminal proceeding cannot be called as malicious
prosecution, and he cannot bring an action for malicious prosecution. Sometimes in the lower Courts,
the plaintiff might have been convioted. On appeal. If the proceedings are terminated in favour of the
plaintiff, then he can sue the defendant for damages under malicious prosecution.
5. DAMAGES: A mere termination of a malicious prosecution in favour of the plaintiff is not sufficient.
The plaintiff must prove that he suffered unnecessary vexation, damage, worry, annoyance,
inconvenience and expenses, etc. Therefore, damage is the gist of the malicious prosecution. It is
also an Important essential element. Due to the malicious prosecution, the plaintiff suffers
psychologically, physically, socially and economically. For an unnecessary legal proceeding, he has
been forced to attend the advocate’s office, police station. Court, etc. He concentrates much time on
the proceedings, more than his livelihood and business. He also spends more money on lawyer’s
fees, conveyance and absence to his duties. He is also humiliated from the social circumstances and
by his near and dear. Besides these problems, he may be tortured by the police. Summarily, the
plaintiff suffers the following damages:-
(i)
Damage to his reputation;
(ii)
Damage to his person; and
(iii) Damage to his property.
Distinction between “Maiicious Prosecution” and “Faise Imprisonment”:
[Refer to Topic “False Imprisonment”.]
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The taw of Torts
DEFENCES: The defendant can plead the following defences against the plaintiff:He acted according to statutory authority.
b.
He had given only information to the police authorities. He acted in good faith. He supplied the
a.
evidence to the police and enquiring officers on bona fide belief. In spite of giving information, he
did nottake any initiative action orwork against the plaintiff. He did not influence any officer. Hedid
not give any false or concocted evidence.
c.
d.
The prosecution was of civil nature.
There was no malice in the prosecution. He had no enmity with the plaintiff. He had
no concern
with the plaintiff.
e.
The prosecution was instituted by the authorities on his complaint with reasonable and probable
cause.
f.
The prosecution was instituted in the interests of
g-
Plaintiff did not suffer any damages.
h.
If there were several defendants, and one or more defendants compromised with the plaintiff,
thus causing the criminal proceedings in termination, the defendant can plead that there was a
compromise between the plaintiff and the other defendants which diluted the case, and in final it
nation.
was terminated.
PROBLEM: X agreed to give 3/4th of his property involved in litigation, to Y, in consideration of Y
financing the litigation. X succeeded in the litigation but failed to honour the agreement with Y. Y wants
to sue. Can he succeed?
(Oct. 95 B.U.)
SOLUTION: Under English law, both these agreements are void. In India, agreement to share the
object of litigation is not opposed to public policy and therefore, not perse void, if it is recovered in
consideration of the other party’s supplying the funds in good faith to carry on a suit. But the agreement
is certainly opposed to public policy and therefore void, if the advances are made byway of gambling
in litigation.
3.E.
NERVOUS SHOCK
Q.l.
Trace the development of the tort of nervous shock.
Q.2.
What is nervous shock?
Q.3.
Explain the liability for injury caused by shock
Q.4.
Define “Nervous Shock”.
Q.5.
Write an essay on Nervous Shock.
Q.6.
Discuss the evolution of the Tort of Nervous Shock.
Q.7.
State the rule governing liability of a person for causing nervous and mental shock.
Q.8.
Discuss the law relating to Nervous Shock with decided cases. Mention the grounds for the liability
Q.9.
Nervous Shock.
(June, 2010, O.U.) (Apr., 2012, O.U.)
Is nervous shock an actionable wrong?
Refer to decided cases.
(AnI., 2010, K.U.)
(Feb., 2009, o!u.) (Anl., 2012, M.U.)
in Law of Torts.
Discuss nervous shock with decided cases.
(May, 2006, B.U.) (Anl., 2013, Amb.U.)
(Feb., 2006, S.V.U.) (Anl., 2012, S.K.U.) (Anl., 2013, N.U.)
Illustrate your answer with reiev'anf cases.
(June, 2010, O.U.) (Anl., 2013, Amb.U.)
(Apr., 2012, O.U.)
of Nervous Shock.
(July, 2012, S.V.U.)
(SN) (Dec., 2009, O.U.) (Anl., 2012, A.U.) (Anl., 2013, M.U.) (Anl., 2014, Amb.U.)
Q.10. Victorian Railway Commissioner vs. Couitas (1888 LR 13 AC 322).
Q.11. # Wiikinson vs. Downton (1897) 2 QB 57 A).
(SN) (Anl., 2011, K.U.)
Q.12. Duiieu vs. White and Sons (1901) 2 KB 669).
(SN).(Anl., 2012, K.U.)
Q.l3. Ownes vs. Liverpool Corporation (1939) 1 KB 394).
(SN) (Anl., 2004, M.U.)
(SN)
Q.14. Janvier vs. Sweeney (1919) 2 KB 316).
(SN)
Q.l 5. # King vs. Phiiiips (1953) 1 QB 429).
(SN)
Q.16. # Hambrook vs. Stokes Bros. (1925) 1 KB 141).
(SN)
Q.17. # Bourhill vs. Young (1943 AC 92).
(SN)
Q.l 8. DiFFERENCES BETWEEN BODiLY HARM AND NERVOUS
SHOCK.
(SN) (Anl., 2012, P.U.)
ANSWER:
NERVOUS SHOCK
(EQ/SN)
MEANING: The expression ‘Nervous Shock’ means a shock to the nerves and brain structure of the
body. An action lies for injuny by such shock sustained through the medium of the eyes or ears without
direct physical contact. Injury to health due to nervous shock is a form of bodily harm for which
damages may be claimed.
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Unit - III: Specific Torts
INTRODUCTION: The law relating to nervous shock and mental shock is comparatively of recent
origin. When a person gets injury or suffers through what he has seen or heard is called nervous
shock. The injury itself speaks the truth. Res ipsa loquitur. The nervous shock and its affects are
. not able to be proved before the Court, it is a hard job. However, the recent judicial decisions are
paving the path to award the damages to the victim of nervous shock, who was injured by the wrongful
act of the defendant.
IMPORTANT POINTS :
A. Winfield, the jurisprudent opines that there is no difficulty in proving mental shock in this modern
and scientific era. True nervous shock is as much a physical injury as a broken bone or-a torn flesh
wound. He also opined that by the aid of scientific instruments and methods, the affects of the nervous
shock can be proved in the Court. Therefore, now-a-days, a nervous shock is an actionable claim for
damages in torts.
Victorian Railway Commissioner vs. Couitas (1888 LR 13 AC 322)
(Nervous Shock)
In this case, the plaintiff suffered mental shock due to the railway accident. The Judicial Committee of
the Privy Council did not recognise injury caused by a shock sustained through the medium of eye or
ear without direct contract.
B. PROBLEM-1: A person P tells R, byway of joke that R’S husband has met with an accident and
he is in the hospital. R gets shocked and fell down. Can R sue P for the shock caused to her?
(Dec., 2007,0.U.)
PROBLEM-2: On April first, A in order to enjoy a practical joke told B that his mother was admitted to
a hospital with injuries. There upon B developed nervous shock and had fits. He had to undergo a
(Jan., 2004, N.U.)
treatment for one month. Examine the liability of A
SOLUTION-(1 &2): Yes. R can sue P for the shock caused to her in the First Problem. Similarly, B
can sue A for the shock caused to him in the Second Problem. This principle is laid down in the
following leading case:—
# Vyilkinson vs. Downton (1897) 2 QB 57 A)
(Nervous Shock)
Brief Facts: The defendant played a practical joke on the plaintiff. He told her that her husband lost
his both legs in an accident. Hearing this, she suffered nervous shock and got seriously ill. Her hair
was turned white. The doctors said that her life was in danger.
Her husband had to incur huge
amounts for her treatment.
JUDGMENT: The Court held that the defendant was held liable.
It ordered him to pay compensation
to the plaintiff.
C.
Shock caused by apprehension of Injury
(SN)
Dulieu vs. White and Sons (1901) 2 KB 669)
(Nervous Shock)
The defendant’s servant drove a horse van negligently and rashly into a public house. The plaintiff was
a pregnant lady. She saw the rash driving and felt that the van would ran over her. She suffered
nervous shock! As a result of which she got seriously ill and gave premature birth to a still born child.
JUDGMENT: The House of Lords held that the defendant was held liable.
PROBLEM: ‘X’, a pregnant woman was travelling by a train. Due to collision of trains, the woman
met with accident and she gave birth to ‘still born child’. What remedy is available to her and her
Child? (Sept., 2013, O.U.)
SOLUTION: Yes. The Railway Department is liable to pay the damages. In Dulieu vs. White and
Sons (1901) 2 KB 669), the House of Lords held that the defendant was held liable.
D.
(SN)
Shock to feelings
Ownes vs. Liverpool Corporation (1939) 1 KB 394)
(Nervous Shock)
A funeral procession was going along a road, when a tramcar was so negligently driven by a servant of
the defendants that it violently collided with the hearse, damaged the hearse and caused the coffin to
the overturned with the result that the mourners at the funeral, who were relatives of the dead man,
suffered severe mental shock. It was held that the mourners were entitled to recover damages for
mental shock in an action brought by them for negligence against the defendants, although there was
no apprehension, or actual sight, or injury to a human being.
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The Law of Torts
E.
Shock caused by threats
(SN)
Janvier vs. Sweeney (1919) 2 KB 316)
(Nervous Shock)
Defendants were two private detectives. They want to inspect certain letters of X, in connection with
an investigation. On the instructions from the senior, the junior detective approached the plaintiff-a
maid servant of X, and threatened her if she would not show the letters of X, dire consequences would
follow. The plaintiff fell ill with nervous shock. In an action by the plaintiff for damages, the Court
awarded the damages to the plaintiff opining that the defendants exceeded their powers.
F.
Shock caused by apprehension of injury
(SN)
# King vs. Phillips (1953) 1 QB 429)
(Nervous Shock)
The defendant’s servant was negligently backing a taxicab into a boy on a tricycle. The boy’s mother,
who was in an upstairs window, at a distance of about 80 yards, could only see the tricycle under the
taxi-cab and heard the boy’s scream, but could not see the boy. The boy and the tricycle were slightly
damaged. But the mother suffered nervous shock. The Court held that the motherwas wholly outside
the area of reasonable apprehension and the defendants were not held iiable.
# Hambrook vs. Stokes Bros. (1925) 1 KB 141)
(Nervous Shock)
Brief Facts: A woman sent her two children for a work. After having parted with her, they went into a
narrow street. A lorry of the defendants was coming very negligently and rashly frightening the spectators
that it must kill some of the bystanders of the street, There was no way to escape. The woman saw
the lorry coming very speedily. She feared for the safety of her children. Some of the bystanders told
her that her children met accident crushed by the lorry, and one of the children died. It caused nervous
shock to her. She felt unconscious, and consequently she died.
JUDGMENTiThe House of Lords awarded damages to the dependents of the woman admitting the
evidence that she died due to nervous shock.
Principles: 1. Atkin L.J. said: “Personally I see no reason for excluding the bystander in the highway
who receives injury in the same way from apprehension of or the actual sight of injury to a third party.
There may well be cases where the sight of suffering will directlyand immediatelyphysicallyshockthe
most indurate heart, and if the suffering of another be the result of an act wrongful to the spectator, 1 do
not see why the wrongdoer should escape. ”
2. A plaintiff who had not been at the scene of an accident might recover damages for nervous shock
brought on by injury caused not to herself/himself but to a near relative, or the fear of such injury.
# Bourhill vs. Young (1943 AC 92)
(Nervous Shock)
Brief Facts: The plaintiff was a fisher-woman. While she was 50 feet away, she heard a violent
sound of an accident. In that accident a motor cyciist died on the spot. She did not see the accident
or dead-body Motorcyclist’s dead body was removed. The scene was very awful with biood-stains.
Thereafter some time, she happened to visit the spot, and saw the blood accumulated on the spot.
Seeing the blood, the plaintiff suffered nervous shock, and had given a birth to a still born child. She
sued the personal representatives of the motorcyclist for the damages for causing nervous shock to
her and for the delivery of a still born child.
JUDGMENT. The House of Lords held that the representatives did not owe any duty of care to her and
as such they were not made liable.
Principles:
1.
To impose the iiabiiity upon the defendant for nervous shock, it is an essential element that he
must owe a duty to the plaintiff to take care with respect to him.
2.
The defendant must have reasonably foreseen the accident and its consequences as a reasonable
and prudent man.
3.
The plaintiff must have been within the area of potential, danger.
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Unit - III: Specific Torts
DIFFERENCES BETWEEN BODILY HARM AND NERVOUS SHOCK
G.
BODILY HARM
1.
NERVOUS SHOCK
Bodily injury is caused by stick, bullet, hit by
1.
Nervous shock is caused by words, gestures
and scenery.
Injury is inflicted directly to the body.
2.
Injury is inflicted indirectly to the brain.
Causing bodily harm comes under the Criminal
3.
vehicle, etc.
2.
3.
Law.
4.
(SN)
Bodily harm and its remedies have been
recognised long back, i.e. some centuries ago.
3,F.
Nervous shock and its effects generally come
under tort.
4.
Theory of nervous shock and its remedies are
recognised only from nineteenth century. It Is a
new origin.
TORTS AFFECTING IMMOVABLE PROPERTY
Specific Torts are of two types. One kind of Specific Torts is Torts affecting persons. These specific
torts inciude Assault, Battery, False Imprisonment, Malicious Prosecution and Nervous Shock. Another
kind of Specific Torts is Torts affecting Immovable Property. Torts affecting Immovable Property include
Trespass to land. Nuisance, Public Nuisance and Private Nuisance and Torts relating to movable
property.
3.F.(i).
TRESPASS TO LAND
0.1.
What is trespass to land? Explain remedies available against the trespasser.
(May, 2008, O.U.)
Q.2.
What do you mean by ‘trespass to land’, and explain the defences, if any, in cases of such trespass.
(Feb., 2006, O.U.)
Q.3.
"Trespass is a transgression of right." Do you agree with the above statement?
Is it a tort? Write
your answer.
(Anl., 2005, S.U.)
Q.4.
Discuss the responsibility of the owner of the premises to an invitee, licensee and trespasser.
Q.5.
Trespass to land.
Q.6.
Adverse Possession and Easement by Prescription.
Q.7.
Aerial Trespass.
Q.8.
Underground Trespass.
Q.9.
Edwards v Sims (1929) 24 SW 2d 619).
(June, 2001, M.U.)
(SN) (Feb., 2006, S.V.U.)
(SN)
(SN) (Sept., 2013, O.U.)
(SN)
(SN)
Q.10. Di Napoli v New Beach Apartments (2004) Aust Torts Reports 81-728).
Q.11. Leave and Licence.
(SN)
(SN) (Jan., 2005, A.U.) (July, 2002, S.V.U.)
Q.12. Timber Trespass.
(SN)
Q.13. Distress Damage Feasant.
(SN) (May, 2006, B.U.) (June, 2003, M.U.) (Nov., 2000, S.K.U.)
Q.14. Action for mesne profits.
(SN)
Q.15. Defences to trespass to land.
(SN)
Q.16. Trespass ab initio.
(SN) (May, 2006, B.U.) (May, 2005, B.U.) (Jan., 2003, G.U.)
Q.17. Six Carpenters’ Case.
(SN) (Jan., 2003, G.U.)
Q.18. Elias vs. Pasimore (1934) 2 KB 164)
(SN)
Q.19. Wood vs. Leadbitter (1845) 12 M & W 838)
(SN)
Q.20. Hurst vs. Picture Theaters Ltd. (1915) 1 KB 1)
(SN)
ANSWER:
TRESPASS TO LAND
(EQ/SN)
MEANING: “Trespass” in its largest and most extensive sense, signifies any transgression or offence
against the law of nature, or of society, or of the country in which we live; whether it relates to a man’s
person or his property. Beating another is a trespass; for which an action of trespass in assault and
battery will lie. Taking or detaining a man’s goods is also trespass, for which an action of trespass on
the case in trover and conversion, is given by the law. A forcible entry on the land of another with strong
hand and against the will of the owner is also another kind of trespass, which is called “Trespass to
Land” or “Trespass to Property”.
DEFINITION: Trespass to land is wrongful disturbance of another person’s possession of land.
EXPLANATION: Trespass to land is a common law tort or crime that is committed when an individual
orthe object of an individual intentionally enters the land of another without a lawful, excuse. Trespass
118
The Law of Torts
to land is actionable perse. Thus, the party whose land is entered upon may sue even if no actual
harm is done. |n some jurisdictions, this rule may also apply to entry upon public land having restricted
access. A Court may order payment of damages or an injunction to remedy the tort.
By law, trespass for mesne profits is a suit against someone who has been ejected from property that
did not belong to them. The suit is for recovery of damages the trespasser caused to the property and
for any profits he or she may have made while in possession of that property.
For a trespass to be actionable, the tortfeasor must voluntarily go to a specific location, but need not
be aware that he entered the property of a particular person. If Aforces B unwillingly onto C's land, C
will not have action in trespass against B, because B's actions were involuntary. C may instead claim
against A. Furthermore, if B is deceived by A as to the ownership or boundaries of C's land, A may be
jointly liable with B for B's trespass.
In most jurisdictions, if a person were to accidentally enter onto private property, there would be
no
trespass, because the person did not intend any violation. If a trespass is actionable and no action is
taken within reasonable or prescribed time limits, the land owner may forever lose the right to seek a
remedy, and may even forfeit certain property rights. This is called the Adverse Possession and
Easement by Prescription.
Trespass may also arise upon the easement of one person upon the land of another. For example, if
A grants B a right to pass freely across As land, then A would trespass upon B's easement by erecting
a locked gate or otherwise blocking B's rightful access.
In some jurisdictions trespass while in possession of a firearm, which may include a low-power air
weapon without ammunition, constitutes a more grave crime of armed trespass.
AERIAL TRESPASS AND UNDERGROUND TRESPASS: The maxim "cuius est solum, eius est
usque ad coelum et ad infernos" (whoever owns the land owns it all the way to the heavens
and to hell) is said to apply, however that has been limited by practical considerations. For example,
the Aerial Trespass is limited to airspace which might be used (therefore aeroplanes cannot be
sued). The landowners may not put up structures to prevent this. The Courts have been more lenient
with Underground Trespass. The Kentucky Court of Appeal in Edwards v Sims (1929) 24 SW 2d
619) seems to affirm the maxim without qualification, whereas the New South Wales Supreme Court
in Australia seemed more reluctant to do so in Di Napoli v New Beach Apartments (2004) Aust
Torts Reports 81-728). There is therefore an asymmetry between aerial and underground trespass,
which may be resolved by the fact the ground is almost always used (to support buildings and other
structures) whereas airspace loses its practical use above the height of skyscrapers. The owner of
the land or building shall enjoy the aerial space above the surface ad infinitum. The neighbour has no
right to encroach such aerial space by constructions or projections, sign boards, etc. However, the
State can restrict the construction of a building to certain limited floors by a statute.
There may be regulations that hold a trespasser to a higher duty of care, such as strict liability for
Timber Trespass (removing trees beyond a permitted boundary), which is a type of trespass to
chattels as a result of a trespass to land.
Some cases also provide remedies for trespass not amounting to personal presence, as where an
object is intentionally deposited, or farm animals are permitted to wander upon the land of another.
Furthermore, if a new use of nearby land interferes with a land owner's quiet enjoyment of his rights,
there rnay be an action for nuisance, as where a disagreeable
aroma or noise from A drifts across the
land of B.
Section 441 of the Indian Penal Code, 1860 defines “Criminal Trespass”: “Whoever enters into
or upon property in the possession of another with intent to commit an offence or to intimidate, insult or
annoy any person in possession of such property, or having lawfully entered Into or upon such property,
unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with
intent to commit an offence, is said to commit ‘criminal trespass’.”
IMPORTANT POINTS:
A.
ESSENTIALS OF “TORT OF TRESPASS”:
1. Entry into or upon property in the possession of another: If a man intentionally enters into or
upon property of another is a trespass. If a man is thrown against other by someone forcibly, he is not
a trespasser. Where a person stands in his own house, and throws stones upon the neighbour’s
house, is a trespass. Intention is a necessary element of trespass. A has the land. The Revenue
Authorities want to acquire As land under the Land Acquisition Act. Until the final proceedings are
settled, they are not entitled to enter into the land of A, without As permission. If they acquire the
property before proceedings are finalised, they are trespassers. (Latino Andre vs. Union Govt. (AIR
1968 Goa 132).
Unit - III: Specific Torts
119
2. A lawful entry also becomes trespass, if the trespasser remains there unlawfully: Where a
person is given permission to enter into the premises for a particular purpose, the person shall have to
leave the premises after work is done as per the permission.
EXAMPLES:
(a) A person purchases to see a picture for First Show. After the completion of picture, he should
vacate the theatre. If he remains there, and intends to see the Second Show, he becomes trespasser,
(b) A invites B for dinner. B is entitled to enter into drawing room and dining hall, but not into bed room,
or kitchen or any other private parts of the building, without the permission of A. If B enters into bed
room without the permission of A, B becomes a trespasser.
3. CONSTRUCTIVE TRESPASS: It means ‘trespass In contemplation of law’. By “constructive
trespass” is generally meant trespass, as distinguished from actual trespass.
Examples: (a) driving a nail into another’s wall; (b) shooting over another’s land; (c) throwing stones
on another’s land or premises; (d) sending gases or invisible fumes upon other’s land; (e) pasting or
placing anything against another’s walls, etc. are the constructive trespasses.
4. DIRECT PHYSICAL INTERFERENCE: Trespass is a direct physical interference in the possession
and enjoyment of another’s land or property. The only condition is that the plaintiff was in actual
possession at the time of trespass. The plaintiff need not be the owner of the property. Even he is only
a possessor, or licensee for a particular period, he is entitled to sue the trespasser.
5. Actionable perse: Trespass is actionable perse, i.e., it is actionable without proving any injury or
damage to the plaintiff. Here the right of the owner of the land is interfered. If any damages are
occurred, they can also be claimed by the plaintiff.
6. Trespass by animals: If a man’s cattle trespassed into the land of another, and destroyed the crop,
the law deems that the owner of the cattle himself did the trespass, and holds him liable. The Cattle
Trespass Act, 1871 (1 of 1871) of India explains the law relating to the cattle trespass.
7. Aerial trespass: The owner of the land or building shall enjoy the aerial space above the surface ad
infinitum. The neighbour has no right to encroach such aerial space by constructions or projections,
sign boards, etc. However, the State can restrict the construction of a building to certain limited floors
by a statute.
8. Right of Privacy: Trespass to another’s land does not cause any harm, loss or damage to the
land owner. However, his right of privacy and personal rights are affected by the trespasser. Hence
trespass to land is actionable even though no damage has been caused to the land-owner as a result
of the trespass.
B.
REMEDIES
1. Action for trespass: The plaintiff can sue the trespasser in the Court of Law. He must prove the
illegality and the wrongfulness of the defendant. Trespass is actionable perse, i.e. without of proof of
damages.
2. Defence of property: The law gives every person to protect his life and property. The plaintiff can
use reasonable force against the trespasser. If he fails to do so, he can approach the Court of Law.
[Refer to Topic “Right of Private Defence” in I.P.C. Notes.]
3. Expulsion of Trespasser: Where the defendant trespassed into the land of the plaintiff, the plaintiff
can expel the trespasser by using reasonable force. However, he should not act with violence.[Refer
to Topic “Right of Private Defence” in I.P.C. Notes.]
4.
DiSTRESS DAMAGE FEASANT
(SN)
The act of taking, the thing or animal taken, and the remedy generally, having been called “Distress”.
Where the cattle of A enters into the field of B and causes damage to the crop, B can detain As cattle
until the damages are paid to him. It is called “Distress Damage Feasant”. It is a customary rule in
the rural areas of India even to-day. It is one of the. most ancient and effectual remedies for the
recovery of damages. It is the taking, without legal process, cattle or goods as a pledge to compel the
satisfaction of a demand, the performance of a duty or the redress of an injury.
5. Action for Ejectment: The plaintiff has a right of recovery of land by a suit in the Court of Law.
6.
ACTION FOR MESNE PROFITS
(SN)
“Mesne profits” means intermediate profits. The profits or other pecuniary benefits which one who
dispossesses the true owner receives between disseiz in and the restoration of possession; those
which are received intermediate the original entry and the restoration of the possession of the premises.
120
The Law of Torts
The plaintiff has a right to claim compensation from the defendant for such mesne profits during the
period of trespass or dispossession of the property.
7. Damages: The aggrieved person/plaintiff can claim damages, if he sustained any loss or Injury to
his property or to his body, while the defendant trespassed and who expelled from the land. In fact, the
tort of trespass to land is actionable perse. If the plaintiff suffers loss by way of enjoyment, fruits, etc.,
he can claim such loss from the defendant by way of damages.
C.
DEFENCES
(SN)
The defendant can plead any one or some of the following defences. Burden of proof lies upon the
defendant. The Court has the discretionary power to allow or not.
1. Easement: “Easement” is a privilege that one neighbour has of another, by written, grant, or
prescription without profit. Right of path, right of water, right of support, right of air, right of light, etc. are
the easements. If the defendant Is enjoying the property of the plaintiff by way of easement, he can
plead it as a defence. Burden of proof lies upon the defendant.
2. Prescription: It is a title acquired by use and time, and allowed by law. It is a manner of acquiring
the ownership of property. Along, peaceful and continuous enjoyment over the property gives a right of
prescription to the defendant. He can plead it as a good defence. Burden of proof lies upon the
defendant.
3. Leave and Licence: Obtaining a licence or leave to enter into another’s land is a good defence.
We see the pictures, and entertainments by purchasing the tickets. Thus we become the licensees.
It is a good defence.
4. Authority of Law: Under the process of the Law, the State can enter into the land of any person.
However, such entry must be authorised by the Authority of Law, i.e., by the Court order. In a criminal
case, the police suspect some persons or suspected materials are accumulated in the house of A, the
Court gives the permission to enter into that house, and even to break the doors, and search. There
are clear provisions in the Criminai Procedure Code, 1973.
5. Acts of necessity: For a good cause and necessity, a person can enter into another’s land. Public
safety, fire accidents, catching the thief, to save a person from danger, etc. are the acts of necessity.
6. Seif-defence: Trespass may be done in self-defence, or in defence of man’s goods, chattels, or
animals.
7, Re-entry on iand: Where a person is unlawfully dispossessed, he can re-enter into his own land
by using peaceful methods, but without violence. Under such circumstances, he cannot be treated as
a trespasser.
8. Abatement of nuisance: Where the branches of a tree of A have occupied the roof of B, and
causing the rain water pouring into B’s house, B can cut those branches. It is called “Abatement of
Nuisance”. Here B is not a trespasser. He protects his interest. However, in doing so, he must act
peacefully, without danger to life or limb of A. B shall have to give prior notice to A, before he cut the
branches.
TRESPASS AB/W/r/O
MEANING;
(SN)
“Trespass ab initio’’ are Latin words, and mean ‘‘A trespass from the very beginning”.
A person may legally enter upon another’s land either by consent or by authority of law. In the former
case, when a person enters upon the another’s land by consent and abuses or goes beyond the
permission given to him, he is called “trespasser ab initio”, i.e., he is a trespasser from the very
beginning of his entry, even though he lawfully entered into the land with leave or licence. Law presumes
that he had gone there with a wrongful purpose in mind from the very beginning.
# Six Carpenters’ case (1610) 1 Sm LC 134)
(Trespass ab initio)
Six carpenters entered into an inn and there they ordered for wine and bread. After consuming the
wine, they refused to pay for the items served. Except that they did not commit any wrongful act. The
Court held that mere non-payment would not amount trespass ab initio.
Eiias vs. Pasimore (1934) 2 KB 164)
(Trespass ab initio)
The defendants were police officers. They entered into the plaintiff’s house to make a lawful arrest.
They removed certain documents without having any lawful authority to do that. The Court of Appeal
held that they were trespassers with regard to the documents, and not trespassers ab initio to the
house.
121
Unit - III: Specific Torts
Wood vs. Leadbitter (1845) 12 M & W 838)
(Trespass ab initio)
The plaintiff went to see a horse-race after purchasing a ticket for it. In the middle of the game, due to
unavoidable circumstances, the defendants cancelled the ticket, and requested visitors to vacate the
place. The plaintiff refused. The servants of defendants forcibly got him out. Court held that the
defendants had a right to vacate, and they were not held liable. However, this decision was criticised
by jurisprudents. It was corrected in the following case-law.
Hurst vs. Picture Theaters Ltd. (1915) 1 KB 1)
(Trespass ab initio)
Brief Facts: The plaintiff went to defendants’ theater to see a picture. He purchased a ticket and sat
down in his seat. In the middle of the show, the gate keeper suspected that he was a ticketless
person, and informed the same to the defendants. The defendants asked the plaintiff to vacate the
seat, and to go out. The plaintiff refused to do so. On defendants’ instructions, gate keeper lifted the
plaintiff from his seat. Thereafter, the plaintiff went out of the theater without commenting. He sued the
defendants for assault and false imprisonment. The defendants argued that the plaintiff was a
trespasser ab initio.
JUDGMENTrThe House of Lords gave the judgment in favour of the plaintiff, considering him as a
grantee, who purchased a ticket for the show, and thus had become a valid licensee. The defendants
had no right to revoke his licence for that particular show. They ordered the defendants to pay
compensation to the plaintiff.
Principles laid down: 1. A licence coupled with a grant
cannot recoverable.
2. Buckley L.J. observed: “The piaintiffin the present action paid his money to enjoy the sight of a
particular spectacle. He was anxious to go into a picture theatre to see a series of views or pictures
during, I suppose, an hour or a couple of hours. That which was granted to him was the right to enjoy
looking at a spectacle, to attend a performance from its beginning to its end. That which was called the
licence, the right to go upon the premises, was only something granted to him for the purpose of
enabling him to have that which had been granted to him, namely, the right to see. He could not see the
performance unless he went into building. His right to go into the building was something given to him
in order to enable him to have the benefit of that which had been granted to him, namely the right to
hearthe opera, or see the theatrical performance, or see the moving picture as was the case here. So
that there was a licence coupled with a grant.... The defendants had for value contracted that the
plaintiff should see certain spectacle from Its commencement to its termination. They broke that
contract and it was a tort on their part to remove him. They had committed an assault upon him in law.
The plaintiff was not a trespasser, nor a trespasser ab initio. ”
3.F.(ii).
NUISANCE - PUBLIC NUISANCE AND PRIVATE NUISANCE
Who is liable for nuisance and who can sue for nuisance?
Q.l.
What do you understand by the expression “Nuisance”?
Q.2.
Define “Nuisance” and state the basic differences between “Public Nuisance” and “Private Nuisance”.
(Anl., 2014, Burd. U.)
(Sept., 2009, O.U.) (Anl., 2010, K.U.) (Anl., 2001, B.U.)
(Feb., 2006, S.V.U.) (May, 2006, B.U.) (Anl., 2012, S.K.U.) (Anl., 2012, Amb.U.)
Q.3.
Write an essay on nuisance.
Q.4.
Bring out the ingredients of Nuisance and specify the distinction between “Public Nuisance” and “Private Nuisance”.
(Anl., 2005, P.U.) (Anl., 2013, G.U.)
Q.5.
Distinguish between Private and Public Nuisance.
Q.6.
What is a “Private Nuisance”?
Q.7.
Write a note on remedies for private nuisance.
Q.8.
What is the difference between public and private nuisance?
Q.9.
Distinguish between public nuisance and private nuisance. What are the defences available against an action for nuisance?
(June, 2003, M.U.) (Anl., 2013, M.U.)
Q.10. What is “Nuisance”?
Q.11. Public Nuisance.
When can an individual initiate private action in respect of Public Nuisance?
(Sept., 2005, O.U.) (Anl., 2011, G.U.)
Distinguish between Private Nuisance and Public Nuisance.
How it is constituted?
(May, 2005, G.U.) (Anl., 2011, N.U.)
(May, 2003, B.U.)
Elaborate the scope of public nuisance.
(Aug., 2004, O.U.) (Anl., 2013, P.U.)
Distinguish between Public Nuisance and Private Nuisance.
(Anl., 2012, A.U.)
(SN) (2913/2, K.U.) (2913, K.U.) (Dec., 2007, O.U.)(May, 2009, O.U.) (DeC:, 2009, O.U.) (May, 2010, O.U.)
(Jan., 2012, O.U.) (Sept., 2012, O.U.)
Q.12. Nuisance.
Q.l3. Nuisance and Trespass.
Q.l4. Essentials of Nuisance.
(SN) (Anl., 2004, N.U.) (Anl., 2010, N.U.) (Anl., 2011, D.U.)
(SN) (Jan., 2007, Burd. U.)
(SN)
122
The Law of Torts
Q. 15. DIFFERENCE BETWEEN NUISANCE AND TRESPASS.
(SN) (AnI., 2010, Burd. U.)
Q.16. Dr. Ram Raj Singh vs. Babulat (AIR 1982 All. 285).
(SN) (AnI., 2011, K.U.)
Q.17. Campbell vs. Paddington Corporation (1911) 1 K.B. 869).
(SN)
Q.18. Environmental Pollution.
(SN)
Q.19. # Benjamin vs. Storr (1874 LR 9 CP 400).
Q.20. “Salus populi est suprema lex.
(SN) (AnI., 2010, A.U.)
(Regard for the public welfare is the highest law.)
Q.21. PRIVATE NUISANCE.
(SN)
(SN) (Sept., 2009, O.U.) (AnI., 2011, S.U.) (AnI., 2011, S.K.U.)
Q.22. Radhey Shyam vs. Gur Prasad (AIR 1978 All. 86).
(SN)
Q.23. “Nuisance is a Continuing wrong." - Explain.
Q.24. DISTINCTION BETWEEN PUBLIC NUISANCE AND PRIVATE
(SN)
NUISANCE.
(SN) (AnI., 2009, O.U.) (AnI., 2010, K.U.) (AnI., 2011, N.U.)
Q.25. DEFENCES.
(SN)
Q.26. Law of Prescription.
(SN)
Q.27. “Vigilantibus non dormientibus jura subvenient.” (The equity comes to the aid of the vigilant and not the slumbering.)
ANSWER:
NUISANCE - PUBLIC NUISANCE AND PRIVATE NUISANCE
(EQ/SN)
MEANING:
Nuisance, (n.) = The word “nuisance” has been derived from the French word “nure”, and Latin
word “no care”, which mean “to do hurt or to annoy”. The term “nuisance” iiteraliy means
annoyance; anything which works hurt, inconvenience, or damage, or which essentiaiiy interferes with
the enjoyment of life or property.
In Tort, nuisance means any act, omission, place, or thing which causes or is likely to cause injury,
danger or offence to the sense of sight, smell or hearing or which is, or may be dangerous to life or
injurious to health or property.
Examples: High volume of radio or television disturbing the neighbours, roots or branches of a tree of
one’s into the land of another, injurious gases of a factory spreading in the vicinity, pollution, etc.
DEFINITIONS:
Blackstone: “Nuisance as something that worketh hurt, inconvenience or damage.”
Salmond: “Nuisance isincapabie of exact definition but for the purposes of the law of tort, it may be
described as unlawful interference with a person’s use or enjoyment of land or some right over, or in
connection with it... the wrong ofnuisance consists in causing or allowing without lawfulJustification (but
so as to common to a trespass) the escape of any deleterious thing from his land or from elsewhere
into land in possession of the plaintiff, e.g., wate,r smoke, smell, fumes, gas, noise, heat, vibration,
electricity, disease, germs, animals, negligence.”
Winfield: “Nuisance is incapable of exact definition but for the purposes of the law of tort, it may be
described as unlawful interference with a person’s use or enjoyment of land or of some right ove,r or in
connection with it.”
Pollock: “Nuisance is the wrong done to a man by unlawfully disturbing him in the enjoyment of his
property, or, in smoke cases, in the exercise of common right.”
ESSENTIALS OF NUISANCE:
1.
Nuisance is an unlawful interference with plaintiff’s use or enjoyment of land, or some right over,
or in connection with it. Generally it is a continuous tort.
2.
It does not affect the plaintiff directly, but affects in consequential and indirect means.
3.
Nuisance is caused by the intangible objects such as vibrations, gas, noise, smell, electricity,
smoke, etc.
4.
Nuisance is of two kinds: public nuisance and private
nuisance.
Kinds of nuisance: Nuisances may be divided into two main headings, viz., (1) Public Nuisance;
and (2) Private Nuisance.
Difference between Nuisance and Trespass: There are several similarities between nuisance
and trespass. Both of them unlawfully interfere with a person’s use or enjoyment of land, or some right
over, or in connection with. However, there are differences between them, which are given as under:
Unit - III; Specific Torts
123
DISTINCTION BETWEEN NUISANCE AND TRESPASS
NUISANCE
1.
TRESPASS
Nuisance is an indirect interference with the
1.
plaintiffs property.
2.
3.
It is created by some intangible objects such
as gas, noise, smell, smoke, pollution,
vibrations, electricity, etc.
2.
It interferes the plaintiffs use or enjoyment of
3.
It is always by some material or tangible
It interferes with possession of the land or
property of plaintiff.
A plants a tree in his own land. The tree grows, .
and its branches and roots spread into the land
4.
A's building has become ruinous, and it may
collaspe at any time and fall upon B’s house. A
and B notice it. But A does not take proper
A occupies B's land forcibly and plants trees. It
is a trespass.
of B. It is nuisance.
5.
Trespass is a direct interference with the
plaintiffs property.
objects.
land or property.
4.
(EQ/SN)
5.
A throws some stones upon his neighbour-B's
house. It is a trespass.
6.
Trespass is actionable perse i.e. without proof
steps to prevent it. Some of the walls of A's
house fell upon on B's house. It is a nuisance.
6.
Nuisance is actionable only when the special
damage is proved.
of damage.
DEFINITION OF PUBLIC NUISANCE & OFFENCES RELATING
TO PUBLIC HEALTH [Ss. 269 - 278]
(EQ/SN)
INTRODUCTION: Chapter-XIV contains Sections 268 to 294-A. This Chapter deals with the specific
instances of nuisance relating to Public Health, Public Safety, Public Convenience, Public
Decency and Public Morals. These are the various species of the Public Nuisance. These are as
follows:—
1.
Public Nuisance is defined in Section 268;
2.
Acts likely to spread infection causing affects on the Public Health - Sections 269 to 271;
3.
Adulteration of food or drink causing affects on the Public Health - Sections 272 & 273;
Adulteration of Drugs causing affects on the Public Health - Sections 274 to 276;
4.
5.
Fouling water of a public spring or reservoir causing affects on the Public Health - Section 277;
6.
Making atmosphere noxious to health causing affects on the Public Health - Section 278;
7.
Rash driving or riding affects on the Public Safety - Section 279;
8.
Rash navigation affects on the Public Safety - Sections 280 & 282;
9.
Exhibition of false light, mark or buoy affects on the Public Safety - Section 281;
10.
Danger or obstruction in a public way or line of navigation affects on the Public Safety - Section
283;
11. Negligence in respect of poison (Sec. 284), fire (Sec. 285), or explosive substances (Sec. 286)
affect on the Public Safety;
12. Negligence in respect of machinery (Sec. 287), building (Sec. 288), or animals (Sec. 289) affect
on the Public Safety;
13.
Selling obscene literature and pictures (Ss. 292 & 293), or doing obscene acts (sec. 294) affect
on the Public Morals;
14. Keeping a lottery office (Section 294-A) affects on
the Public Morals.
PUBLIC NUISANCE [S. 268]
(SN)
Section 268 of the Indian Penal Code defines “Public Nuisance”:
Sec. 268. Public nuisance.— A person is guilty of a public nuisance who does not act or is guilty of an illegal omission
which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy
property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have
occasion to use any public right.
A common nuisance is not excused on the ground that it causes some convenience or advantage.
IMPORTANT POINTS:
A.MEANING: (Pron. = /'nu.S9ns/)
In the English Criminal Law, public nuisance is a class of Common Law Offence in which the injury,
loss or damage is suffered by the local community as a whole rather than by individual victims. A
The Law of Torts
124
person is guilty of a public nuisance (also known as the Common Nuisance), who (a) does an act
not warranted by law, or (b) omits to discharge a legal duty, if the effect of the act or omission is to
endanger the life, health, property, morals, or comfort of the public, or to obstruct the public in
the exercise or enjoyment of rights common to all the citizens. Public nuisances injuriously affect
the welfare of the community. Therefore, they are dealt with by or in the name of the State, or by
corporate bodies specially authorised by Statute to intervene.
B. EXAMPLES: (a) Digging a trench on the public path; (b) accumulating the stones, sand in the
streets: (c) constructing structures on a public path; (d) polluting the public drainage system;
(e) pouring polluted gases, liquids in tanks, canals or underground; (f) environmental pollutions, etc.
C. OBJECTS: Public nuisance is a crime. It is a punishable offence. The State is entrusted the
liability to arrest and produce the accused before the Courts and get him punished. The provisions of
the criminal are attracted to punish the wrong-doer in offence of public nuisance. .
D. Circumstances under which a private person can have a right of action in respect of public
nuisance: Public nuisance is caused to the public. The general principle of the law says that a single
person or group of persons is not entitled to sue the accused directly. He can complain the concerned
lawful authority. However, if any special damage is caused to a person, he can sue the defendant,
even though it is a public nuisance. The aggrieved person shall have to prove the special or particular
damage occurred to him.
Dr. Flam Raj Singh vs. Babulat (AIR 1982 All. 285)
(Public Nuisance)
Brief Facts: The plaintiff was a doctor, and maintaining a clinic in his own residence in a residential
colony. The defendant erected a brick grinding machine besides the plaintiff’s house. The dust of the
machine had spread in the vicinity, and polluted the nearby houses. The patients feared to come to the
plaintiff’s hospital, due to the dust, sound of the machine, and gradually the income ofthe plaintiff was
reduced. He sued the defendant.
JUDGMENT: The Allahabad High Court ordered the defendant to pay the damages to the plaintiff,
and also to shift the machine to a faraway place from the residential houses.
PROBLEM: Shyam Prasad erected a brick grinding machine on his land adjoining the premises of
Sohan, a medical practitioner. The brick grinding machine generated dust, polluted the atmosphere
and caused physical discomfort to Dr. Sohan and his patients. Dr. Sohan wants to proceed legally
against Shyam Prasad. Advise him. (June, 2011, O.U.)
SOLUTION: Dr. Sohan can proceed legally against Shyam Prasad and he will definitely succeed. In
Dr. Ram Raj Singh vs. Babulat (AIR 1982 All. 285), the Allahabad High Court ordered the defendant
to pay the damages to the plaintiff, and also to shift the machine to a faraway place from the residential
houses.
Campbeii vs. Paddington Corporation (1911) 1 K.B. 869)
(Pubiic Nuisance)
Brief Facts/SOLUTiON: The plaintiff was the owner of a building in London. The funeral procession
of King Edward VII was scheduled to pass from a highway just in front of the plaintiff’s building. Plaintiff
and her family members wanted to see the procession. She also collected some money from some
persons to see the procession. The Corporation erected a construction just in front of the plaintiff’s
building to see the procession for their members. The said construction on highway obstructed the
view of the plaintiff.
JUDGMENT/SOLUTION: The King Bench held that the plaintiff was entitled to claim compensation.
E. Environmental Pollutions:
The Law of Public Nuisance occupied a prominent place in the
Due to industrialization, urbanization and heavy population growth, the
environmental pollution is occurring in many ways, viz. land pollution, air pollution, water pollution,
traffic pollution, etc. All these pollutions invade the people’s health and property. The Supreme Court
interpreted Article 21 of the Constitution with the human rights, and opined that “Right to life” in
Article 21 includes living with healthy circumstances and environment without pollution. It gave
judgments in Vellore Citizen’s Welfare case, Ganga Poilution case, Tajmahal Pollution case,
etc. against the public nuisance. [Refer to the case-law and topics of “Public Nuisance” in the
Environmentai Law Notes ]
Environmental Law.
s
D. By a public nuisance, the rights Which are common to all subjects are infringed. Such rights are .
unconnected in anyway with possession or title to immovable property.
i
125
Unit - III: Specific Torts
# Benjamin vs. Storr (1874 LR 9 CP 400)
(Public Nuisance)
Brief Facts/PROBLEM: The plaintiff was maintaining a business behind a highway. As there was a
heavy traffic, he earned good profits. Due to the heavy traffic, there were accidents on that highway.
The traffic authorities diverted the traffic in another rout, so that to decrease the accidents, and to
soften the flow of the heavy traffic in a peaceable manner. This resulted to heavy loss to the plaintiff.
The plaintiff sued the defendant alleging that due to diversion of the traffic his business was decreased,
and he was put in loss, and claimed damages.
JUDGMENT/SOLUTION: The House of Lords held that the plaintiffs profits seemed to be too remote
a damage to give him a right of private action. They also opined that to avoid the public nuisance, the
State had authority to change the traffic according to their plans. In this, they did not cause any
nuisance or harm to the plaintiff. The plaintiffs claim was totally rejected.
PRIVATE NUISANCE
(SN)
MEANING: Private nuisances are those which specially affect individual persons or their property and
for the suppression of which the individuals aggrieved are entitled to invoke the assistance of the
Courts.
ESSENTIALS:
1. Private nuisance Is a civil wrong. The State does not take initiative steps to punish the wrong
doer. The aggrieved party himse|f has to file the case before the Court to punish the defendant.
2. Unreasonable interference: In a private nuisance, the defendant may interfere the plaintiff
unreasonably and unnecessarily. Example: Your neighbour raised the radio or television sound so that
you cannot hear anything in your house is a private interference. Every person has the right to use his
property, but he should not disturb others. Your neighbour hears the radio in a low sound; you have no
right to demand him to stop the radio. Your neighbour planted trees, and the branches of one of the
trees gradually growing and breaking the tiles of your roof. It is a private nuisance, and you are entitled
to get them cut down.
Radhey Shyam vs. Gur Prasad (AIR 1978 All. 86)
(Public Nuisance)
Brief Facts/PROBLEM: The plaintiff had erected and started a ginning mill. After some time, the
defendant obtained permission to erect a bricks factory besides the ginning mill. While the defendant
was constructing the kiln, the plaintiff objected alleging that by constructing the bricks factory behind a
ginning mill was meant to invite the danger by means of fire, by which the cotton in ginning mill would
be burnt on any day by the fire of kiln, and moreover, the dust of bricks would spoil the quality of the
cotton.
JUDGMENT/SOLUTION: The Allahabad High Court admitted the argument of the plaintiff and granted
injunction against the defendant.
3. Continuing Wrong: Generally, a private nuisance is a continuing wrong. In majority of the cases,
a private nuisance does not occur with a single occasion. It accumulates as the time passes. It Is a
state of affairs, however, temporary, and not merely an isolated happening. However, it does not mean
that an isolated interference is not a private nuisance. An intermittent interference may probably be
• more annoying and hurtful than a constant one, and thus becomes a private nuisance.
4. Malice: If the defendant Interferes with evil motive, and his interference is unreasonable, it is actionable.
If the defendant interferes with evil motive, and his interference is reasonable, it is not actionable.
5. Effect: By a private nuisance, the plaintiff may sustain injury either to his property or to his health.
The burden of proof lies upon the plaintiff to show how much damage caused to him by the unreasonable
interference of the defendant.
6. Damage: A suit of trespass is actionable perse, i.e. the plaintiff need not prove the actual damages
caused to him. In a suit of private or public nuisance, the plaintiff has to prove the extent of loss and
inconvenience happened to him, and the actual damages caused to him.
7. Law of Prescription: If the Interference continues, and the plaintiff does not take any steps to
protect his right, the defendant gets possessory rights and possessory remedies over such interference
under the Law of Prescription. However such interference must be in reasonable degrees. This is not
possible in case of public nuisance.
126
The Law of Torts
DISTINCTION BETWEEN PUBLIC NUISANCE AND PRIVATE NUISANCE
PUBLIC NUISANCE
PRIVATE NUISANCE
1.
Public nuisance is a crime.
1.
2.
It is an infringement of public right.
It is interference with the rights of public in
2.
3.
3.
general.
4.
Private nuisance is a civil wrong.
It is an infringement of right of a private person.
Private nuisance is interference with the rights
of a particular person.
The lapse of time cannot legalize public
4.
nuisance.
5.
(SN)
In due course of time under certain
circumstances the nuisance may be legalized
under the Law of Prescription.
In the case of public nuisance, a person may
bring an action if "special damage or injury" is
5.
In case of private nuisance, the injured person
may bring an action.
caused to the plaintiff. In case of
Environmental Pollutions-cum Public
6.
Nuisance, any person can sue the polluter.
As it is a State's duty, the responsibility lies
6.
upon the State to prove the interference of
defendant.
The plaintiff must prove interference with his
enjoyment of land.
DEFENCES
(SN)
1. Law of Prescription: “Vigilantibus non dormientibusJura subvenient.” (The equity comes to
the aid of the vigilant and not the slumbering.) The Law of Prescription is based upon this maxim. The
loss is caused to the plaintiff by the 'unreasonable interference’ of the defendant. It is the duty of the
plaintiff to raise the objection immediatelyor within the reasonable time. If he sleeps and omits to claim
his demand, the Law of Prescription gives the possessive right to the defendant. The defendant can
plead the Law of Prescription as his defence.
2. Statutory Authority: If the interference is authorised by the State, the aggrieved person cannot
claim damages. Example: Railways are run for public convenience and conveyance, and the railway
lines are arranged for this purpose. The riots or residents beside the railway line cannot claim that due
to noise, vibration, smoke or fire of railway engine, they sustained loss to their health or property.
Hence Statutory Authority is a good defence. However, it must be reasonable and based upon the
public policy and for public good.
3. Volenti non fit injuria: If the plaintiff himself invites the interference, it becomes a good defence to
the defendant. However, it changes depending upon the circumstances. Example: Where a factory
emits polluted gases injurious to the health of persons and animals in the vicinity. Z knowingly purchased
a house-site and constructed a house. The defendant-factory
owner cannot make it as a defence of
Vo/enf/...” Under such circumstances, this defence becomes very dull and not useful.
4. Nuisance done by several: Where a nuisance is done by several persons, and the plaintiff sued
one of them, and such defendant can plead that the interference was done by several others. However
it is also a weak defence. For example: There is an apartment. Besides to it, the plaintiff has a house
and vacant place. The occupants of the apartment have begun to throw the waste things from windows
and balconies on the house and vacant place of the plaintiff. He is entitled to the damagesfrom one
all the residents of the apartment.
l"Gade Veera Reddy
I
I
I
I
I
I
I
LL.M. ENTRANCE TEST
(Multiple Choice Questions with Answers)
(Also useful for U.P.S.C., A.P.P.S.C., Civil Prelims,
JURISPRUDENCES LEGAL THEORY
THE CONSTITUTION OF INDIA
PUBLIC INTERNATIONAL LAW
etc.)
I MERCANTILE LAW (THE INDIAN CONTRACT ACT, 1872)
I
LABOUR LAW (THE TRADE UNIONS ACT, 1926, + THE INDUSTRIAL DISPUTES ACT, 1947)
I
THE INDIAN PENAL CODE, 1860 + THE LAW OF TORTS
I
THE INTELLECTUAL PROPERTY LAWS
^No. of Pages : 480
No. of Bits : About 2800
Cost : Rs. 300/-
or
Unit - III: Specific Torts
3.G.
127
TORTS RELATING TO MOVABLE PROPERTY / SLANDER /
TRESPASS TO GOODS, DETINUE AND CONVERSIONS
Q.l.
Define the Tort of Conversion and mention the various
trespass to goods?
How does it differ from
defences in which the tort may be committed,
(Ani. 2005, P.U.) (Ani., 2013, M.U.) (Ani., 2014, A.U.)
Q.2.
Explain Torts relating to movable property.
Q.3.
Explain the ingredients of the Tort of Conversion citing relevant cases.
Q.4.
What is conversion?
Q.5.
Explain the elements of the Tort of Conversion.
(Feb., 2005, O.U.) (Apr., 2009, O.U.)
Explain the various forms of Conversion.
(An!., 2010, K.U.) (Ani., 2012, M.U.)
Bring out the essentials of conversion with reference to decided cases. (June, 2003, M.U.) (Ani., 2012, B.U.)
Explain the nature of an action for slander of title.
In order to succeed in such an action, what facts are established by the plaintiff?
How does an action for Slander of Title differs from an action of defamation?
(Ani., 2013, G.U.) (Ani., 2012, B.U.)
Q.6.
Conversion by sale and keeping.
(SN) (May, 2006, B.U.)
Q.7.
Conversion of Goods.
(SN) (May, 2005, G.U.)
Q.8.
Meaning of “Trespass to Goods”.
(SN)
Q.9.
Essential Ingredients of Trespass to Goods.
(SN)
Q.10. DETINUE (WRONGFUL DETENTION).
(SN)
Q.11. Meaning and Essentials of Detinue.
(SN)
Q.12. The Torts (Interference with Goods) Act, 1977 (England).
(SN)
Q.l 3. CONVERSION (TROVER) (WRONGFUL CONVERSION).
(SN)
Q.14. # Fouldes vs. Willoughby (1841, M&W 540).
(SN)
Q.l5. # Hollins vs. Fowler (1875, L.R. 7 H.L. 757).
(SN)
Q.16. Seton vs. Lafone (1887) 19 QBD 68).
(SN)
Q.17. Armory vs. Delamire (1721) 1 Str. 505).
Q.l8. REPLEVIN.
(SN)
(SN) (July, 2002, S.V.U.) (AnI., 2010, S.K.U.) (Ani., 2011, N.U.) (Ani., 2012, A.U.)
ANSWER:
TORTS RELATING TO MOVABLE PROPERTY / SLANDER /
TRESPASS TO GOODS, DETINUE AND CONVERSION
(EQ/SN)
INTRODUCTION: There are certain torts, which may be committed against the movable properties,
such as vehicles, animals, chattels, etc. The wrong-doer invades on the rights of the real owner and
makes him loss and dispossesses him. It is also called as “Slander to Goods”. These torts to
immovable property are: (i) Trespass to Goods; (ii) Detinue; and (iii) Conversion.
(I)
SLANDER/TRESPASS TO GOODS
(SN)
MEANING: “Trespass to goods” means unlawfully disturbing the possession of the goods by seizure
or removal or by a direct act causing damage to the goods.
Examples:
(a) Writing the names, or spoiling the seats of Bus or of train;
(b) throwing stones on a vehicle;
(c)
removing a spare part from a vehicle;
(d)
beating animals;
(e)
infecting the animals with diseases;
(f)
killing animals by giving them poisonous food;
(g) shooting the birds, etc.
ESSENTIAL INGREDIENTS OF TRESPASS TO GOODS:
1. Trespass to goods is an interference with the possession: It is the first essential of a tort of
trespass to goods. The plaintiff need not be the owner. It is sufficient that he is a possessor of the
goods. The law says that "Possession is nine points of law out of ten.” If the defendant interferes the
possession and enjoyment of the goods of the plaintiff, he becomes the wrong-doer. The defendant
cannot plead the plea of “Jus tertii”(the right of the third party), i.e. he cannot argue that the goods do
not belong to the plaintiff and they belong to someone else. The tort of trespass to goods primarily
deals with the possession only.
effect on the possession of the goods of the
plaintiff, that there must be direct interference on the enjoyment and possession. Even though, the
plaintiff has no good title, he can sue the defendant for his interference. The defendant may commit
trespass to goods intentionally, negligently or by an honest mistake.
2. Direct interference: The act of the defendant must
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The Law of Torts
3. Without lawful justification: Where the defendant cannotjustify his act in interfering the plaintiffs
goods, he is the guilty of trespass to goods. If the defendant has a lawful justification, as in case of
“Distress damage feasant”, he is excused from his wrong. “Inevitable accident” is also a good
defence to the defendant. Where there is no lawful justification, the defendant is held liable for his
trespass to goods.
(II)
DETINUE (WRONGFUL DETENTION)
(SN)
MEANING: “Detinue” means the wrong-doer detains the plaintiff’s goods and even after the demand
refuses to hand over them to the plaintiff. Detinue is a writ or proceeding which is instituted against
person who having goods or chattels delivered ;to keep,
a
refuses to re-deliver them to the owner.
Examples:
(a) A-bailor handed over his goods to B-bailee for certain purpose. After completing the purpose, A
claims his goods. B refuses to return the goods. It is a detinue,
(b) X goes to a theatre. He keeps his scooter in stand. After the show, the stand keeper refuses to
give the scooter to X. It is detinue.
ESSENTIALS OF DETINUE:
1. Title: The plaintiff must have the ownership or constructive possession over the goods. He must
have a property in them.
2. Value: The goods must have some value. In an action for recovery of the goods, the defendant
must return the goods or their value.
3. Identity: The goods must have identity, and shall have been ascertained. They must be specifically
ascertained, known and able to be recovered. If the goods are returned to the owner, it is not a detinue.
However, the owner can claim damages under the rules of contract, but not under the trespass to
goods or detinue.
4. Defendant in possession: First, the defendant was put in possession of the goods by the plaintiff
or by his representative. That means, the defendant obtained the plaintiff’s goods lawfully. However,
thereafter, he refuses to return the goods.
5. Mode of Action: Detinue is a mode of action given for the recovery of a specific thing and damages
for its detention. Though judgment is given in favour of the plaintiff ordering the alternate value as a
relief, the thing itself is the main object and inducement to the allowing of the action.
6. Abolition of Detinue: The law on “Detinue” was abolished in England by Torts (interference
with Goods) Act, 1977, and the principles of it have been included in the Law of Conversion. In
India, there is no special law for “Detinue”, but the provisions of the Specific Relief Act, 1963 and
the Code of Civil Procedure Code, 1908 deal with it.
(III)
CONVERSION (TROVER) (WRONGFUL CONVERSION)
(SN)
CONVERSION
Q.l. What is meant by ‘Conversion’? Explain the Tort of Conversion referring to decided cases.
Q.2.
DISTINCTION BETWEEN CONVERSION AND THEFT & UNJUSTENRICHMENT
Q.3.
Conversion of Tort.
.
(SN)
(SN) (Aug., 2012, O.U.) (Sept., 2013, O-U.)
ANSWER:
CONVERSION
(EQ/SN)
MEANING:
Conversion is a Common Law Tort. A conversion is a voluntary act by one person
inconsistent with the ownership rights of another. It is a tort of strict liability in the United Kingdom.
Its criminal counterpart is npt typically theft but rather criminal conversion, which differs from theft in
the lack of intent to deprive the owner of possession of the property.
EXAMPLES: (a) where trees are cut down and the lumber hauled from the land by someone not
having clear ownership: (b) removing furniture belonging to anotherfrom a cohabited dwelling, placing
it in storage and not telling the owner of the whereabouts, (c) In medieval times, a conversion would
occur when bolts of cloth were bailed for safe keeping, and the bailee or a third party took them and
made clothes for their own use or for sale, (d) In order for a conversion to occur, it used to need to be
lost then found by some other person than the owner. In the process, it was a possible that the
property could be converted, (e) Chattels converted have included a dog, money and tax receipts, (f)
Land could not be the subject of an action in trover, since it could not be lost, then found and converted.
The same was true for sand and gravel, timber, crops and fixtures, so long as they were considered
as a part of the land. No action in trover could be had. Once there was severance from the land, these
became personal property, and trover could be entertained because of removal from the land, (g) The
Unit - III: Specific Torts
129
conception that an action for conversion lies only for tangible property capable of being identified and
taken into actual possession is based on a fiction by which the action of trover was founded, namely,
that the defendant had found the property of another, which was lost. This conception has become, in
the progress of the law, something without meaning which has been discarded by most courts.
Therefore, it has been generally accepted that an action for conversion lies for every species of personal
property which is the subject of private ownership, whether animate or inanimate. Intangible
property can be the subject of a conversion, (h) There cannot be an action in conversion for choses
in action or mere debt, (h) Computer software can be the subject of a conversion, (i) A common
conversion is a refusal to surrender possession of the chattel to one who is entitled to it. Normally, this
is judged to be a sufficiently serious interference with the plaintiff’s right of control. If the detention is
small or not deemed to be serious, it will not be considered a conversion. A garage which delays
delivery of an automobile for 30 minutes does not commit a conversion. The same is true of a stock
certificate. Placing furniture or other goods in storage to prevent damage or theft is also not a
conversion, perse, if proper notice of its location is given to the owner. If the delay is long, or intentional,
it is a conversion, (j) Holding an automobile fora month is a conversion, (k) Goods placed in storage
or in bailment destroyed by fire are considered to have been converted.
In 1704, in Baldwin v Cole (1704) 6 Mod Rep 212, 87 ER 964), the Court held: “The very denial of
goods to him that has a right to demand them is an actual conversion, and not only evidence of it.”
Both tangible items and intangible property can be the subject of a claim for conversion under United
States law. In Kremen v. Cohen, 325 F.3d 1035 (9th Cir. 2003), when the domain name sex.com was
wrongfully transferred to a con man, a claim for conversion was held to be available against the domain
name registrar. In English law, however, the recent case of OBG Ltd. v. Allan [2007] UKHL 21 held
intangible property cannot be the subject of a claim for conversion.
Many questions concerning joint ownership in enterprises such as a partnership belong In equity,
and do not rise to the level of a conversion. Traditionally, a conversion occurs when some chattel is
lost, then found by another who appropriates it to his own use without legal authority to do so. It has
also applied in cases where chattels were bailed for safe keeping, then misused or misappropriated
by the bailee or a third party.
DISTINCTION BETWEEN CONVERSION AND THEFT & UNJUSTENRICHMENT:
Conversion,
as a purely civil wrong, is distinguishable from both theft and unjust enrichment. Theft is obviously
an act inconsistehtwith another's rights, and theft will also be conversion. But not all conversions
are thefts because conversion requires no element of dishonesty. Conversion is also different
from unjust enrichment. If one claims an unjust enrichment, the person who has another's property
may always raise a change of position defence, to say they have unwittingly used up the assets they
were transferred.
ELEMENTS OF CONVERSION: The elements of a conversion cause of action are:—MEANING:
“Conversion” is also called as “Trover” or “Wrongful Conversion”. Conversion means where a
person finding or having the goods of another in his possession, converts them to his own use, without
the consent of the owner, and for which the property owner may maintain an action of Trover and
Conversion against him. Conversion is the wrongful taking or using or destroying of the goods, or an
title of the owner.For conversion, there always
must be an element of voluntarily dealing with ar other's property, inconsistently with their rights,
1.
the plaintiff has clear legal ownership or right to possession of the property at the time of the
exercise of dominion over them inconsistent with the
conversion:
2.
the defendant's conversion by a wrongful act or disposition of plaintiff's property rights;
3.
there are damages resulting from the conversion.
4.
In another formulation, it has been stated that one claiming conversion must show a tortuous
conversion of the chattel, a right to property in it, and a right to immediate possession
which is absolute, unconditional, and not dependent upon the performance of some act.
DAMAGES: The remedy for conversion is usually in the form of damages equal to the fair market
value of the chattel at the time of conversion. The converter can offer to return possession of the
chattel to the complainant, but the complainant is not obligated to accept. If the complainant wants the
chattel returned without any additional monetary damages, they can claim a related tort, detinue. One
may use force in order to recover a chattel only if the wrongdoer is either in the process of taking the
chattel or the owner of the chattel is in "hot pursuit" of the chattel. This is because a victim of
conversion should use the legal remedies available as opposed to "self-help" or violence. Deadly
force may never be used in the recovery of chattels.
The exact measure of compensation due to a plaintiff whose goods have been wrcingfully converted
may be merely nominal if the wrong is technical and the defendant can return the goods; it may be
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The Law of Torts
limited to tfie actual damage where the goods can be returned, but the wrong is substantial; but in
ordinary cases it is the full value to the owner of the goods of which he has been deprived.
DEFINITIONS:
Salmond: “A conversion is an act of willful interference, without lawfuljustification, with any chattel in a
manner inconsistent with the right of another whereby that other is deprived of the use and possession
of it.
Winfield: ‘Any act in relation to goods of a person which constitute an unjustifiable denial of his title
to
them.’’
Examples:
(a) A takes B’s book with an intention to steal it.
It is a conversion,
(b) A gives some jewellery to B for safe custody. B
(c) A gives cloth to B-tailor, who sells it to C. It
sells them. It is a conversion,
is a conversion,
(d) A has given his coat to B-Laundry man for ironing. B gives to C on rent. It is a conversion.
Modes of conversion: An act of conversion may be committed by any of the six methods:—
1. When the property is wrongfuily taken: A and B are the neighbours. A has a mango tree having
branches with fruits. The branches have over hanged in B’s land. B cuts all the fruits of the branch
which over hanged in his land, and eats. B is guilty of conversion. If there is no taking, there is no
conversion.
# Fouldes vs. Willoughby (1841, M&W 540)
(Conversion)
The defendant had a boat, and he used to convey the passengers from one side to another side of a
river. The plaintiff approached him along with two horses, and asked to convey him and his horses.
The defendant refused to convey the plaintiffs horses, but agreed to convey the plaintiff. The plaintiff
alone crossed/conveyed in the boat to the other side. Later he sued the defendant conversion of his
horses by the defendant. The Court held that the defendant had not committed conversion, and that
he had right to allow or not to allow the horses.
2. Conversion by parting with goods: If a man hands over goods to another so as to give him some
right over the property itself, whether as owner or dominius protempo,r it amounts to conversion.
Examples:
(a) A takes B’s horse on request to ride for one hour. Thereafter he leaves
compelled to pay some amount to take horse back. It is a conversion,
(b) A takes B’s coat on hire. A gives that coat to
(c)
the horse at an inn. Bis
an auctioneer for sale. It is a conversion,
Mis-delivery by a carrier amounts to conversion.
3. Conversion by sale: A wrongful sale of goods is
conversion.
# Hollins vs. Fowler (1875, L.R. 7 H.L. 757)
(Conversion)
Brief Facts: The defendant was a cotton broker. X-a
fraudulent person brought 13 bales of cotton
and handed over to the defendant for sale. In fact, X obtained those 13 bales from the plaintiff without
payment by playing fraud. X did not reveal the real facts to the defendant. Without knowing the real
facts, the defendant sold those 13 bales of cotton and handed over the cash to X, deducting his usual
commission. Later, the plaintiff, the original owner of the 13 bales of cotton, sued the defendant for
‘conversion’ and claimed damages.
JUDGMENT: The House of Lords gave the judgment in favour of the plaintiff treating the sale by the
defendant as a conversion and awarded damages to the plaintiff.
Principle: Lord Denning observed: “When the goods are sold by the intervention of an auctioneer
under the hammer or as a result of a provisional bid, then if the seller has no title, the auctioneer is
liable In conversion to the owner.”
Seton vs. Lafone (1887) 19 QBD 68)
(Conversion)
A had deposited goods with B, a warehouseman, for safe custody. B’s servant subsequently delivered
them by mistake to C. B not knowing the delivery, by mistake represented D that he was in possession
of the goods of A, and on behalf of A, he would sell them to D. D paid the amount and demanded
Unit - III: Specific Torts
131
delivery from B. Here the conversion was committed by B’s servant. As per vicarious liability principle,
B is liable to D.
4. Conversion when the property is wrongfully detained: Conversion may be committed by
detention of the goods. Example: Where a bailee refuses to return the chattel or goods to his bailor on
demand.
Armory vs. Delamire (1721) 1 Str. 505)
(Conversion)
A boy found some jewellery. He took it to a goldsmith to get assessed the value of it. The goldsmith
verified, and with an intention to fraud the boy, told him that it was not gold, he would give 3 half-pences.
The boy refused to take amount and demanded his Jewellery back. The goldsmith refused. The Court
held that the goldsmith committed conversion and the boy was entitled to take it back.
REPLEVIN
(SN)
This is an ancient remedy found in the English Law. Example: A takes away the goods of B unlawfully.
B sues A for his goods. The question of ownership shall have to be decided by the Court. It takes
time. In that occasion, B submits a petition to the Court that he would submit the security, value of the
goods to the Court, and requests the Court to hand over the goods to him. The Court may grant it. If
after the enquiry, it is decided that the goods belong to A, then B forgoes the security, and if it is decided
that the goods belong to B, the security is given back to B, besides imposing penalty or damage or
both against A. This is called “Replevin”.
In India, the Civil Procedure Code, 1908 and the Specific Relief Act, 1963 contain the similar
provisions, and underthose provisions, the Courts have discretionary powerto grant the “Replevin”.
ADVICE
THERE IS NO SHORT WAY TO SUCCESS. HARD WORK IS THE
MEANS AND WAY
TO SUCCESS. GET THOROUGH IN THE LAW SUBJECTS, IF YOU
WANT TO BE IN
THE PROMINENT PLACE IN THE LEGAL FIELD.
Each of the Sujatha Law Series is useful and helpful
to the students:—
1.
For getting the highest ranks, gold medals in LL.B. Degree;
2.
To get the highest marks in Bar Council’s Eligibility Test;
3.
To get the highest rank in PGLCET/LLMCET;
4.
To get the posts of Public Prosecutors/Judicial Service by helping in the screen test and
concept oriented test.
5.
At least for 15-20 years In practice.
Fill up the blanks with answers are given at the end of each Unit of majority subjects. If in any
subject. Fill up blanks will be added at the time of le Revised Edition of that subject.
Instead of Multiple Choice/Object Questions, I prefer to write fill up the blanks, because they consume
lesser space, and immediate attention. Don’t copy in the internal examinations. It will harm you. If
you study each subject with concept questions and later fill up the blanks, you will have greater
remembrance. It will be useful to you in the LL.B. Examinations, Bar Council’s Eligibility Test, LL.M.
Entrance Test, PP and Judicial Examinations, and any other competitive examinations.
Therefore, I advise you neither lend nor borrow your Sujatha Law Series.
I also advise the student to purchase Sujatha Law Series
at the time of admission into LL.B.
course. Thereafter, after writing the first semester, immediately purchase the second semester,
and Immediately start reading the subject.
Don’t purchase hurry-burry on or before the day of examination. It will be nothing useful to you. It
is just like ONE DAY WICKET or TWENTY-TWENTY MATCH. You cannot acquire knowledge in
that speed. There is no short way to success. Hard work is the means and way to success.
Get thorough in the Law Subjects, if you want to be in the prominent place in the legal
field.
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The Law of Torts
UNIT-III
SPECIFIC TORTS
SHORT/MINI QUESTIONS AND FILL UP THE BLANKS ARE USEFUL FOR THE INTERNAL
EXAMINATIONS OF LL.B., B.A. LL.B., B.B.A. LL.B., B.Com. LL.B., B.Sc. LL.B.
EXAMINATIONS.
THESE ARE ALSO VERY MUCH USEFUL FOR THE BAR COUNCIL
ENROLMENT ELIGIBILITY TEST, PUBLIC PROSECUTORS’ TEST,
EXAMINATIONS, AND OTHER COMPETITIVE EXAMINATIONS.
JUDICIAL
SHORT/MINI QUESTIONS AND FILL UP THE BLANKS WILL ALSO HELPFUL TO THE
STUDENTS FOR REFRESHING ENTIRE SUBJECT IN THE EXAMINATION HALL AND
TO GET HIGHEST MARKS.
BEFORE THE EXAMINATION DATE, YOU MUST REFRESH YOUR MEMORY BY READING
AND REFRESHING THE SHORT/MINI QUESTIONS AND FILL UP THE BLANKS OF EACH
SUBJECT.
ENTIRE SUBJECT SHOULD BE IN YOUR MEMORY AND GRIP.
_i
L
SPECIFIC TORTS - TORTS AFFECTING PERSONS
3.A.
1.
What is meant by the ‘Specific Torts’?
2.
What are the “Specific Torts”?
■3
TRESPASS TO PERSON - ASSAULT AND BATTERY
3.B.
ASSAULT
3.
What is meant by ‘assault’?
4.
What is the definition of ‘assault’ given by Arnold
5.
Give a few examples of assault.
6.
Which are not assaults?
7.
A points a gun at B. A knows, while B does not know, that the gun is loaded. Has A committed
any tort?
8.
Stephens was the plaintiff and the Chairman of a Parish meeting. Myers was a member
participating in the said meeting. During the discussion, the Defendant-Myers became angry,
and began to make an outcry, and disturbed the proceedings. The majority of the members of
the meeting resolved to expel the defendant. This caused further angry to the defendant. There
were six members in between the defendant and the plaintiff. The defendant advanced to the
Chairman with a clenched fist saying that he would send the Chairman out of the room, and
pulled him from the chair. He advanced to do this with annoyance. However, he was stopped
from doing so by the church warden, who sat next but one to the Chairman-plaintiff. The
plaintiff sued the defendant for an assault. What was the judgment of the Court?
9.
The plaintiff was an agriculturist. He had to pay Rs. 11.60 towards revenue arrears. The village
munsiff came to his house and demanded to pay the revenue then and there itself. The plaintiff
had no money at that time. The village munsiff threatened that he would take his ear-rings. He
called village goldsmith. Meanwhile some other paid the revenue on behalf of the plaintiff. The
plaintiff sued goldsmith and munsiff for assault. What was the judgment of the Court?
10.
A abuses B. B takes out his sword and tells A, “next time, if you use such language, I will kill
C.J.?
you.” Has A committed any tort?
BATTERY
11.
What is meant by ‘EJattery’?
12.
Give few examples of “Battery”.
13.
The plaintiff by mistake without purchasing ticket had been travelling in the train. The ticket
collector of the defendant company checkedrand found him ticketless, and asked him to get
out from the carriage when the train stopped in a station. The plaintiff refused to get down. The
ticket collector used force and pulled down the plaintiff. What was the judgment given by the
Court?
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Unit - III: Specific Torts
14.
The plaintiff was an under-trial prisoner. He was taken to hospital for treatment. The defendantpolice officer chained the plaintiff with handcuffs to a windowin the hospital room. The plaintiff
sued.
15.
Discuss.
Rahim assaulted Buron. Buron brought an action and recovered damages for the assault.
Sometime afterwards Buron had to have a bone removed from his skull because of the injuries
he had received; he then sought to bring another action in respect of this later injury. Is Rahim
liable?
16.
What is meant by “popular assault begins where legal
assault ends”?
17-
FALSE IMPRISONMENT
3.C.
[RESIDUARY TRESPASS TO THE PERSON]
17.
18.
19.
What is the meaning of ‘False Imprisonment’?
What is the definition of ‘False Imprisonment’ as given by Blackstone?
A part of the public footway, as opposed to carriageway, on Hammer Smith Bridge was wrongfully
enclosed by the defendant. Seats were arranged and fee was collected to show rowing. The
plaintiff insisted upon passing along the part so appropriated and attempted to climb over the
enclosure. The defendant pulled him back. The plaintiff succeeded in climbing over. He was
told to go back into the carriage way and proceed to the other side of the bridge, if he pleased.
The plaintiff refused to do so and remained there for
about half-an-hour. Later he sued the
defendant on the allegation of false imprisonment.
20.
21.
22.
The defendant coal company took the responsibility of transporting the workmen to the spot in
the mine underground and to outside at particular times in the morning and evening. The
plaintiff was a workman. He reached the work spot through the lift. Later he quarrelled with the
staff, and did not obey the instructions from the higher officers. He demanded to arrange lift so
that he could go outside of the mine. The defendant did not agree, and the lift was arranged
only in the evening along with other workers. The plaintiff sued for false imprisonment. What
was the judgment given by the Court?
The piaintiff/Maharani of Nabha was prevented from boarding a train by a sub-inspector. He
also prevented her car from being taken out of the railway compound. Is the defendant liable?
The plaintiff was a prisoner. He was acquitted. Again, he was brought to the prison by the
defendant police and detained him for a few minutes. The plaintiff was questioned by the
warders.
23.
Discuss.
The petitioner/M.L.A. was detained by police in orderto prevent him from attending the Assembly
Session. Is the M.L.A. entitled for damages?
24.
The plaintiff and her daughter went to a shop. The daughter stole some articles and put them
in her mother’s bag. Both of them were caught by the shop management, and be seated in a
hall for half-an-hour. Meanwhile the police came and arrested them. After enquiry, it was held
that the daughter did offence and mother was innocent. Mother was released.
plaintiff sued the defendant company for false Imprisonment. Discuss.
The Mother25
3.D. MALICIOUS PROSECUTION / ABUSE OF LEGAL PROCEEDINGS
26.
What is the meaning of ‘Abuse of Legal Process’?
What is the meaning of‘Champerty’?
27.
What is the meaning of ‘Maintenance’?
28.
What is the definition of “Maintainer”?
29.
What is the definition of “Champertous Agreement”?
30.
What is meant by ‘Malicious Prosecution’?
X filed a criminal case against Y by falsely alleging that Y has stolen his property. The criminal
Court acquitted Y from the charge under I.P.C. and found not guilty. Is there any remedy for Y
25.
31.
under law of tort to claim damages from X?
32.
Defendant Dallu was an illiterate villager. He engaged Satyakam-an advocate to defend his
case of disputed land. The advocate also took another land case from the opposite party of
Dallu. This caused annoyance to Dallu. He filed a petition before Bar Council, under the
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The Law of Torts
professional misconduct. Both the land cases were having similar boundaries. The Bar Council,
however, gave benefit of doubt to Satyakam-the advocate and dismissed Dallu’s petition.
Satyakam brought an action against Dallu contending malicious prosecution by the latter before
the Bar Council.
33.
The defendants were a railway company. An accident occurred to one of their trains, causing
serious injuries to several persons. The defendants company paid compensation to those
injured persons. X-a person claimed such compensation alleging that he was also injured by
that train accident, and obtained huge compensation from the defendants, showing serious
injuries on his body. The defendants paid compensation to him. Later they suspected that he
was not a passenger of that train, and did not sustain any injuries by that accident. They
appointed detectives to know the truth. They detected that the injuries of X were artificially
created by one Doctor Abrath, for the purpose of claiming compensation. The defendants sued
Dr. Abrath and and X, contending that both of them conspired and obtained huge compensation
by frauding the company. Decide.
34.
The plaintiff was prosecuted for an offence under Section 412 of Indian Penal Code for being in
possession of a ‘hansuli’ removed in a dacoity case. Defendant No. 1, the Station House
Officer of Police Station conspired with two other defendants in concocting the story against
the plaintiff falsely stating that ‘hansuli’ was recovered from the plaintiffs house. The plaintiff
was given benefit of doubt and was acquitted from the charges. He brought an action for
malicious prosecution against the defendants. Discuss.
35.
X agreed to give 3/4th of his property involved in litigation, to Y, in consideration of Yfinancing
the litigation. X succeeded in the litigation but failed to honourthe agreement with Y. Y wants to
sue. Can he succeed?
36-
3.E.
NERVOUS SHOCK
36.
What is the meaning of ‘Nervous Shock’?
37.
The plaintiff suffered mental shock due to the railway accident.
38.
A person P tells R, by way of joke that R’s husband has met with an accident and he is in the
hospital. R gets shocked and fell down. Can R sue P for the shock caused to her?
39.
The defendant’s servant drove a horse van negligently and rashly into a public house. The
plaintiff was a pregnant lady. She saw the rash driving and felt that the van would ran over her.
She suffered nervous shock. As a result of which she got seriously ill and gave premature birth
to a still born child.
40.
A funeral procession was going along a road, when a tramcar was so negligently driven by a
servant of the defendants that it violently collided with the hearse, damaged the hearse and
caused the coffin to the overturned with the result that the mourners at the funeral, who were
relatives of the dead man, suffered severe mental shock.
Decide.
41.
Defehdants were two private detectives. They want to inspect certain letters of X, in connection
with an investigation. On the instructions from the senior, the junior detective approached the
plaintiff-a maid servant of X, and threatened her if she would not show the letters of X, dire
consequences would follow. The plaintiff fell ill with nervous shock. The plaintiff sued the
defendants for damages. Discuss.
42.
A woman sent her two children for a work. After having parted with her, they went into a narrow
street. A lorry of the defendants was coming very negligently and rashly frightening the spectators
that it must kill some of the bystanders of the street. There was no way to escape. The woman
saw the lorry coming very speedily. She feared for the safety of her children. Some of the
bystanders told her that her children met accident crushed by the lorry, and one of the children
died. It caused nervous shock to her. She felt unconscious, and consequently she died.
Discuss.
43.
The defendant’s servant was negligently backing a taxicab into a boy on a tricycle. The boy’s
mother, who was in an upstairs window, at a distance of about 80 yards, could only see the
tricycle under the taxi-cab and heard the boy’s scream, but could not see the boy. The boy and
the tricycle were slightly damaged. But the mother suffered nervous shock. Is defendant
liable?
44.
The plaintiff was a fisher-woman. While she was 50 feet away, she heard a violent sound of an
accident. In that accident a motor cyclist died on the spot. She did not see the accident or
dead-body Motorcyclist’s dead body was removed. The scene was very awful with blood-
135
Unit - III: Specific Torts
stains. Thereafter some time, she happened to visit the spot, and saw the blood accumulated
on the spot. Seeing the blood, the plaintiff suffered nervous shock, and had given a birth to a
still born child. She sued the personal representatives of the motorcyclist for the damages for
causing nervous shock to her and for the delivery of a still born child. Decide.
45
3.F.
3.R(i).
TORTS AFFECTING IMMOVABLE PROPERTY
TRESPASS TO LAND
45.
What is the meaning of ‘Trespass to land’?
46.
Define ‘Criminal Trespass’ as defined in the Indian Penal Code, 1860?
47.
What is meant by ‘Constructive Trespass’?
48.
Can the Revenue Authorities enter into the land of
49.
A without his permission?
A person purchases a cinema ticket to see a picture for the First Show. He wants to see the
■Second Show also without purchasing ticket, and remains in the theatre. Is he a trespasser?
50.
Give few examples of ‘Constructive Trespass’.
51.
What is meant by ‘Actionable perse’7
52.
A invites B for dinner. Can B enter into bed room without permission?
53.
Can a man’s cattle enter into the land of another?
54.
What is meant by “Distress Damage Feasant”?
55.
What is meant by “Mesne Profits”?
56.
What is meant by ‘Aerial Trespass’?
57.
What is meant by ‘Abatement of nuisance’?
58.
What is meant by “Easement”?
59.
What is meant by ‘Prescription’?
60.
What is meant by “Trespass ab initio”?
61.
Six carpenters entered into an inn and there they ordered for wine and bread. After consuming
the wine, they refused to pay for the items served. Except that they did not commit any wrongful
act. Is their act considered as trespass ab initio?
62.
The defendants were police officers. They entered into the plaintiffs house to make a lawful
arrest. They removed certain documents without having any lawful authority to do that. Is their
act considered as trespass ab initio?
63.
The plaintiff went to see a horse-race after purchasing a ticket for it. In the middle of the game,
due to unavoidable circumstances, the defendants cancelled the ticket, and requested visitors
to vacate the place. The plaintiff refused. The servants of defendants forcibly got him out.
What was the decision of the Court?
64.
The plaintiff went to defendants’ theater to see a picture. He purchased a ticket and sat down in
his seat. In the middle of the show, the gate keeper suspected that he was a ticketless person,
and informed the same to the defendants. The defendants asked the plaintiff to vacate the
seat, and to go out. The plaintiff refused to do so. On defendants’ instructions, gate keeper
lifted the plaintiff from his seat. Thereafter, the plaintiff went out of the theater without commenting.
He sued the defendants for assault and false imprisonment. The defendants argued that the
plaintiff was a trespasser ab initio. What was the Court judgment?
•65
3.F.(ii).
NUISANCE - PUBLIC NUISANCE AND PRIVATE NUISTANCE
NUISANCE
65.
What is the meaning of ‘nuisance’?
66.
Write the definition of nuisance as given by Blackstone.
67.
Write the definition of nuisance as given by Saimond.
68.
Write the definition of nuisance as given by Winfield.
69.
Write the definition of nuisance as given by Pollock.
The Law of Torts
136
PUBLIC NUISANCE
70.
Write the meaning of ‘Public Nuisance’.
71.
Write the definition of pubiic nuisance as provided in the indian Penai Code, 1860.
72.
The plaintiff was a doctor, and maintaining a clinic in his own residence in a residential colony.
The defendant erected a brick grinding machine besides the plaintiffs house. The dust of the
machine had spread in the vicinity, and polluted the nearby houses. The patients afraid to
come to the plaintiffs hospital, due to the dust, sound of the machine, and gradually the income
of the plaintiff was reduced. He sued the defendant.
Is defendant liable?
73.
Give few examples for public nuisance.
74.
The plaintiff was the owner of a building in London. The funeral procession of King Edward VII
was scheduled to pass from a highway just in front of the plaintiffs building. Plaintiff and her
family members wanted to see the procession. She also collected some money from some
persons to see the procession. The Corporation erected a construction just in front of the
plaintiffs building to see the procession for their members. The said construction on highway
obstructed the view of the plaintiff. Is the defendant liable?
75.
The plaintiff was maintaining a business behind a highway. As there was a heavy traffic, he
earned good profits. Due to the heavy traffic there were accidents on that highway. The traffic
authorities diverted the traffic in another root, so that to decrease the accidents, and to soften
the flow of the heavy traffic in a peaceable manner. This resulted to heavy loss to the plaintiff.
The plaintiff sued the defendant alleging that due to diversion of the traffic his business was
decreased, and he was put in loss, and claimed damages. Is the defendant liable?
76.
Write the meaning of “Salus populi est supreme lex.
99
PRIVATE NUISANCE
77.
What is the meaning of ‘Private Nuisance’?
78.
The plaintiff had erected and started a ginning mill. After some time, the defendant obtained
permission to erect a bricks factory besides the ginning mill. While the defendant was constructing
the kiln, the plaintiff objected alleging that by constructing the bricks factory behind a ginning mill
was meant to invite the danger by means of fire, by which the cotton in ginning mill would be
burnt on any day by the fire of kiln, and moreover, the dust of bricks would spoil the quality of the
cotton. Is the defendant liable?
79.
A private nuisance is a
80.
If the defendant interferes with evil motive, and his interference is
If the defendant interferes with evil motive, and his interference is
wrong.
^ it is actionable.
, it is not
actionable.
81.
82.
99
What is the meaning of “Vigilantibus non dormientibus jura subvenient
Where a nuisance is done by several persons, and the plaintiff sued one of them, and such
defendant can plead that the interference was done by several others. What is the position of
the plaintiff in such circumstances?
•83-
3.G. TORTS RELATING TO MOVABLE PROPERTY / SLANDER /
TRESPASS TO GOODS, DETINUE AND CONVERSION
TRESPASS TO GOODS
83.
What is the meaning of “Slander to Goods”? What are
84.
What is meant by ‘Trespass to goods’?
85.
Give the examples of “Trespass to goods”.
the kinds of “Slander to Goods”?
DETINUE (WRONGFUL DETENTION)
86.
What is the meaning of “Detinue”?
87.
Give few examples of “Detinue”?
88.
What are the laws in England and India dealing with
‘Detinue’?
CONVERSiON OR TROVER OR WRONGFUL CONVERSION
89.
What is the meaning of “Conversion” or “Trover” or “Wrongful Conversion”?
90.
Definition given by Saimond on ‘conversion’.
91.
Definition given by Winfieid on ‘conversion’.
137
Unit - III: Specific Torts
92.
Give few examples of ‘conversion’.
93.
What are the modes of ‘conversion’?
94.
The defendant had a boat, and he used to convey the passengers from one side to another side
of a river. The plaintiff approached him along with two horses, and asked to convey him and his
horses. The defendant refused to convey the plaintiff’s horses, but agreed to convey the plaintiff.
The plaintiff alone crossed/conveyed in the boat to the other side. Later he sued the defendant
conversion of his horses by the defendant. Is the defendant liable?
95.
The defendant was a cotton broker. X-a fraudulent person brought 13 bales of cotton and
handed over to the defendant for sale. In fact, X obtained those 13 bales from the plaintiff
without payment by playing fraud. X did not reveal the real facts to the defendant. Without
knowing the real facts, the defendant sold those 13 bales of cotton and handed over the cash to
X, deducting his usual commission. Later, the plaintiff, the original owner of the 13 bales of
cotton, sued the defendant for ‘conversion’ and claimed damages. Is the defendant liable?
96.
A boy found some jewellery. He took it to a goldsmith to get assessed the value of it. The
goldsmith verified, and with an intention to fraud the boy, told him that it was not gold, he would
give 3 half-pences. The boy refused to take amount and demanded his jewellery back. The
goldsmith refused. Discuss.
What is meant by “Replevin”? What are the laws in England and India relating to “Replevin”? ,
97.
ANSWERS
3.A.
SPECIFIC TORTS - TORTS AFFECTING PERSONS
The Law of Torts born in England and spread entire world. The modern democratic principles,
the concept of individual’s rights, etc., also evolved in England and spread entire world. From
the last century, they have developed up very speedily. Freedom of speech, freedom of property,
freedom of trade, etc., are recognized as the fundamental rights in the democratic countries.
1.
The wrongs committed against such freedoms are recognized under the Law of Torts under a
separate name called as “the Specific Torts”.
The “Specific Torts” are as follows: (1) Trespass to the person : Assault and Battery;
(2) Residuary Trespass to the person : False Imprisonment; (3) Malicious Prosecution/Abuse
of Legal Procedure; (4) Nervous Shock. - Torts affecting Immovable Property: (1) Trespass to
land; (2) Nuisance (3) Public Nuisance and Private Nuisance. Torts relating to movable property.
2.
3-
3.B.
TRESPASS TO PERSON - ASSAULT AND BATTERY
ASSAULT
3.
The unlawful laying of hands on another person, or an attempt or offer to do a corporal hurt to
another, coupled with an apparent present ability and intention to do the act. It is a tort consisting
of an act of the defendant which causes to the plaintiff reasonable fear of the infliction of battery
4.
on him by the defendant. The intention as well as the act makes an ‘assault’.
Arnold C.J. explains: “Any gesture calculated to excite in the party threatened a reasonable
apprehension that the party threatening intends immediately to offer violence, o,r in the language
of the Indian Penal Code, is “about to use criminal force” to the person threatened, constitute,
if coupled with a present ability to carry such intention in execution, an assault in law. ”
5.
6.
A few examples of assault:—(a) Threatening any person with loaded pistol or with a knife; (b)
Showing fist with threatening manner; (c) One person strikes another with intention to cause
injury, but it misses. It is an assault, (d) A holds up his hand against B in a threatening manner,
but says nothing. It is an assault.
The following are not assaults:— (a) A strikes B upon the hand. Or arm, or breast in discourse
while travelling in a bus. It is not an assault, (b) A threatens B with an unloaded pistol, which B
knows that it is an unloaded one. It is not assault, (c) A is travelling in a moving train. B standing
on earth threatens to throw water or stone upon A.
It is not assault, (d) Mere words do not
amount to an assault. However, if the words create reasonable apprehension to the person
threatened, then it amounts to assault.
7.
No. A has not committed any offence. In # “R vs. S. George (9 C& P 483)” case, the Court
held: “Pointing a loaded gun at another is an assault. If the pistol is not loaded, then even it
I
may be an assault, if pointed at such a distance that, if loaded, it may cause injury.” In #
138
The Law of Torts
The test is whether an
“Blake vs. Barnard (1840) 9 C&P 626)” case, the Court held:
apprehension has been created in the mind of the plaintiff that battery is going to be committed
against him, and, if the plaintiff knows that the pistol is unloaded, then there is no assault.”
8.
In# Stephens vs. Myers (1830) 4 AC 172 ER735), the Jury held that the defendant was liable
for assault, and awarded one shilling damages to be paid to the plaintiff.
9.
In Bavisetti Venkata Surya Rao vs. Nandipati Muthayya (AIR 1964AP), the Andhra Pradesh
High Court held that there was no assault, because the goldsmith did nothing, and did not
speak against the plaintiff.
10.
Yes. A has abused B in a threatening manner, it amounts “assault”. Generally every abuse
includes threatening. Hence it is an assault. It also amounts defamation. At the same time, B
has also committed the offence of “Battery” including “assault”.
BATTERY
11.
Battery, (n.) = The actual striking of another person or touching him a rude, angry, revengeful
or insolent manner. Battery is a blow or a menacing touching of a person or his clothes or
anything he is carrying or holding assault and battery.
12.
The following are examples of Battery: (a) Use of a stick, bullet or throwing water on a man; (b)
Spitting ip a man’s face; (c) Making a person to fall down by pulling his chair; (d) Infliction of
heat, light, electricity, gas, odour; (e) Physical injury is always not necessary. Least touching of
another in anger is battery; (f)An unwanted kissing is a battery; etc.
13.
In Pratap Daji vs. B.B. & Co. RIy. (1875) 1 Bomb; 52), the Bombay High Court held that there
was justification in the acts of defendant, and therefore, he was not liable. Use offeree to oust
a trespasser from certain premises is perfectly justified.
14.
In P. Kader vs. K.A. Alagarswami (AIR 1965 Mad. 438), the Madras High Court held that it was
a battery.
15.
In the criminal proceedings, the charges can be altered. For example, the prosecution may
change the charges from “simple hurt” to “grievous hurt”, and from “grievous hurt” to
“murder”, depending upon the injuries and treatment and consequences of the incident. A
civil action lies for an assault or battery, and criminal proceedings may also be taken against
the wrong-doer. The fact that the wrong-doer has been fined by a criminal Court for battery is
no bar to a civil action against him for damages. The previous conviction of the wrong-doer in
a criminal Court is no evidence of assault/battery. The factum of battery must be tried in a civil
Court. Thus the damages paid by Rahim for assault at the first suit, does not bar Buron to
proceed against him under battery, as the injury was serious in nature. (Case-Laws: All
Buksh Doctor vs. Sheikh Samiruddin (1869) 4 Beng. LLR ACJ 31); Bishonath vs. Huro
Govlnd(1866)5WR27).)
16.
Raising the stick to beat a person is an assault. As soon as the defendant beats the plaintiff
with that stick, it becomes battery. Thus there are two steps. In the first step, ‘raising the
stick’ is an essential ingredient of assault. But beating that plaintiff is not assault. It is only
battery. ‘Infliction of force’ is the ingredient of battery. Generally the layman presumes that
as soon as the defendant beats the plaintiff it is an assault. He could not differentiate the stages
between the two - assault and battery. He adds both the above two stages and calls the
completed action as an assault. It is for this reason that it is sometimes pointed out by learned
lawyers that “popular assault begins where legal assault ends”.
17-
3.C.
FALSE IMPRISONMENT
[RESIDUARY TRESPASS TO THE PERSON]
17.
False Imprisonment. = The confinement of a person without just cause or excuse. There
must be a total restraint of the person; and the onus of proving reasonable cause is on the
defendant. It is a total restraint of the liberty of a person, for, however, short a time, without
lawful excuse. False imprisonment is also called as “Erroneous Imprisonment” or “Wrongful
Imprisonment”. It is residuary trespass to the person.
18.
Blackstone defines: “Every confinement of the person is an imprisonment, whether it be in a
common prison, or in a private house, or in the stocks, or even by forcibly detaining one in the
public streets.”
19.
In # Bird vs. Jones (1845 QB 742), the House of Lords held that there was no false imprisonment
as there was no total restraint on the plaintiff’s liberty. The plaintiff was free to go back or to
cross the bridge.
.
Unit - III: Specific Torts
139
20.
In Herd vs. Wearoale (1915 AC 67), the Appellate Court held that on the principle of volenti non
fit injuria, the action could not be maintained.
21.
In Maharani of Nabha vs. State (AIR 1942 Mad. 696), the Madras High Court held that there
was no false imprisonment, because here a person was not restrained or confined; only the
liberty to go in the conveyance in which she wished to go was affected.
22.
23.
24.
In Mee vs. Cruikshank (1902) 86 LT 708), the Court held that it was false imprisonment.
In Bhim Singh vs. State of J.K. (AIR 1986 SC 494), the Supreme Court held that it was false
imprisonment and awarded Rs. 50,000/- as exemplary damages.
In John Lewis & Co. vs. Time (1952) 1 All ER), the defendants were not held liable, as there
was lawful justification in detaining the plaintiff and her daughter.
■25-
3.D. MALICIOUS PROSECUTION / ABUSE OF LEGAL PROCEEDINGS
25.
Abuse of Legal Process, (n.) = Abuse of the legal process is the malicious and improper
use of some regular legal proceedings to obtain an unfair advantage over an opponent.
Nothing short of obvious fraud on the part of a debtor would render him liable to have his petition
for insolvency dismissed on the ground of “Abuse of Process of Court”. The term is generally
used in connection with action for using some process of the Court maliciously to the injury of
another person. (Ramnath Aiyer’s Law Lexicon)
26.
‘Champerty’ (n.) = a bargain between two litigants, to carry on a suit and share in the property.
‘Champerty’ is an agreement whereby one party is to assist another to bring an action for
recovering money or property, and js to share in the proceeds of their action.
‘Maintenance’, (n.) = ‘Maintenance’ is an agreement to give assistance, financial or otherwise,
to another to enable him to bring or defend legal proceedings when one has got no legal interest
27.
of his own.
28.
Sec. 19-B. Definitions of maintainer and champertous agreement.— (a) “Maintainer”
means a person who gives assistance or encouragement to one of the parties to a suit or
proceeding and who has neither an interest in such suit or proceeding nor any other motive
recognized bythe law as justifying his interference. (Section 19-B (a)ofthe Indian ContractAct,
1872)
29.
“Champertous Agreement” means an agreement whereby the nominal plaintiff agrees with
30.
maintainer to share with or give to him a part of whatever is gained as the result of the suit
maintained. (Section 19-B (b) of the Indian ContractAct, 1872)
‘Malicious Prosecution’ (n.) = “Malicious Prosecution” means a prosecution on some
charge of crime which is willful, wanton, or reckless, or against the prosecutor’s sense of duty
and right, or for ends he knows or is bound to know are wrong and against the dictates of public
policy.
31.
\
32.
Yes. Y is entitled to sue X and get the damages for the abuse of the legal proceedings and
causing unnecessary difficulties to Y. This was decided in “Gaya Prasad vs. Bhagat Singh
(ILR (1908) 30 All. 525 PC)” Case .
In Satyakam vs. Dallu (AIR 1983 Raj. 193), the Rajasthan High Court opined that there was
sufficient reasonable and probable cause in the prosecution by Dallu-the defendant before the
Bar Council. It also opined that keeping in mind the high traditions of the legal profession, the
plaintiff should not have taken up the case against his old client. Under the circumstances, it
was held that there was no want of bona fides and also no malice on the part of the defendant,
and he was not guilty of malicious prosecution.
33.
In # Abrath v. North Eastern Railway Co. (1886 A.C. 247), the House of Lords held that the
defendants-railway company had taken reasonable care to reveal the true facts, and they
honestly believed that the information obtained was reliable. Therefore, they were held not
liable.
34.
In Abdul Majid vs. Harbansh Chaube (AIR 1974 All 129), the Court held that the defendants
had malice, and were guilty of offence of malicious prosecution, and they were held liable.
35.
Under English law, both these agreements are void. In India, agreement to share the object of
litigation is not opposed to public policy and therefore, not perse void, if it is recovered in
consideration of the other party’s supplying the funds in good faith to carry on a suit. But the
agreement is certainly opposed to public policy and therefore void, if the advances are made by
way of gambling in litigation.
•36-
The Law of Torts
140
NERVOUS SHOCK
3.E.
36.
The expression ‘Nervous Shock’ means a shock to the nerves and brain structure of the
body. An action lies for injury by such shock sustained through the medium of the eyes or ears
37.
without direct physical contact. Injury to health due to nervous shock is a form of bodily harm
for which damages may be claimed.
In Victorian Railway Commissioner vs. Coultas (1888 LR13AC 322), the Judicial Committee
of the Privy Council did not recognise injury caused by a shock sustained through the medium
of eye or ear without direct contract.
38.
Yes. R can sue P for the shock caused to her.
39.
in Dulieu vs. White and Sons (1901) 2 KB 669), the House of Lords held the defendant
liable.
40.
In Ownes vs. Liverpool Corporation (1939) 1 KB 394), the House of Lords held that the
41.
mourners were entitled to recover damages for mental shock in an action brought by them for
negligence against the defendants, although there was no apprehension, or actual sight, or
injury to a human being.
In Janvier vs. Sweeney (1919) 2 KB 316), the House of Lords awarded the damages to the
plaintiff opining that the defendants exceeded their powers.
42.
43.
44.
In # Hambrook vs. Stokes Bros. (1925) 1 KB 141), the House of Lords awarded damages to
the dependents of the woman admitting the evidence that she died due to nervous shock.
In # King vs. Phillips (1953) 1 QB 429), the Court held that the mother was wholly outside the
area of reasonable apprehension and the defendants were not held liable.
In # Bourhill vs. Young (1943 AC 92), the Appellate Court held that the representatives did
not owe any duty of care to her and as such they were not made liable.
45-
TORTS AFFECTING IMMOVABLE PROPERTY
3.F.
1 3.F.(i).
TRESPASS TO LAND
45.
MEANING: “Trespass” in its largest and most extensive sense, signifies any transgression
or offence against the law of nature, or of society, or of the country in which we live; whether it
relates to a man’s person or his property. Beating another is a trespass; for which an action of
trespass in assault and battery will lie. Taking or detaining a man’s goods is also trespass, for
which an action of trespass on the case in trover and conversion,-is given by the law. A forcible
entry on the land of another with strong hand and against the will of the owner is also another
kind of trespass, which is called “Trespass to Land” or “Trespass to Property”.
46.
Section 441 of the Indian Penal Code, 1860 defines “Criminal Trespass”: “Whoeverenters
into or upon property in the possession of another with intent to commit an offence or to intimidate,
47.
48.
49.
insult or annoy any person in possession of such property, or having lawfully entered into or
upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy
any such person, or with intent to commit an offence, is said to commit ‘criminal trespass’."
‘Constructive Trespass’ means ‘trespass in contemplation of law’. By “constructive
trespass” is generally meant trespass, as distinguished from actual trespass.
A has the land. The Revenue Authorities want to acquire As land under the Land Acquisition
Act. Until the final proceedings are settled, they are not entitled to enter into the land of A,
without As permission. If they acquire the property before proceedings are finalised, they are
trespassers. (Latino Andre vs. Union Govt. (AIR 1968 Goa 132)
Yes. After the completion of the First Show, he should vacate the theatre. If he remains there,
and intends to see the Second Show, he becomes trespasser.
50.
Examples of ‘Constructive Trespass’: (a) driving a nail into another’s wall; (b) shooting over
another’s land; (c) throwing stones on another’s land or premises; (d) sending gases or invisible
fumes upon other’s land; (e) pasting or placing anything against another’s walls, etc. are the
constructive trespasses.
51.
Trespass is actionable perse, i.e., it is actionable without proving any injury or damage to the
plaintiff. Here the right of the owner of the land is interfered. If any damages are occurred, they
can also be claimed by the plaintiff.
Unit - III: Specific Torts
141
52.
B is entitled to enter into drawing room and dining hall, but not into bed room, or kitchen or any
other private parts of the building, without the permission of A. If B enters into bed room without
the permission of A, B becomes a trespasser.
53.
If a man’s cattle trespassed into the land of another, and destroyed the crop, the law deems that
the owner of the cattle himself did the trespass, and holds him liable. The Cattle Trespass
Act, 1871 (1 of 1871) of India explains the law relating to the cattle trespass.
54.
The act of taking, the thing or animal taken, and the remedy generally, having been called
“Distress”. Where the cattle of A enters into the field of B and causes damage to the crop, B
can detain As cattle until the darnages are paid to him. It is called “Distress Damage Feasant”.
It is a customary rule in the rural areas of India even to-day. It is one of the most ancient and
effectual and extra-judicial remedies for the recovery of damages. It is the taking, without legal
process, cattle or goods as a pledge to compel the satisfaction of a demand, the performance
of a duty or the redress of an injury.
55.
“Mesne Profits” means intermediate profits. The profits or other pecuniary benefits which
one who dispossesses the true owner receives between disseiz in and the restoration of
possession: those which are received intermediate the original entry and the restoration of the
possession of the premises.
56.
The owner of the land or building shall enjoy the aerial space above the surface ad infinitum.
The neighbour has no right to encroach such aerial space by constructions or projections, sign
boards, etc. However, the State can restrict the construction of a building to certain limited
floors by a statute.
57.
Where the branches of a tree of A have occupied the roof of B, and causing the rain water
pouring into B’s house, B can cut those branches. It is called “Abatement of Nuisance”.
Here B is not a trespasser. He protects his interest. However, in doing so, he must act peacefully,
without danger to life or limb of A. B shall have to give prior notice to A, before he cut the
branches.
58.
“Easement” is a privilege that one neighbour has of another, by written, grant, or prescription
without profit. Right of path, right of water, right of support, right of air, right of light, etc. are the
easements. If the defendant is enjoying the property of the plaintiff by way of easement, he can
plead it as a defence. Burden of proof lies upon the defendant.
59.
‘Prescription’ is a title acquired by use and time, and allowed by law. It is a manner of acquiring
the ownership of property. Along, peaceful and continuous enjoyment over the property gives
a right of prescription to the defendant. He can plead it as a good defence. Burden of proof lies
upon the defendant.
60.
Prescription’ is a Latin word, and it means “Atrespass from the very beginning”. A person
may legally enter upon another’s land either by consent or by authority of law. In the former
case, when a person enters upon the another’s land by consent and abuses or goes beyond
the permission given to him, he is called “trespasser ab initio”, i.e., he is a trespasser from
the very beginning of his entry, even though he lawfully entered into the land with leave or
licence. Law presumes that he had gone there with a wrongful purpose in mind from the very
beginning.
61.
In # Six Carpenters’ case (1610) 1 Sm LC134), the Court held that mere non-payment would
not amount trespass ab initio.
62.
In Elias vs. Pasimore (1934) 2 KB 164), the House of Lords held that they were trespassers
with regard to the documents, and not trespassers ab initio to the house.
63.
In Wood vs. Leadbitter (1845) 12 M & W 838), the Court held that the defendants had a right
to vacate, and they were not held liable. However, this decision was criticised by jurisprudents.
It was corrected in Hurst vs. Picture Theaters Ltd. (1915) 1 KB 1).
In Hurst vs. Picture Theaters Ltd. (1915) 1 KB 1), the House of Lords gave the judgment in
favour of the plaintiff, considering him as a grantee, who purchased a ticket for the show, and
64.
thus had become a valid licensee. The defendants had no right to revoke his licence for that
particular show. They ordered the defendants to pay compensation to the plaintiff.
•65
❖
Allot at least two to three hours per day to study the subjects of LL.B.
❖
Do practise writing every day. It enhances the writing speed in the examination hall.
❖
Do read and practise English Grammar every day. It
❖
Do practise communication skills every day. It enhances
enhances the confidence.
the confidence.
142
The Law of Torts
3.F.(ii).
NUISANCE - PUBLIC NUISANCE AND PRIVATE NUISTANCE
NUISANCE
65.
MEANING: Nuisance, (n.) = The word “nuisance” has been derived from the French word
“nure”, and Latin word “no care”, which mean “to do hurt or to annoy”. The term
“nuisance” literally means annoyance; anything which works hurt, inconvenience, or damage,
or which essentially interferes with the enjoyment of life or property. In Tort, nuisance means
any act, omission, place, or thing which causes or is likely to cause injury, danger or offence to
the sense of sight, smell or hearing or which is, or may be dangerous to life or injurious to health
or property.
66.
Blackstone: “Nuisance as something that worketh hurt, inconvenience or damage.”
67.
Salmond: “Nuisance is incapabie of exact definition but for the purposes of the iaw of tort, it
may be described as unlawfui interference with a person’s use or enjoyment of land or some
right ove,r or in connection with it... the wrong of nuisance consists in causing or allowing without
lawfuljustification (but so as to common to a trespass) the escape of any deleterious thing from
his land or from elsewhere Into land In possession of the plaintiff, e.g., water, smoke, smell,
fumes, gas, noise, heat, vibration, electricity, disease, germs, animals, negligence. ”
68.
Winfield: “Nuisance is incapable of exact definition but for the purposes of the law of tort, it
maybe described as unlawful interference with a person’s use or enjoyment of land or of some
right over, or in connection with it.”
69.
Pollock: “Nuisance is the wrong done to a man by unlawfully disturbing him in the enjoyment
of his property, or, in smoke cases, in the exercise of common right.”
PUBLIC NUISANCE
70.
MEANING: Public nuisances, which injuriously affect the welfare of the community, and are
dealt with by or in the name of the State, or by corporate bodies specially authorised by Statute
to intervene.
71.
Section 268 of the Indian Penai Code, 1860 defines: “A person is guilty of public nuisance
who does any act, oris guilty of an illegal omission, which causes any common injury, danger
or annoyance to the public or the people in general who dwell or occupy property in the vicinity
or which must necessarily cause injury, obstruction, danger or annoyance to persons who may
have occasion to use any public right. ”
72.
In Dr. Ram Raj Singh vs. Babulat (AIR 1982 All. 285), the Allahabad High Court ordered the
defendant to pay the damages to the plaintiff, and also to shift the machine to a faraway place
from the residential houses.
73.
EXAMPLES OF PUBLIC NUISANCE: (a) Digging a trench on the public path; (b) accumulating
the stones, sand in the streets; (c) constructing structures on a public path; (d) polluting the
public drainage system; (e) pouring polluted gases, liquids in tanks, canals or underground;
etc.
74.
In Campbell vs. Paddington Corporation (1911) 1 K.B. 869), the House of Lords held that
the plaintiff was entitled to claim compensation.
75.
In # Benjamin vs. Storr (1874 LR 9 CP 400), the House of Lords held that the plaintiff’s
profits seemed to be too remote a damage to give him a right of private action. They also
opined that to avoid the public nuisance, the State had authority to change the traffic according
to their plans. In this, they did not cause any nuisance or harm to the plaintiff. The plaintiffs
claim was totally rejected.
76.
“Regard for the public welfare is the highest law.”
PRIVATE NUISANCE
77.
Private nuisances are those which specially affect individual persons or their property and for
the suppression of which the individuals aggrieved are entitled to invoke the assistance of the
Courts.
78.
In Radhey Shyam vs. Gur Prasad (AIR 1978 All. 86), the Allahabad High Court admitted the
argument of the plaintiff and granted injunction against the defendant.
79.
A private nuisance is a continuing wrong.
80.
If the defendant interferes with evil motive, and his interference \s unreasonable, it is actionable.
If the defendant interferes with evil motive, and his interference is reasonable, it is not actionable.
81.
“The equity comes to the aid of the vigilant and not the slumbering.
Unit - III: Specific Torts
82.
143
However it is also a weak defence. Example: There is an apartment. Besides to it, the plaintiff
has a house and vacant place. The occupants of the apartment have begun to throw the waste
things from windows and balconies on the house and vacant place of the plaintiff. He is entitled
to the damages from one or all the residents of the apartment.
■83-
3.G. TORTS RELATING TO MOVABLE PROPERTY / SLANDER /
TRESPASS TO GOODS, DETINUE AND CONVERSION
TRESPASS TO GOODS
83.
There are certain torts, which may be committed against the movable properties, such as
vehicles, animals, chattels, etc. The wrong-doer invades on the rights of the real owner and
makes him loss and dispossesses him. It is also called as the “Slander to Goods”. These
torts to immovable property are: (i) Trespass to Goods; (ii) Detinue; and (iii) Conversion.
84.
“Trespass to goods” means unlawfuliy disturbing the possession of the goods by seizure or
removal or by a direct act causing damage to the goods.
85.
Examples of “Trespass to goods”: (a) Writing the names, or spoiling the seats of Bus or of
train; (b) throwing stones on a vehicle; (c) removing a spare part from a vehicle; (d) beating
animals; (e) infecting the animals with diseases; (f) killing animals by giving them poisonous
food; (g) shooting the birds, etc.
DETINUE (WRONGFUL DETENTION)
86.
“Detinue” means “wrongful detention of goods or chattels”. The wrong-doer detains the
plaintiffs goods and even after the demand refuses to hand over them to the plaintiff. Detinue
is a writ or proceeding which is instituted against a person who having goods or chattels
delivered to keep, refuses to re-deliver them to the owner.
87.
Examples of “Detinue”: (a) A-bailor handed over his goods to B-bailee for certain purpose.
After completing the purpose, A claims his goods. B refuses to return the goods. It is a detinue,
(b) X goes to a theatre. He keeps his scooter in stand. After the show, the stand keeper
refuses to give the scooter to X. It is detinue.
88.
The law on “Detinue” was abolished in England by Torts (interference with Goods) Act,
1977, and the principles of it have been included in the Law of Conversion. In India, there is no
special law for “Detinue”, but the provisions of the Specific Relief Act, 1963 and the Code
of Civil Procedure Code, 1908 deal with it.
CONVERSION OR TROVER OR WRONGFUL CONVERSION
89.
“Conversion” is also called as “Trover” or “Wrongful Conversion”. Conversion means
where a person finding or having the goods of another in his possession, converts them to his
own use, without the consent of the owner, and for which the property owner may maintain an
action of Trover and Conversion against him. Conversion is the wrongful taking or using or
destroying of the goods, or an exercise of dominion over them inconsistent with the title of the
owner.
90.
Salmond: “A conversion is an act of wiilful interference, without lawfuijustification, with any
chattel in a manner inconsistent with the right of another whereby that other is deprived of the
use and possession of it. ”
91.
Winfield: ‘Any act in relation to goods of a person which constitute an unjustifiable denial of his
title to them.”
92.
Examples of ‘conversion’: (a) Atakes B’s book with an intention to steal it. It is a conversion,
(b) A gives some jewellery to B for safe custody. B sells them. It is a conversion, (c) A gives
cloth to B-tailor, who sells it to C. It is a conversion. (d)Ahas given his coat to B-Laundry man
for ironing. B gives to C on rent. It is a conversion.
93.
Modes of Conversion: An act of conversion may be committed by any of the following methods;
(1) When the property is wrongfully taken; (2) Conversion by parting with goods; (3) Conversion
by sale; (4) Conversion when the property is wrongfully detained; etc.
94.
In # Fouldes vs. Willoughby (1841, M&W 540), the Court held that the defendant had not
committed conversion, and that he had right to allow or not to allow the horses.
95.
In # Hollins vs. Fowler (1875, L.R. 7 H.L. 757), the House of Lords gave the judgment in
favour of the plaintiff treating the saie by the defendant as a conversion and awarded damages
to the plaintiff.
144
The Law of Torts
96.
In Armory vs. Delamire (1721)1 Str. 505), the Court held that the goldsmith committed conversion
and the boy was entitled to take it back.
97.
This is an ancient remedy found in the English Law. Example: A takes away the goods of B
unlawfully. B sues Afor his goods. The question of ownership shall have to be decided by the
Court. It takes time. In that occasion, B submits a petition to the Court that he would submit
the security, value of the goods to the Court, and requests the Court to hand over the goods to
him. The Court may grant it. If after the enquiry, it is decided that the goods belong to A, then B
forgoes the security, and if it is decided that the goods belong to B, the security is given back to
B, besides imposing penalty or damage, or both against A. This is called “Replevin”. In India,
the Civil Procedure Code, 1908 and the Specific Reiief Act, 1963 contain the similar
provisions, and under those provisions, the Courts have discretionary power to grant the
“Replevin”.
GADE VEERA REDDY, b.sc., ll.b., ivi.a.
S.M.H. QADRI, B. Sc., M.B.A., M.A., LL.M., P.&P.M.I.R.
& L.W.
DICTIONARY OF LAW
(English - English - Urdu)
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information on ail important areas of the Indian Law & other Laws. The Provisions of the Acts
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Pages 698
countries.
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Pages 400.
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DICTIONARY OF LAW
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This is a unique Legal Dictionary. It contains meanings for 16,000 words (approximately)
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etc. are explained in English and Telugu. It contains updated information on all important areas
of Indian Law. Provisions of Acts have also been referred to wherever possible. The aim being
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Pages 602.
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will be useful forthe subject “Legal Language and Legal writing, and also for general purpose.
Pages 432.
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UNIT-IV
DEFAMATION, NEGLIGENCE, ETC.
In this Unit, you study,—
4A
Defamation.
4.A.
(i)
4.A.
(ii) Defamation.
4.A
(iii) Innuendo.
4.A
(iv) Defences against the Suits of Defamation.
Libel and Slander.
4.B. Negligence.
4.B. (i)
Definition and Essentiais of “Negiigence”.
4.B. (ii) Res Ipsa Loquitur.
4.B. (iii) Contributory Negligence.
4.C.
TORTS AGAINST BUSINESS RELATIONS / ECONOMIC TORTS.
4.D. Injurious Falsehood / Malicious Falsehood.
4.E.
Negligent Misstatement.
4.F.
Passing off.
4.Gl
Conspiracy.
4.H. Torts Affecting Family Relations.
4.A.
4.A.(i).
DEFAMATION
LIBEL AND SLANDER
Q.l.
Discuss the law relating to libel and slander (English Law and Indian Law).
Q.2.
Distinguish “Slander” from “Libel”.
Q.3.
DISTINCTION BETWEEN LIBEL AND SLANDER.
Q.4.
Slander.
(SN) (Jan., 2005, A.U.)
Q.5.
Libel.
(SN) (Jan., 2005, A.U.)
Q.6.
Difference between the Engiish and indian Law reiating to iibei and siander.
(SN)
Q.7.
# Youssoupoff vs. Metro Godwyn Mayer Pictures Ltd. (1934) 50 TLR 581 (CA).
(SN)
Give examples.
Is slander actionable per se?
(Sept., 2014, O.U.)
(Feb., 2005, O.U.)
(Jan., 2007, Burd. U., W.B.)(May, 2012, K.U.) (Oct., 2012, O.U.)
ANSWER;
LIBEL AND SLANDER
(EQ/SN)
MEANING:
LIBEL, (n.) = A libel is a false and defamatory statement made or conveyed by written or printed
words without lawful justification or excuse. Any publication which exposes an individual to hatred,
contempt or ridicule, being published without lawful excuse, is a libel. EXAMPLES: A false and
defamatory statement made in writing or printing, picturising, making statute orwaxwork, effigy, filming.
etc.
SLANDER, (n.) = Slander is a false and defamatory statement made by spoken words or gestures
to a person other than the person defamed, causing Injury to the person defamed. EXAMPLES:
spoken words and gestures.
146
The Law of Torts
DISTINCTION BETWEEN LIBEL AND SLANDER
LIBEL
(EQ/SN)
SLANDER
1.
A libel is defamation in some permanent form,
e.g., a written or printed form.
1.
2.
At Common Law, a libel is a criminal offence
2.
as vyell as civil wrong. Under Indian law, both
the libel and slander are criminal offences,
A slander is defamation in transient form, e.g.
spoken words and gestures.
At Common law, a slander is a civil wrong
only.
under Section 500 of the Indian Penal Code.
3.
A libel is itself an infringement of a right and
no actual damage need not be proved in order
3.
At common law, a slander is actionable only
when special damage can be proved to have
been its natural consequences, or when it
conveys certain imputations.
4.
A slander does not conduce to breach of the
5.
peace. This distinction is recognised in the
English law only.
Slander is spoken defamation addressed to the
to sustain an action.
4.
5.
A libel conduces to a breach of peace.
Libel is written defamation addressed to the
eye.
6.
Libel shows a greater deliberation and raises a
ear.
6.
suggestion of malice.
7.
In certain occasions, the actual publisher of a
libel may be an innocent person and therefore,
7.
not libel.
8.
Limitation: In England, under the Statute of
8.
Limitation an action of libel is barred after six
Slander may be uttered in the heat of the
moment and under a sudden provocation.
In every case of slander, the wrong-doer acts
consciously and voluntarily, and must
necessarily be guilty.
In India, the limitation period for the libel and
slander is one year.
years, but that of slander after two years.
Difference between the English and Indian Law: The word “slander” is the general and original
one for all kinds of defamation, and in the early period in the history of the common law, the term
applied both to oral and written defamations of character. Gradually, the common law differentiated
the terms “slander” and “libel” for different uses, and for the historical reasons. For them, libel is
more severe and hard term, applied for criminai offences and slander is less severe and soft term,
applied for civil wrongs. However, the framers of Indian Penal Code did not feel any difference
between them, and they felt that both the terms shall have to be used for “defamation”, and accordingly,
they did not use these terms separately in the provisions relating to defamation in I.P.C.
The English Jurisprudents, such as Blackstone, Bishop, etc., took the term “libel” in wider and most
extensive sense, signifying any writings, pictures, or the like, of an immoral or illegal tendency, and
considered particularly as offences against the public peace, the acts of libel are malicious defamations
of any person, made public by either printing, writing, signs, or pictures, in order to provoke him to
wrath, or expose him to public hatred, contempt, or ridicule.
# Youssoupoff vs. Metro Godwyn Mayer Pictures Ltd. (1934) 50 TLR 581 (CA)
Brief Facts: Libel indicates something written or printed and also includes any matter recorded
permanently. Libel can be made by painting, statue, photograph, cartoon, caricature, etc. Slander is
defamation communicated by spoken words or other sounds addressed to ear or by gestures. The
defamatory gestures made by the deaf and dumb mimicry include slander. It is transient. To which
they include, the sound recorded in cassettes, gramophone records, CD, VCD, etc.? Are they slander
or libel? According to Winfield, they are Potential Slanders. Majority justices felt that they are libels.
The decision above case is a leading case stating that any defamatory matter recorded or filmed shall
be treated as libel and not slander.
In this case, the plaintiff-Natasha was a Russian princess. The defendants, film producers and
distributors, produced a film “Rasputin, the Mad Monk”. In the said picture, it was screened that the
princess had been seduced by Rasputin, a villain character. The plaintiff sued the defendants alleging
that her character was badly screened and she suffered defamation.
JUDGMENT: The Court held that it was a clear libel, and the held the defendants liable. It held that in
a cinema, not only the photographic part but also the speech should be considered as a libel.
Principle: Slesser L.J. observed: “There can be no doubt that, so far as the photographic part of the
exhibition is concerned, that is a permanent matter to be seen by the eye, and is the proper subject of
an action for iibei, if defamatory. I regard the speech which is synchronised with the photographic
reproduction and forms part of one complex, common exhibition as an ancillary circumstance, part of
the surroundings explaining that which is to be seen.
”
Liability for the libel does not depend on the intention of thedefamerbut dn the fact of defamation. The
direct tendency of these Libels is the breach of the public peace, by stirring up the objects of them to
147
Unit - IV : Defamation, Negligence, Etc.
revenue and perhaps to bloodshed. Bishop opined that libel is any representation in writing calculated
to create disturbances of the peace, to corrupt public morals, or to lead to any act which, when done,
is indictable. The gist of the offence of libel is the publication of something which tends in contemplation
of law to affect injuriously the peace and good order of society because if injuriously affects the reputation,
memory, or business of individuals.
According to the English law, libel is a crime, but slander is a civil wrong. The common law made
a fundamental difference between libel and slander. This difference has been developed there due to
historical reasons. However, in India, there is no such distinction. In India, both libel and slander
are
criminal offences as defined in Section 499 of the Indian Penal Code.
.
Again, in the English law, libel is actionable perse i.e. without proof of special damage to the injured,
and in case of slander, with certain exceptions, proof of special damage is essential. In India, both libel
and slander are actionable perse, i.e. without proof of special damages to the injured.
Harrington J. explained the reasons behind the difference between English and Indian law as follows:
“Where it is proposed to depart from the ruies of Engiish law, which have been introduced into this
country, it must be shown that those rules, if adhered to in this country, will work an injustice or a
hardship. Here no injustice is worked by an adherence to those rules, because in cases where the
person aggrieved is unable to prove that he has suffered actual damage, he can call in the criminal law
to punish the wrongdoer Piima facie there is nothing repugnant to justice, equity and good conscience
in calling a person, who is claiming pecuniary compensation for damages caused by a wrongful act, to
prove that some damage has been caused to him by the act of which he complains.”
DEFAMATION
4.A.(ii).
Q.1.
"Defamation is injury to the reputation of a person."
Q.2.
What are the essential elements of tort of defamation?
Q.3.
What conditions are required to constitute an action
(May, 2009, O.U.) (June, 2010, O.U.) (Jan., 2010, B.U.)
(Jan., 2007, Burd. U.)
for defamation?
(Feb., 2006, S.V.U.) (May, 2003, Burd. U.)
Q.4.
Write an essay on defamation.
Q.5.
Define “Defamation”, and explain the essentials of
Q.6.
What are the defences of tort of defamation.
Q.7.
What are the essential features of “Defamation”?
News Paper Ltd.
Q.8.
(June, 2011, O.U.) (May, 2012, K.U.)
— Comment.
Defamation.
(Aug., 2006, O.U.) (Sept., 2005, O.U.) (Apr., 2002, O.U.)
Write your answer.
(AnI., 2005, S.U.)
Explain. Write about the principles laid down in Cassidy vs. Daily Mirror
(Jan., 2003, G.U.)
“The liability for libel does not depend on the intention of the defamer but on the facts of defamation." — Discuss referring to
(June, 2001, M.U.)
cases.
Q.9.
(SN)
Essentials of Defamation.
Q.10. Defamatory.
(SN)
Q.11.
(SN)
# Capital & Counties Bank vs. Henty (1882 7 App Cas 741).
■ (SN)
Q.12. # Hulton & Co. vs. Jones (1910 AC 20).
Q.13. Newstead vs. London Express Newspapers Ltd. (1939) 4 All ER 319).
(SN)
Q.14. DISTINCTION BETWEEN DEFAMATION AND INSULT.
(SN)
ANSWER:
DEFAMATION
(EQ/SN)
MEANING:
Defamation, (n.)
The taking from another’s reputation; a false publication calculated to bring
one in disrepute,
Defamatory, (adj.) =
containing defamation tending to defame; calumnious; slanderous; libellous;
injurious to reputation.
DEFINITION:
Tomlins Law Dictionary: “Defamation is when a person speaks scandalous words of others, whereby
they are injured in their reputation. ”
Winfield: “Defamation is the publication of a statement which tends to lower a person in the estimation
of right thinking members of society, generally, or which tends to make them shun and avoid that
person.”
The Indian Penal Code, 1860 (Section 499): “Whoever by words either spoken or intended to be
read, or by visible representations, .makes or publishes any imputation concerning any person intending
to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such
person, is said, except in the cases excepted, to defame that person. ” [Also refer to Topic “Defamation
99
in The Indian Penal Code, I860.]
148
The Law of Torts
Kinds: Defamation is of two kinds - (i) Libel; and (ii) Slander. (These are explained in Topic “Libel &
Slander”.)
ESSENTIALS OF DEFAMATION: A defamatory statement must contain the following essentials:—
(1) The statement or representation must be defamatory.
(2) The defamatory statement or representation must refer to the plaintiff.
(3) Such statement or representation must be published.
(1) DEFAMATORY: Words which injure the reputation of any one, which make people think worse of
him, are defamatory. Yet no general rule can be laid down defining absolutely and once for all what
words are defamatory, and what are not. Words which would seriously injure A’s reputation, might do
not harm B. Each case must be decided mainly on its own facts, and in each case the test is: Have
the defendant’s words appreciably injured the plaintiff’s reputation?
The words must be defamatory, i.e. the words must tend to lower the plaintiff’s reputation in the estimation
of right minded persons, or must tend to cause him to be shunned or avoided. So any words will be
deemed to be defamatory which (a) expose the plaintiff to hatred, contempt, ridicule, oblique; or (b)
tend to injure him in his profession ortrade; or (c) cause him to be shunned oravoided by his neighbours.
The defamatory statement may be malicious or negligent. Some
‘Innuendo’ are also defamatory. [Also refer to Topic “Innuendo”.]
indirect statements known
as
PROBLEM-1: In a speech at a public meeting. A, a Member of the Lok Sabha, makes a defamatory
remark about B, who is also a Member of the Lok Sabha. Can B sue A?
(July, 2002, S.V.U.)
PROBLEM-2: A, a Member of a State Legislature, called a citizen as a smuggler in a speech on the
floor of Legislative Assembly. Discuss the rights of the citizen against A.
(June, 2003, M.U.)
SOLUTION-(1&2): Yes. BcansueA, and A is liable for the defamation. This principle is iaid down in
the following case:—
# Capital & Counties Bank vs. Henty (1882 7 App Cas 741)
(Defamation)
Brief Facts: In an election meeting, the plaintiff cailed the defendant “a rowdy and a suspect’’, and the
defendant also called plaintiff as “drunkard”. There was a personal and political rivalry between the
plaintiff and defendant before the elections. Afterthe elections were completed, the defendant repeated
the words saying that the plaintiff was a drunkard. The plaintiff sued the defendant for defamation.
JUDGMENT: The trial Court dismissed the petition of the plaintiff. The Court of Appeal reversed the
decision of the trial Court. The Court of Appeal held that the defendant was not liable for the use of the
word “drunkard” at the election meeting, as it was said by him to the plaintiffs words “a rowdy and a
suspect”. However, the defendant was held liable for the word “Drunkard” used second time by the
defendant, without any provocation or any words from the side of the plaintiff.
Principles: (1) The Court of Appeal opined that in a jury trial, it is for the Judge to rule whether the
words are capable of bearing each of the meanings contended for by the plaintiff and to direct the jury
clearly if the words are incapable of bearing any meaning alleged by the plaintiff.
(2) The words, such as “drunkard” w]\\ be deemed defamatory which expose the plaintiff to hatred,
contempt, ridicule, or obloquy.
(2) The Statement or representation must refer to the piaintiff: The second essential element of
the defamation is that the plaintiff must prove that the defamatory statement or representation was
described on his name, or even by a fictitious name. He must satisfy the Court that the words referred
to him. Intention or motive of the defendant is immaterial. It is also not necessary that the entire worid
must know that it refers to the plaintiff. It is sufficient if the person who knows the plaintiff, understands
that it refers to the plaintiff.
PROBLEM: A wrote letters to the husband of B in which he alleged that B was a witch and had by her
sorcery caused death or relation of A. Has A committed any offence?
(May, 2005, B.U.)
SOLUTION: Yes. A has committed defamation, and is liable to pay damages to B.
Problem-1: The defendants published in a newspaper a printed graph of one Mr. AB and Miss X
together with the words Mr. AB, the race-horse owner and Miss X whose engagement has been
announced. The wife of Mr. AB sued the defendants for defamation. Will she succeed?
(Jan.,2007, Burd. U.)
PROBLEM-2: A publishes a news item in his paper that Mr. X married Ms. Y. But X was already
married. X’s wife sued A for defamation. Explain the case and state whether A is liable for defamation.
(Aug., 2002, A.U.)
149
Unit - IV : Defamation, Negligence, Etc.
SOLUTION-1 &2: A is liable to pay damages. The facts of the problem are identical with Hulton &
Co. vs. Jones”, which is explained hereunder:—
# Hulton & Co. vs. Jones (1910 AC 20)
(Defamation)
I
I
Brief Facts: Artemus Jones-the plaintiff was a barrister. He was baptised as “Thomas Jones”, and
later he took additional name “Artemus Jones”, and became popular in his city on this name. Hulton
& Co., the defendants were publishers of a newspaper “Sunday Chronicle”. The defendants
published a fictitious article written by their Paris Correspondent. In that article, the writer described
that Artemus Jones, a church warden, at Peckham visited a motorfestival at Dieppe with his girl friend
who was not his wife. The writer described: “Upon the terrace marches the world, attached by the
motor races-a world immensely pleased with itself, and minded to draw a wealth of inspiration and,
incidentally, of golden cocktails - from any scheme to speed the passing hour... WhilstI There is
Artemus Jones with a woman who is not his wife, who must be, you know the other thing! Wispers a
fair neighbour of mine excitedly said into her bosom friend’s ear. Really, is it not surprising how certain
of our fellow countrymen behave when they come abroad? Who would suppose, by his goings on, that
he was a Church warden atPekham? No one, indeed, would assume that Jones in the atmosphere of
London would take on so austere a job as the duties of a Church warden. Here, in the atmosphere of
Dieppe, on the French side of the Channel, he is the life and soul of gay little band that haunts the
Casino and turns night into day, besides betraying a most unholy delight in the society of female
butterflies.”
The plaintiff sued the defendants for this defamatory statement alleging that this statement published
in the defendants’ newspaper gave the meaning that he was a womanizer and characterless person.
The defendants contended that they never knew the plaintiff and his whereabouts, and also did not
intend to cause any injury to his reputation, and their statement was purely a fictitious story. They also
contended that the plaintiff was a barrister, but not a churchwarden, and he did not live at Peckham
and had not been to the Dieppe festival. The plaintiff also admitted the averments of the defendants.
However, the witnesses of the plaintiff deposed that they took the article to refer the plaintiff only.
JUDGMENT: The Lower Court gave the judgment in plaintiff’s favour, awarding compensation. The
defendants appealed to the Court of Appeal and House of Lords. There also, the defendants’ appeals
were dismissed and compensation to the plaintiff was confirmed.
PRINCIPLES: (1) In a defamatory action, it is sufficient for plaintiff that the defamatory statement or
representation referred to him. It is not even necessary that the plaintiff should not have been named
at all nor is it necessary that the statement in question should contain a key or pointer indicating that it
refers to him.
(2) Channel J. of Lower Court observed: “The real point upon which your verdict must turn is, ought
or ought not sensible and reasonable people reading this article to think that it was a mere imaginary
person. If you think any reasonable person would think that, it is not actionable at all. If, on the other
hand, you do not think that, but think that people would suppose it to mean some real person those who
did not know the plaintiff of course would not know who the real person was, but those who did know of
the existence of the plaintiff would think that it was the plaintiff— then the action is maintainable.
”
(3) Lord Alverstone, C.J. observed:
If the libel speaks of a person by description without
mentioning the name in order to establish a right of action, the plaintiff must prove to the satisfaction of
ajurythatthe ordinary readers of the paperwho knew him would have understood that it referred to
him.”
(4) Loreburn L.C. of House of Lords observed: “Libel consists in using language which others
knowing the circumstances would reasonably think to be defamatory of the person complaining of and
injured by it. A person charged with libel cannot defend himself by showing that he intended in his own
breast not to defame, or that he intended not to defame the plaintiff, if in fact he did both. He has
nonetheless imputed something disgraceful and has nonetheless injured the plaintiff. A man in good
faith publishes a libel believing it to be true, and it may be found by the jury that he acted in good faith
believing it to be true, and reasonably believing it to be true, but in fact the statement was false. Under
those circumstances he has no defence to the action, however, excellent his intention. If the intention
of the writer be immaterial in considering whether the matter written is defamatory, I do not see why it
need be relevant in considering whether it is defamatory of the plaintiff. ”
Newstead vs. London Express Newspapers Ltd. (1939) 4 All ER 319)
(Defamation)
The defendants published an article stating that “Harold Newstead, a Camberwell man” had been
convicted for bigamy. The story was true of Harold Newstead, a Camberwell barman. The action for
150
The Law of Torts
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.
A partnership firm is not a legal entity. No suit for defamation is maintainable by a firm as it is not a legal
person. However, suit for defamation may be brought by the individual partners.
Defaming a deceased person is not a tort. But under Section 499 of the Indian Penal Code, 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 living family members
or other near relatives.
Defamation of a class of persons: If a defamatory statement or representation refers to a group of
individuals or a class of persons, no member of that group or class can file a defamation suit against
the maker of that statement. For example, a writer writes like this: ‘‘In India, all political leaders are
corrupted. All lawyers are liars. All bureaucrats are lazy fellows. ” An individual member of a political
party, or lawyers, or bureaucrats is not entitled to file a defamatory suit against the above statement.
3. The words must be published: The third essential of defamation is that the defamatory statement
or representation must be published. Here, publication.means making known the matter to some
person otherthan the plaintiff. The following principles governed the rule of publication of a defamatory
statement:
(a) The publication matter must have been known to third person that is to any person other than
defamer and the defamed,
(b) The uttering of a libel by a husband to his wife vice versa is not a publication. Both of them are
taken to be one entity,
(c) The plaintiff must understand the defamatory significance
of the statement.
He must also
understand that it referred to him.
(d) Publication is presumed when the document is so put in the way of being read or understood by
someone, that it is probable that he actually read and understood it.
(e) Publication need not be intentional. It is sufficient that it is due to the negligence of the defendant.
(f)
Every repetition of defamatory words is a new publication, and distinct cause
The defendant is held liable for each of such repetition of defamatory words.
of action arises.
DISTINCTION BETWEEN DEFAMATION AND INSULT (SN)
DEFAMATION
INSULT
1.
Defamation affects one's reputation. The
object of the defamer is to badly affect the
plaintiffs reputation.
1.
The immediate affect of insult is provocation.
2.
Defamation includes insult.
2.
insult may or may not include defamation.
3.
There must be publication of a defamatory
matter to a third party.
3.
There is no offence if the defamatory
statement is communicated only to the person
4.
4.
A true statement of fact does not amount to
5.
defamation.
6.
Sections 499 to 502 of I.P.C. define and
It becomes an offence if the wrong-doer
communicates insulting matter/statement or
behaves only to the person insulted.
defamed.
5.
It need not be published to a third party. The
wrong-does may insult the plaintiff directly in
the presence of third person or with out
presence of any persons. Publication is not the
sine qua non of the offence.
It may be considered as insult depending upon
the circumstances.
explain the criminal nature and punishments
Sections 504 ^nd 509 of I.P.C. define and
explain the criminal nature and punishments
for Defamation.
for Insult.
6.
NOTE
I have been revising the STlTTflTm.
gUllES according to the new Syllabus and new
pattern examination, with latest Acts, Sections, Case-Laws, etc. However, these books are also
useful to the old syllabus and old examination pattern.
GADEVEERA REDDY
Unit - IV : Defamation, Negligence, Etc.
4.A.(iji).
Q.l.
151
INNUENDO
Innuendo.
(SN) (July, 2002, S.V.U.) (Aug., 2012, O.U.) (Sept., 2013, O.U.)
Q.2. # Tolby vs. J.S.Fry & Sons Ltd. (1931 AC 333 HL).
(SN)
Q.3.
Cassidy vs. Daily Mirror Newspapers Ltd. (1929) 2 KB 231).
(SN)
Q.4.
Bruce vs. Odhams Press Ltd. (1936).
(SN)
Q.5.
Morrison vs. Ritihie & Co. (1902) 4 F 654 Scottish Court).
(SN)
Q.6. Pooja Bhatt vs. Stardust Newsmagazine (1997-May).
(SN)
ANSWER:
INNUENDO
(EQ/SN)
MEANING: Innuendo. = an insinuation; an indirect reference; an indirect suggestion.
Innuendo means words which are not defamatory in the ordinary sense may nevertheless convey a
defamatory meaning owing to the particular circumstances in which they are used.
Innuendo denotes the explanatory statement that though the words were not libellous in their ordinary
meaning they had, in fact, a libellous meaning in the circumstances of the case.
INGREDIENTS:
1.
2.
Words used by the defendant seemed to be innocent in their natural, obvious and primary sense.
If they contain secondary or natural meaning damaging the reputation of the plaintiff, then they are
alleged to be defamatory.
Burden of proof lies upon the plaintiff to show and prove that the inner meaning of the defamatory
statement is defamatory and is attributed to him.
3.
4.
An innuendo is an explanatory averment, and becomes as a defamatory statement, when the
words give secondary and latent meaning degrading the conduct and character of the plaintiff.
Mere interpretation is not sufficient to allege an innuendo. It must be supported by extrinsic facts
or matter.
5.
The rule of innuendo is that whenever the words are
not defamatory in their ordinary sense, the
plaintiff must allege in his statement of claim an innuendo and must prove the facts necessary in
satisfying the jury that the meaning alleged in an innuendo was the meaning of the words, and
damage caused to the plaintiff.
6.
The words must contain within themselves some ‘key or pointer’ indicating that those referred
to the plaintiff.
7.
The world at large may or may not understand the secondary and latent meaning of the innuendo.
The cause of action arises, if the plaintiff understands the secondary and latent meaning of the
published matter. The defendant cannot take the defence that the world at large did not understand
the secondary and latent meaning of those words.
Examples:
(a) Afzal Guru was a terrorist and was punished with capital punishment for attacking the Parliament.
Kasab was a terrorist and was punished capital punishment for attacking Taj and Railway station
and killing several people. Afzal Guru and Kasab were known as notorious criminals, and killed
the innocent people brutally. If A writes any article against B saying that B is equal to Ranga and
Billa. It is an innuendo. It gives defamatory meaning on the character of B.
(b) A says to B that C is a Suryakanthamma (an actress, who played wicked, cruel mother-in-law
characters in Telugu Pictures). It is an innuendo.
(c) Gall Janardhan Reddy is indulged in iron scam case and is in jail. A says to B that C is such a
corrupted officer, even not comparable with Gall Janardhan Reddy. It is an innuendo.
Case-laws:
A
# Tolby vs. J.S.Fry & Sons Ltd. (1931 AC 333 HL)
(Innuendo)
Brief Facts: The defendant was a firm of chocolate manufacturers. The plaintiff was an amateur golf
champion. The defendants published a caricature of the plaintiff with a pocket of their chocolate
protruding from his pocket, as an advertisement of their goods. The plaintiff had not consented to the
said advertisement, and also he did not take any remuneration for it. Further, he did not eat the
defendant’s chocolate. He alleged that by the advertisement he had suffered in his credit and reputation.
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The Law of Torts
JUDGMENT: The Court of Appeal held that the innuendo was caused damage to the plaintiff and
therefore, the defendants were held liable.
Principle: Without prior permission, the companies or manufacturers should not use the portraits,
pictures, photos of any famous or ordinary people in their advertisements. It becomes innuendo.
PROBLEM: X, a cartoonist drew caricature resembling a politician and showed that the said politician
was involved in a liquor scam. What wrong, if any, committed by X? What is his liability?
(Dec., 2007,0.U.) (Jan., 2004, N.U.)
SOLUTION: Yes. X is liable for causing innuendo/defamation to the said politician.
B.
Cassidy vs. Daily Mirror Newspapers Ltd. (1929) 2 KB 231)
(Innuendo)
Brief Facts: Mrs. Cassidy was the plaintiff. The defendants were newspaper management. Mrs.
Cassidy resided in a flat. Mr. Cassidy used to visit Mrs. Cassidy rarely. Mr. Cassidy was also known
as Corrigan. He gained notoriety in racing circles and in indiscriminate relations with women. At a
race meeting, he was accompanied with a lady, and both of them posed to a race photographer. He
also told to the photographer that he was going to marry that lady. This news was published by the
Defendants’ newspaper along with the photograph of Mr. Cassidy and that lady and wrote; “Mr. M.
Corrigan, the race-horse owner and Miss X, whose engagement has been announced.’’ Mrs. Cassidy
@ Mrs. Corrigan sued the defendants for the defamation containing innuendo. She alleged that the
published matter gave the meaning that Mr. Cassidy did not live with her and that they were not wife
and husband. The defendants contended that they acted in good faith and without any intention to
defame the plaintiff.
JUDGMENT: The Court held that the defendants were liable and ordered to pay the damages to the
plaintiff.
Principle: The world at large may or may not understand the secondary and latent meaning of the
innuendo. The cause of action arises, if the plaintiff understands the secondary and latent meaning of
the published matter. The defendant cannot take the defence that the world at large did not understand
the secondary and latent meaning of those world.
C.
Bruce vs. Odhams Press Ltd. (1936)
(Innuendo)
The defendants published an article in their newspaper in which they referred to certain aero plane
smuggling exploits of ‘an English woman’. The plaintiff brought a libel action against the defendants
and in her statement of claims she alleged that the words “an English woman”, “she” and “her” in
the article, referring to the woman meant the plaintiff. But the plaintiff was not identified in the article by
name or description as the woman referred to by any witness. The defendants were held not liable.
D.
Morrison vs. Ritihie & Co. (1902) 4 F 654 Scottish Court)
(Innuendo)
The defendants in good faith published a mistaken statement that the plaintiff had given birth to twins.
The plaintiff had been married only two months back. In Morrison vs. Ritihie & Co. (1902)4 F 654
Scottish Court), the Court held that even though the defendants were ignorant of this fact, they were
liable to pay damages.
E.
Pooja Bhatt vs. Stardust Newsmagazine (1997-May)
(innuendo)
One unknown computer-technologist obtained nude photos of some ladies, and computerized those
photographs with the head of Pooja Bhatt in their May, 1997 issue, which caused a sensation in India.
The Feminists agitated against Pooja Bhatt alleging that she voluntarily gave nude poses. The police
detected the original cause. Pooja Bhatt sued the Stardust News Magazine for their publication, for
which the defendants apologized.
❖
Allot at least two to three hours per dav to study the subjects of LL.B.
❖
Do practise writing every day. It enhances the writing speed in the examination hall.
❖
Do read and practise English Grammar every day. It enhances
❖
Do practise communication skills every day. It enhances
the confidence.
the confidence.
153
Unit - IV : Defamation, Negligence, Etc.
4.A.(iv).
DEFENCES AGAINST THE SUITS OF DEFAMATION
(AnI., 2004, P.U.) (Sept., 2014, O.U.)
in an action of defamation.
Q.1.
Describe various defences that may be pleaded
Q.2.
Justification by Truth.
Q.3.
FAIR COMMENT/BOAM FIDE COMMENT vs. ROLLED-UP PLEA.
Q.4.
# Merivale vs. Carson (1887 20 QB 275).
(SN)
Q.5.
Yandamoori Veerendranath and another vs. Muppala Ranganayakamma (1987).
(SN)
Q.6.
Kalanjali, Hyderabad vs. Vartha Chief Editor, Managing Director and others (1999).
(SN)
Q.7.
PRiViLEGE.
(SN)
Q.8.
ABSOLUTE PRiViLEGE.
(SN)
Q.9.
Parliamentary Proceedings.
(SN)
(SN)
(SN) (Nov., 2000, S.K.U.)
(SN)
Q.10. Judicial Proceedings.
(SN) (Aug., 2002, A.U.) (Sept., 2013, O.U.)
Q.11. Qualified Privilege.
Q.12. DISTINCTION BETWEEN ABSOLUTE PRIVILEGE AND QUALIFIED PRIVILEGE.
(EQ/SN)
Q.13. Consent.
(SN)
Q.14. Apology.
(SN)
ANSWER:
DEFENCES AGAINST THE SUITS OF DEFAMATION
(EQ/SN);
INTRODUCTION: A man’s reputation is his property. It is more valuable than any other property.
Reputation is a sort of right to enjoy the good opinion of others, and is as capable of growth, and has as
real an existence, as an arm or leg. It is a personal right. In fact it is a just in rem (a right against
the entire world). Scandal and defamation are injurious to reputation. Therefore reputation is protected
bylaw.
The law also gives freedom of speech to the public in general, which is a basic feature of democracy.
Truth and privilege protect the freedom of speech. There is a clash between the law of defamation and
the law of freedom of speech. The jurisprudents in England strongly opine that the branch of law of
defamation gives too much protection to reputation and imposes too great restrictions on the freedom
of speech. The branch of law of defamation is an individual right, whereas the branch of law of freedom
of speech is a public right. Both these rights clash with each other. It is the duty of the Courts to
protect the, interests of both of them, and to maintain balance of interests between them.
The law gives certain protective measures to the right of freedom of speech. These rights can be
used as defences in the proceedings of defamation.
Defences available: The important defences mentioned hereunder are the defences available for
the defendant in a suit of defamation:
(1) Justification by truth;
(2) Fair and bona fide Comment;
(3) Privilege (Absolute Privilege and Qualified Privilege);
(4) Consent; and
(5) Apology.
1.
JUSTIFICATION BY TRUTH
(SN)
Truth is a complete defence fora defamatory suit in a civil action. If the defendant is enabled to prove
the truthiness in his defamatory statement, the plaintiff is not entitled to get the damages. The basic
principle of this principle is that the law does not give benefit or it does not sanction the damages to a
characterless person. Sometimes, the defendant might have made some defamatory statement
against the plaintiff without knowing the facts true or false. However, after publishing the said statement,
if the statement is found to be tme, the plaintiff is not entitled to recover any damages from the defendant.
If the statement is proved as true, the purpose or motive of the defendant is irrelevant. However, the
burden of proof lies upon the defendant that the statement as a whole and in every material part thereof
are true.
In the. criminal law, the scope of “Justification by truth” is more widened. According to the first
exception of Section 499 of the Indian Penal Code, 1860, if the published defamatory statement
was made for public good, then only the defendant can succeed, and can be exempted from damages.
154
The Law of Torts
2.
FAIR COMMEHTIBONA FIDE COMMENT vs. ROLLED-UP PLEA
(SN)
Fair and bona fide comment is a good example for “Damnum sine injuria”. Afair comment (excusing
what would otherwise be a libel) is a comment which is either true, or which, if false, expresses the
real opinion of its author (as to the existence of a matter of fact, or otherwise), such opinion having
been formed with a reasonable degree of care and on reasonable grounds. Whatever is fair and can
be reasonably said of the works is not actionable unless it appears that, under the pretext of criticising
the works, the defendant takes an opportunity of attacking the character of the author; then it will be a
libel.
Fair and bona fide comment is the base of “Freedom of Speech”, which is guaranteed under Article
19 of the Indian Constitution. The object of this rule is the public interest. A few examples of such
public interests are - (a) books, cinemas, dramas, and such other artistic works, etc.; (b) public
institutions; (c) local authorities; (d) affairs of State; (e) public acts of political leaders; (f) ecclesiastical
matters; etc.
A fair and bona fide comment is based on facts plus mixed with opinions. In a democratic system of
administration, it serves to the highest range. It has strong power. It awakes the minds of the people.
It shows the path to millions of people. It also guides the wrong-doer Napoleon said; “I do not fear
to face miilions of guns. But I fear to face a single pen.”
The defendant can criticise the novel or cinema or, any such artistic works pointing out the defects in
such works. However, he is not entitled to criticise the personal character of the author. The criticism
must be relevant to the “artistic work” only, but should not concentrate the personal affairs of the
author.
ROLLED-UP PLEA
(SN)
In a defamatory suit, the defendant contends that his statements are true in substance and in fact, and
in so far as they consist of expressions of opinion. They are expressed in good faith and without
malice for public interest. Such plea is called “Rolled up plea”.
In a suit of defamation, if the defendant argues that he made the “fair comment” in the interest of
public, but not to defame the plaintiff. The defendant may argue; “.... the words complained of consist
of allegations of facts they are true in substance and in fact; and in so far as they consist of expressions
of opinion they are fair comments made in good faith and without malice upon the said acts which are
matters of public interest.” This is a highly technical plea of the English law of defamation. This is the
general aversion of the defendants.
Hence it is called “Ro!Ied-up Plea”.
However, the Courts do not solely believe the defendant’s Rolled-up Plea, but go to depth, background
and the real intention of the defendant. See the following Example and case-laws;—
Example: A wrote a book-C. B can criticise the book pointing out the defects if any. But he is not
entitled to criticise As personal character. B can say; “C is a bad book, and it is not at all useful to the
public.” But he cannot say; “C is a bad book because it is written by A” or “C is a worthless book, being
written by A. We cannot expect any good material from it, being written by a characterless writer. ” In
a suit of defamation, B may contend that he made the second statement as a fair comment in the
interest of public. This B’s argument becomes “Rolled-up
bona fide intention.
Plea” and cannot stand until he shows his
# Merivale vs. Carson (1887 20 QB 275)
(Defamation - Defence)
Brief Facts: The defendant criticised the work of the plaintiff. A paragraph runs; The Whip Hand’,
the Joint production of Mr. and Mrs. Herman Merivale gives us nothing but a hush-up of ingredients
which have been used ad nauseum until one rises in protest against the loving, confiding, fatuous
husband with the naughty wife and her double existence, the good male genius, the limp aristocrat and
the villainous foreigner.” The plaintiff alleged that the word complained of suggested that the “naughty
wife” was an adulterous wife, when in fact there was no mention of adultery in the play. The defendant
contended that it was a fair comment.
JUDGMENT: The Court did not accept the defendant’s Rolled-up Plea (i.e., his was a fair comment)
and held him liable to pay damages to the plaintiff.
Yandamoori Veerendranath and another vs. Muppala Ranganayakamma (1987)
(Defamation - Defence)
Brief Facts: Yandamoori Veerendranath is a famous Telugu Novel writer.
He wrote “Tulasidalam”
which gained most popular among the readers. It was well received by the public. Muppala
Ranganayakamma, another novelist and critic, criticised the said novel includingthe personallife and
Unit - IV : Defamation, Negligence, Etc.
155
character of Yandamoori and his friend in very cheap language. Her criticism was published in,
newspapers. Yandamoori and his friend filed defamation suit against her and the newspaper. The
defendant took Rolled-up plea.
JUDGMENT: The District Munsif Magistrate gave the judgment in Yandamoori favour. On appeal it
was confirmed by the District Court and also by the High Court of Andhra Pradesh.
Kalanjali, Hyderabad vs. Vartha Chief Editor, Managing Director and others (1999)
(Defamation - Defence)
Brief Facts: Vartha, a daily magazine published a news item against Kalanjali (Ramoji Rao is one of
the Directors) alleging that it smuggled the archives to foreign countries without permission. Kalanjali
filed defamation case and proved that the averments were false. The defendant took the Rolled-up
Plea.
JUDGMENT: The Metropolitan Magistrate gave the judgment against the defendants.
3.
PRIVILEGE
(SN)
MEANING: As used in its broad and commonly accepted sense, “Privilege” means a peculiar
advantage; a personal benefit or favour; a private or personal favour enjoyed. It also means, in
connection with the context, a particular and peculiar benefit or advantage, enjoyed by a person,
company, or class, beyond the common advantage of other citizens; some peculiar right or favour
granted by law contrary to the genera! rule; the enjoyment of some desirable right; special enjoyment
of a good; an exemption from some general burden, obligation.
A privilege is a particular and peculiar benefit or advantage enjoyed by a person, company, or class
beyond the common advantage of other citizens. It also gives the meaning that it is a legal claim to do;
legal power; authority; immunity granted by authority; the investor with special or peculiar rights.
In the law of defamation, privilege is a good defence. The object of this defence is the common
convenience and welfare of society or the general interest of society.
Kinds of Privilege:
There are two kinds of privileges. They are - (i) Absolute Privilege; and
(ii) Qualified Privilege.
(i)
ABSOLUTE PRIVILEGE
(EQ/SN)
Privilege is a special legal right or immunity granted to a person or persons. Absolute privilege is
an immunity from lawsuit, usually a lawsuit for defamation, even if the action is wrong, malicious, or
done with an improper motive. Absolute privilege is most often expressed for legislators. Absolute
privilege should not be confused with qualified privilege, which grants the same immunity from
prosecution for defamation, but only in the absence of malice.
Where a person makes any defamatory or false statement in the course of Parliamentary, judicial,
military, naval or State proceedings, he is exempted from the charges of defamation. This is a peculiar
privilege, and is called absolute privilege. The maker of the statement can make a false and defamatory
statement with or without malice deliberately in the course of Parliamentary, judicial, military, naval or
State proceedings. The maxim “Salus populi est suprema” (Regard for the public welfare is the
highest law) is the object of this Absolute Privilege. The object of this principle is public policy.
Absolute Privileges can be grouped in four- (a) Parliamentary proceedings; (b) Judicial proceedings;
(c) Military and Naval proceedings; and (d) State proceedings.
(a)
Parliamentary Proceedings
(SN)
In every democratic country, the members of the Parliament are given absolute privilege In the course
of the Parliamentary proceedings. They can declare their views, opinions deliberately and even with or
without malice. Article 105 (2) of the Constitution of India says that no Member of Parliament shall be
liable to any proceedings in any Court in respect of anything said by him in Parliament. But this
privilege cannot be extended outside the Parliament. Similar privilege is also granted to Legislative
Members of the States in Article 194 (2) of the Constitution.
PROBLEM: A, a Member of a State Legislature, called a citizen as a smuggler in a speech on the
floor of Legislative Assembly, Discuss the rights of the citizen against A.
(June, 2003, M.U.)
SOLUTION: A is privileged under Article 194 (2) of the Constitution of India. If A, the Member of the
State Legislature, calls the citizen as a “smuggler” outside the floor of Legislative Assembly, then,
definitely A shall be held responsible for the defamation.
(b)
Judicial Proceedings
(SN)
Absolute privilege is also granted to Judges, counsels, witnesses or parties in the judicial proceedings.
This is also based upon the public policy. The documents required to be conducted judicial proceedings
156
The Law of Torts
such as pleadings, affidavits, instructions to the advocate, etc. are absolutely privileged. The acts of a
judge or magistrate are fully protected under absolute privilege. However, no judge or magistrate shall
exceed his jurisdiction and authorities in the judicial proceedings. An advocate can also enjoy absolute
privilege, in the course of a judicial proceeding, i.e. in inquiry, argument, etc. However, he should not
act with maliciously. His acts must be bona fide. A witness in the judicial proceedings can also enjoy
the absolute privilege, while he is deposing the evidence,
(c) Military and Naval Proceedings: Military and Naval Proceedings enjoy the absolute privilege
equally with those of judicial proceedings,
(d) State Proceedings: State proceedings are the acts of State. They are absolutely privileged.
(ii)
QUALIFIED PRIVILEGE
(EQ/SN)
“Qualified privilege” in the law of defamation extends to all communications made bona fide upon
any subject-matter in which the party communicating has any interest, or in reference to which he has ,
a duty to a person having a corresponding interest or duty. The privilege embraces cases where the
duty is not a legal one, but where it is of a moral or social character of Imperfect obligation. The maker
of the statement under this privilege can obtain defence, even though such statement is false and
defamatory, however, such statement should not be made with malice. If the plaintiff successfully •
proves malice on the part of the defendant, qualified privilege cannot be given to the defendant.
Circumstances of qualified privilege: Some of the circumstances are given hereunder explaining
under which qualified privilege can be utilised by the defendant.
(a) Duty or interest: Where the defendant communicated the defamatory statement to a third party
under a duty, and the third person has the corresponding interest, he is entitled to utilise the qualified
privilege. Similarly, where the defendant has an interest to protect and the third person has a duty to
protect that interest, then also the defendant Is entitled qualified privilege. Examples: The
communications between wife and husband, advocate and client, father and son, doctor and patient.
etc.
(b) Self-protection: Where the defendant made certain defamatory statements forthe self-protection,
i.e., to safeguard his business, etc., he is entitled forqualified privilege. .
Example: Ramu is the shop-owner, and Laxman is his salesman. Ramu saysto Laxman: “Don’t sell
any article to one Jagadish unless he pays money for it, fori have no opinion of his honesty. ’’ Here to
safeguard his business, Ramu instructed his salesman in good faith. Therefore he is protected under
qualified privilege,
(c) Protection of common interest: Where the defendant had communicated certain information
against the plaintiff to the third party, in which case, the defendant and the third party has common
interest, in such circumstances, the defendant can invoke the defence of qualified privilege.
Examples: A letter written by an advocate on behalf of his client to a third person; a letter written by to
be father-in-law explaining his son’s character to would be bride; etc.
(d) Complaints to higher officials: Where an aggrieved person complaints against the lower officials
to higher officials, such person is protected under qualified privilege. Here, the person receiving the
communication or complaint must be a competent person to do so. Otherwise, the defendant is not
entitled to get the defence of qualified privilege.
Examples: Complaint to the District Collector against the M.R.O.; complaint against bus driver to the
R.T.C. Depot Manager; complaint against a post-master to Post-Master General, etc.
(e) Fair Reports: Fair reports made in the course of Parliamentary proceedings; judicial proceedings;
quasi-judicial proceedings; public meetings; etc. are the communications entitled forthe defence of
qualified privilege.
157
Unit - IV : Defamation, Negligence, Etc.
DISTINCTION BETWEEN ABSOLUTE PRIVILEGE AND QUALIFIED
ABSOLUTE PRIVILEGE
1.
PRIVILEGE
(EQ/SN)
QUALIFIED PRIVILEGE
The defendant can avail the defence of
1.
The defendant can avail the defence of
absolute privilege, even though he made the
false and defamatory statement deliberately
qualified privilege, even though he made the
false and defarhatory statement deliberately,
and with malice.
but without malice.
2.
Absolute privilege can be used as a defence in
the Parliamentary, judicial, naval, military dr
State proceedings.
2.
Qualified privilege can be used as a defence in
the communications made (a) in the course of
legal, social or moral duty, (b) for self
protection, (c) for protection of common
interest, (d) for public good; (2) reports of
Parliamentary and judicial proceedings; and (3)
proceedings at public meetings.
3.
Certain occasions and their nature are pre
fixed, enabling to grant the absolute privilege.
3.
In qualified privilege, no such occasion or
nature are pre-fixed. In this the defendant does
not prove privilege until he has shown how that
Once the nature and occasions are decided,
every statement made in such occasion and
occasion was used.
nature, is protected under absolute privilege.
4.
"Salus populi estsuprema" is considered
more in granting the absolute privilege.
4.
'Salus populi est suprema" is considered in
relation to personal relations, duties, interests,
etc., while allowing qualified privilege.
5.
A speech of a Member of Parliament in the
5.
Parlimamentary proceedings is protected by
absolute privilege.
A speech given by a Member of Parliament in
a public meeting is not covered under absolute
privilege. However, if the Member of
Parliament can prove the nature and occasion,
he can avail the defence of qualified privilege. |
4. CONSENT: Where the defendant had communicated or published certain defamatory matter with
the consent of the plaintiff, or the plaintiff himself invited the defendant to repeat the defamatory words
before the witnesses, the defendant can plead it as his defence.
5. APOLOGY: Where the defendant had communicated or published certain defamatory matter
against the plaintiff, and later he came to know that he did a mistake. The defendant meets the plaintiff
and requests to excuse him, and submits his apology to the plaintiff. If the plaintiff agrees his apology,
the dispute is settled amicably between them on a simple apology.
4.B.
NEGLIGENCE
DEFINITION AND ESSENTIALS OF “NEGLIGENCE
jj
0.1.
What are the essential elements of Tort of Negligence? What are the defences available for an action of Negligence?
(July. 2003, O.U.) (Sept., 2013, O.U.)
Q.2.
What is negligence?
Q.3.
When is negligence recognized as an independent tort? Explain with case-law.
Q.4.
Discuss the “Neighbour’s Rule” in the Tort of Negligence. Explain the applicability of this Rule with special reference to negligent
mis-statements.
(Feb., 2005, O.U.)
Q.5.
What are the essential elements of “Negligence”?
Q.6.
“Negligence is the complex concept of duty to take care, its breach and consequential damage.”
Is it a Specific tort?
Refer to
decided cases.
(Aug., 2012, O.U.)
(Dec., 2007, O.U.)
What are the defences available for an action in Negligence?(AnI. 2005, P.U.)
Comment.
(Aug., 2004, O.U.)
Q.7.
What are the defences in a Suit of Tort of Negligence?
(Jan., 2003, O.U.)
Q.8.
What is negligence?
(Jan., 2003, G.U.)
Q.9.
Explain the manufacturer’s liability in the light of “Donoghue vs. Stevenson”.
Explain with decided cases'.
Discuss the different theories of negligence.
Q.10. SUBJECTIVE THEORY OF NEGLIGENCE.
Q.11. Imperitia Culpae adnumeratur.
Q.12. OBJECTIVE THEORY OF NEGUGENCE.
(Aug., 2002, A.U.)
(SN)
(SN)June, 2001, M.U.)
(SN
Q.13. ESSENTIALS OF NEGLIGENCE.
(SN)
Q.14. DUTY OF CARE TO THE PLAINTIFF/NEIGHBOUR’S RULE.
(SN)
Q.15. # DONOGHUE vs. STEVENSON (1932 AC 562).
(SN)
Q.16. NEIGHBOUR’S RULE.
(SN)
Q.17. R.T.C. vs. Bezium Bibi (AIR 1980 Cal. 165).
(SN)
Q.18. Shushma Mitra vs. M.P.S.R.T.C. (AIR 1974 MP 68).
(SN)
158
The Law of Torts
Q.19. Municipal Board, Jaunpur vs. Brahm Kishore (AIR 1973).
(SN)
Q.20. # Bhagawan Das vs. Mohd. Arif (1987) (2) ALT 137).
(SN)
Q.21. # The General Manager, K.S.R.T.C., Trivandrum vs. Mrs. Susamma Thomals and other (1994 ALT 1 SC).
(SN)
Q.22. # Rondel vs. Worsley (1967) 3 W.L.R. 1666 (1967) 3 AER 993).
(SN)
Q.23. BREACH OF DUTY.
(SN)
Q.24. Nirmala vs. T.N. Elec. Board (AIR 1984 Mad. 201).
(SN)
Q.25. # Bolton vs. Stone (1951 AC 850 HL).
(SN)
Q.26. DAMAGES.
(SN)
ANSWER:
DEFINITION AND ESSENTIALS OF “NEGLIGENCE
(EQ/SN)
MEANING: Negligence in law means a coming short of the performance of duty. Negligence is not an
affirmative word. It is a negative word. It is the absence of such care, skill and diligence as it was the
duty of the person to bring to the performance of the work which he is said not to have performed. In
tort, it is an actionable.
DEFINITION: There are several definitions given by eminent justices and jurisprudents. Among
them, there are two important rival theories about the nature and definition of negligence. These
theories are: (1) Subjective Theory; and (2) Objective Theory.
(1)
SUBJECTIVE THEORY OF NEGLIGENCE
(SN)
According to this theory, negligence is a state of mind. This theory is supported by Salmond, Austin,
Winfield, etc.
Austin: “In case of negligence, a party performs not an act which he is obliged; he breaks a positive
duty.”
Salmond: “Negligence is culpable carelessness. Negligence essentially consists in the mental attitude
of undue indifference with respect to one’s conduct and its consequences. ”
Winfield: “Negligence as a tort is the breach of a legal duty to take care which results in damage,
undesired by the defendant to the plaintiff. Thus its ingredients are: (1) A legal duty on the part of A
towards B to exercise care in such conduct of A as falls
duty; (3) Consequential damage to B.”
within the scope of the duty; (2) Breach of the
According to the Subjective theory, all acts of a man are under the subject, i.e., control of his mind.
Happiness, sadness, love, fear, dare, etc. are the feelings of a man. Besides these feelings, sometimes,
man lies in a state of ‘indifference’. This indifference is the root cause of the negligence. When a
man did an accident, it depends upon his psychological feelings, and more particularly on his indifference.
In criminal cases, the Courts consider whether the wrong-doer has mens rea or not. If the wrong-doer
did the offence with the criminal intention and mens rea, the Courts punish him. In law of torts, courts
do not consider whether the wrong-doer has mens rea or not, but how much damage was caused to
the victim/aggrieved person by the conduct of the wrong-doer, and how much compensation shall be
payable. The jurisprudents think about the indifference and mental condition of the wrong-doer in torts.
If I drive the vehicle in extra-ordinary speed, it means that I know the consequences of such speed. If
I caused an accident, the Court punishes me under criminal law, and also orders me to pay
compensation to the victim under the law of torts. If I thought the consequences of the speed, I might
have reduced my speed. Reducing or enhancing of the vehicle’s speed was in my hand, which was
further controlled by my mind. The man does mistakes and wrongs depending upon his psychological
feelings. Therefore, all negligence is occurred due to the indifference of man.
Salmond opines that the wrong-doer’s mental condition is also very much important in a negligent
dangerous criminal act. Where a person has no professional sklllfulness, he should not operate that
profession until he acquires such required stillness. For example, a layman is learning motor driving,
and he does not get the required skillfulness in driving. He should not drive the vehicle until he acquires
complete professional skillfulness. If he drives a vehicle with over-enthusiasm, and causes accidents
and kills, it is his severe wrong. It is resulted due to the weak mind of subjective. The law does not
excuse him.
Imperitia Culpae adnumeratur: This legal maxim means “Inexperience is accounted as a wrong”.
An inexperienced person does not possess skillfulness. He cannot think properly and efficiently.
Inexperience leads to negligent and wrongful act.
2.
OBJECTIVE THEORY OF NEGLIGENCE
(SN)
According to this theory, negligence is not a state of mind, but merely a type of conduct of the person.
This theory is supported byAlderson, Clark and Lindsell, Lord Wring, Pollock, etc.
Unit - IV : Defamation, Negligence, Etc.
159
Pollock: “Negligence is the contrary of diligence and no one describes diligence as state of mind. ”
Clark and Lindsell: “Negligence is the omission to take such care as under circumstances it is the
legal duty of a person to take. It is in no sense a positive idea and has nothing to do with a state of
mind.”
Alderson: “Negligence is the omission to do something which a reasonable man guided upon whose
considerations which ordinarily regulate the conduct of human affairs, would do or doing something
which a prudent and reasonable man would not do. ”
Lord Wring: “In strict legal analysis, negligence means more than headless or careless conduct,
whether in omission or commission. It properly connotes the complex concept of duty, breach and
damage thereby suffered by the person to whom the duty owed. ”
According to this theory, negligence is caused by the conduct of the person, but not by his mental
condition. The Courts must punish the wrong-doer in criminal or tort cases depending upon his conduct,
and the quantum of the wrong done by him. This theory says that the mental condition of a wrong-doer
cannot be seen, but his conduct can be seen openly by his conduct. The result is objective, i.e., can
be seen and observed by the senses. It does not analyze the mental condition of the wrong-doer. It
only analyses the effects of the wrong, and the liability of the wrong-doer, on the evidences of his
conduct.
For example, a car driver drove the car on a pedestrian on the pavement. The incident itself shows
that the car driver negligently drove the vehicle upon the pavement, and caused the death of an innocent
pedestrian. The Courts must punish the car driver for his negligent driving, but should not think over
the personal feelings of the driver at the time of driving. If the car driver was in sadness, and indifference
and troubles, it was his duty not to drive the vehicle. If a car driver drives the vehicle without lights in the
night, it is his severe negligence. For his negligence, he must have been punished.
CONCLUSION: When we read these two theories, each theory seems to be correct on its argument,
and there is truth in each. However, the objective theory is utilised in the Law of Torts. The Courts in
tort cases enquire into the matter that how much damage was caused to the injured by the conduct of
the wrongdoer, and fix the liability accordingly. The subjective theory is useful in Jurisprudence and
social fields. By analysing the man’s conduct and feelings, the authorities can take certain preventive
steps, depending upon the subjective theory. In criminal law, the Courts consider the man’s mental
condition in fixing his liability.
ESSENTIALS OF NEGLIGENCE: 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.
That defendant made a breach of that duty; and
3.
That the plaintiff suffered damage as a consequence thereof.
1.
-
DUTY OF CARE TO THE PLAINTIFF/NEIGHBOUR’S RULE
(SN)
The plaintiff has to prove that the defendant owed duty of care to him. That duty must be a legal duty.
A mere moral, religious or social duty is not considered in the law of negligence.
PROBLEM: Aordered for a cool drink Coco-Cola in a restaurant of B. B supplied the Coco-Cola in a
sealed bottle of the company. Awhile drinking found some decomposed pieces of lizard. Afell sick
had vomiting and was taken to hospital. Examine the liability for A’s damages.
SOLUTION:
The manufacturers of Coco-Cola are liable to pay damages to A. The facts of the given
Problem are identical with the famous leading case “Donoghue vs. Stevenson”, which is given
below:—
# Donoghue vs. Stevenson (1932 AC 562)
(SN)
(Negligence - Neighbour’s Ruie)
Brief Facts: The appellant went to a retailer wine shop along with her boy friend. He purchased a
ginger-beer for her. The bottle was of dark opaque glass and closed with a metal cap, and the contents
were not seen. She poured some ginger beerfrom the bottle into a tumbler and consumed, and when
she poured the remaining ginger beer into tumbler, she observed the decomposed body of a snail
floated out. She brought It to the notice of the retailer. The ginger-beer already consumed affected on
her, and she was seriously suffered in her health. A suit was brought against the manufacturer of
ginger-beer. The manufacturer contended that he did not owe any duty of care towards the plaintiff.
JUDGMENT:
The House of Lords held that the manufacturers were liable for their negligence, and
that they owed a duty to take care for every consumer including the plaintiff that the bottles supplied by
them did not contain any harmful and noxious substances.
160
The Law of Torts
PRINCIPLES: 1. Every manufacturer has a duty to take care towards his consumers
product should not contain any harmful and noxious materials. It is a fixed duty by the law.
that their
2.
Lord Atkin observed: “A manufacturer of products, which he sells in such a form as to show that
form in which they left him with no reasonable
possibility of intermediate examination and with the knowledge that the absence ofreasonable 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 consumer to take that reasonable care.
he intends them to reach the ultimate consumer in the
”
3. Neighbour’s Rule: Lord Atkin propounded: “You must take reasonable care to
omissions which you can reasonably foresee would be likely to injure your neighbour. ’’
avoid acts or
4. The duty of care arises in any relation and in any connection, such as manufacturer-consumer,
seller-purchaser, house owner-tenant, doctor-patient, bus owner-passenger, and even some times
with strangers too. The Courts consider the actual relations to be analysed depending upon the
circumstances.
5. This case-law is a leading case-law in Law of Torts and Consumer Protection Laws in the world. It
guided the consumer awareness.
NEIGHBOUR’S RULE
(SN)
The so-called “neighbour principle” laid down in the above case Donoghue v Stephenson (1932)
by Lord Atkin. This rule has become the foundation and conceptual cornerstone for the development
of the law of negligence in the twentieth century. This rule/principle was articulated by Lord Atkin ot
determine the boundaries of the duty of care in negligence, which is considered in the context of other
relevant case law.
In Donoghue v Stephenson the House of Lords deemed it necessary to overcome the problems
generated by the privity of contract in order to provide an alternative route of claim for an injured
party. It was Mrs Donoghue’s friend that purchased the ginger beer that ultimately caused her injury
and therefore only her friend that had a right to sue under the contract. The House of Lords soived
this problem by imposing liability in negligence on the owner of the cafe, specifying that such
would be possible where a duty of care could be found to lie between the owner (the tortfeasors)
and the victim (Mrs Donoghue). Lord Atkin outlined the parameters of the duty of care in this field in
the following often-quoted terms:
“You must take reasonable care to avoid acts or ornissions
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 closely and directly affected by my act that I ought reasonably to have them in
contemplation as being affected when I am directing my mind to the acts or omissions which are
cailed in question.”
The neighbour principle therefore opens the door to claims in negligence for injured parties by
identifying the class of people to whom a duty may be owed in any particular scenario. That class of
people includes those who are close enough to be directly affected by the allegedly negligent act and
close enough that the alleged tortfeasor should have had their interests in contemplation when acting
as he or she did. It is clear that the principle does not throw open the floodgates to unlimited claims,
because a tortfeasor will not be held to owe a duty of care to those who are not close enough to be in
his or her contemplation at the moment of the tortuous act or omission.
For decades the neighbour principle stood as the sovereign guiding authority in this field of law. However,
whether the precedent set in Donoghue “provides an
adequate basis on which to resolve duty of care questions” and the answer to that question is offered
by subsequent judicial decisions on the issue.
the title to this work asks for a discussion as to
R.T.C. vs. Bezium Bibi (AIR 1980 Cal. 165)
(SN)
(Negligence - Neighbour’s Ruie)
The plaintiff’s son travelled on a top of R.T.C. bus. The driver and conductor allowed some of the
passengers to sit on the otp, as there was no sufficient space in the bus. While the bus was going, the
plaintiff’s son fell down from the bus due to striking of an overhanging branch of a tree, and died. The
Calcutta High Court held that the defendant/R.T.C. was held liable for damages to the plaintiff.
Shushma Mitra vs. M.P.S.R.T.C. (AIR 1974 MP 68)
(Negligence - Neighbour’s Ruie)
The plaintiff put her elbow on the window sill while she was travelling in bus. Atruck coming from the
opposite direction hit her in her elbow as a result of which she lost her elbow. The High Court held that
the R.T.C. was held liable. The High Court opined that it was the leastduty to take care of the passengers,
though some of them act foolishly.
Unit - IV: Defamation, Negligence, Etc.
161
Municipal Board, Jaunpur vs. Brahm Kishore (AIR 1973)
(Negligence - Neighbour’s Ruie)
The defendant/Municipality dug a pit, and left it unguarded and unsafe. No sign board or light was
arranged. In the evening the plaintiff came on bicycie and feil in the pit and got injuries. The High Court
heid thatthe defendant/Municipality was held liable for its negiigence.
# Bhagawan Das vs. Mohd. Arif (1987) (2) ALT 137)
(Negiigence - Neighbour’s Ruie)
# The Generai Manager, K.S.R.T.C., Trivandrum vs.
Mrs. Susamma Thomais and other (1994 ALT 1 SC)
[These two cases are prescribed. These two cases are expiained in Topic “Remedies”.]
Duty of the empioyers of the industries; Every employer of an industry should take all precautions
and take safeguards in producing the goods. At the same time, he has to take all precautions and take
safeguards to protect the employees. He should keep the environment of the factory and its surroundings
very clean and healthy. The Factories Act, 1948, The Environmental Protection Laws, etc., impose
statutory duty upon every management of the factory. If the workers’ health is affected, the management
is held liable to pay compensation under the Workmen’s Compensation Act, 1923, Dangerous Machines
(Regulation) Act, 1983, etc.
PROBLEM: A workman suffered a burn injury on his lower lip because of the negligence of his
employer. Later, the injury turned into cancer and resulted in his death . Is the employer liable for the
death of the workman? Discuss.
(Jan., 2003, G.U.)
SOLUTION: Yes. The employer is held responsible under the Workmen’s Compensation Act, 1923.
Duty of care in professions: The duty of care is given much irnportance in the fields of professions,
such as doctors, advocates, engineers, etc. They ought to take utmost care. They are honoured in
the society, because they possess the professional techniques, knowledge, skillness and experience.
The customers have no professional knowledge. They seek the help from such professionals, thinking
that they will get the appropriate remedies and assistance. If a professional of a field does not attend
the customer properly, and treats with indifference and negligence causing loss or injury to the customer,
he is held liable. The Consumer Protection Laws in every country aware the people and educate their
rights.
In India, the Consumer Protection Act, 1986 has brought a tremendous
development and awareness among the consumers; The Government established Consumer Forums
in every district. Afew years ago, the doctors were not sued for their negligent acts, viz., operations,
mis-advice, ill-treatment, etc. However, the recent judicial decisions and status brought the medical
persons under the Consumer Protection Act, and they are now liable for any negligent acts. (Caselaw: Hedley Byrne and Co.Ltd. vs. Heller and partners.) [Refer to Topic “Negligent Mis
Medical Services:
statement” for further details.]
Legal Profession: There were long standing and hot discussions on the topic whether Advocate’s
services would come within the purview of the tortuous liability and consumer protection laws.
In England: In England, it has been settled for a long period that a barrister (in England an advocate
is called as Barrister.) cannot be sued by his clients for breach of contract. Because the custom was
strong that the fees paid to a barrister is not paid towards the consideration of the services, but only for
honorarium.
# Rondel vs. Worsley (1967) 3 W.L.R. 1666 (1967) 3 AER 993)
(Negligence - Legal Profession)
Brief Facts: The plaintiff handed over a proceeding to the defendant-advocate. The case was lost
due to the negligence in conducting the trial. Aggrieved by the attitude of the advocate, the plaintiff
brought a civil proceeding against the advocate alleging his professional misconduct.
JUDGMENT: The House of Lords unanimously held that an advocate could not be sued by his client
in respect of alleged negligence in the conduct of a
trial.
However, in the later cases, the House of Lords held the advocates liable for professional misconduct.
In India: The Majority of Advocates did not like to include their profession in the Consumer Protection
Act, 1986. Different State Consurrier Commission gave the different decisions. The majority of the
decisions were in favour that the legal profession shall come under this act. While disposing the case
Lucknow Development Authority vs. M.K. Gupta (AIR 1994 SC 787), the Supreme Court observed:
“The term has variety of meanings. It may mean any benefit or any act resulting in promoting interest
or happiness. It may be contractual, professional, public, domestic, legal, statutory, etc. The concept
of service thus is very w/ofe.” [Refer to Topic “Services” in the Consumer Protection Law.]
^
162
The Law of Torts
2.
BREACH OF DUTY
(SN)
Breach of duty means non-observance of due care which is required in a particuiar situation. What is
the standard of care required? Does it require the standard of a reasonable man or of an ordinary
person? The answer is that if the defendant has acted like a reasonable prudent man there is no
negligence. There are two points in determining the standard of care - (i) The importance of the
object to be attained; and (ii) the magnitude of the risk. A balance has to be drawn between the
importance and usefulness of an act and the risk created by an act. A speed of 60 K.Ms. may not be
negligent for a fire brigade vehicle or ambulance. But the same speed may be treated as an act of
negligence for general vehicle. It is the general presumption that a person carrying a loaded gun is
expected to take more precaution than person carrying an ordinary stick or unloaded gun. The degree
of care depends upon the magnitude of risk which could have been foreseen by a reasonable and
prudent man.
Nirmala vs. T.N. Elec. Board (AIR 1984 Mad. 201)
(Negligence - Breach of Duty)
.
High tension wires running over a farm got snapped. As a result, the plaintiff’s husband died by the live
electric wire. The Court held that it was the duty of the defendants/T.N. Elec. Board to maintain the
electric wires properly and skillfully. The accident occurred due to their negligence and breach of duty.
The plaintiff was awarded damaged.
# Bolton vs. Stone (1951 AC 850 HL)
(Negligence - Breach of Duty)
Brief Facts: The defendants were the executive members of a cricket club. The defendants had a
ground enclosed by seven-feet fence, the top of which, owing to a slope, stood seventeen-feet above
the level of the pitch. One of the players hit the ball with a high speed, and that ball struck the plaintiff
who was on a side of road of residential houses. The plaintiff was injured severely. The distance was
about 78 yards from the fence and 100 yards from the ground. The plaintiff sued the defendants for
damages. The defendants pleaded that there was no negligence on their part, and they constructed
fencing around the ground with a 7' height, and previously too there were no instance of causing
injuries to any person.
JUDGMENT: The House of Lords admitted the argument of the defendants and gave the judgment in
favour of them, opining that there was neither negligence nor nuisance caused by the defendants.
They also opined that although the possibility of the ball being hit on to the highway might reasonably
have been foreseen, but it was not sufficient to impose liability upon the defendants, and it could not
establish their negligence.
Principles laid down: (1) Lord Reid observed: ‘‘What a man must not do, and what I think a careful
man tries not to do, is to create a risk which is substantial to 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
appellants considering the matter from the point of view of safety, would have thought it right to refrain
from taking steps, to prevent the danger. In considering that matter I think that 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. ”
3. DAMAGES: The third essential for negligence in tort is thatthe injured person is entitled for damages
to be paid by the defendant. The defendant is liable to pay damages, because he breaches his duty.
[Refer to Topic “Remedies” for Damages.]
2350 GOLDEN LEGAL MAXIMS
Compiled : Gade Veera Reddy
It is a useful book to law students. It contains 2350 legal maxims explained in English.
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Unit - IV : Defamation, Negligence, Etc.
163
RES IPSA LOQUITUR
Q.l.
Explain the legal maxim “Res ipsa loquitur”.
Q.2.
Res Ipsa Loquitur.
(AnI., 2009, O.U.) (AnI., 2010, A.U.) (AnI. 2011, S.U.) (AnI. 2012, B.U.) (AnI., 2014, M.U.)
(SN) (AnI., 2008, O.U.) (AnI., 2009, S.V.U.) (AnI., 2009, S.K.U.) (AnI., 2010, N.U.)
(AnI., 2011, G.U.) (July, 2012, M.U.) (AnI., 2013, P.U.) (AnI., 2014, D.U.)
Q.3.
P.A. Narayanan vs. Union of India and others (1998) 3 SCO 6).
Q.4.
Mohmed Rowther vs. Shunmugasundaram Chettiar (AIR 1943 Mad 343).
Q.5.
Gobald Motor Service vs. Veluswami (AIR 1962 SC 1).
Q.6.
# Byrne vs. Boadle (1863) 2 H & C 722).
Q.7.
Turner vs. National Coal Board (1949 TLR 65).
(SN)
Q.8.
Collector of Ganjam vs. Chandra Das (AIR 1975 SC 205).
(SN)
(SN)
(SN) (Ani., 2008, K.U.)
(SN)
(SN) (Ani., 2009, M.U.) (Ani., 2011, A.U.)
ANSWER:
RES IPSA LOQUITUR
(EQ/SN)
MEANING: "Res ipsa loquitur” is a Latin phrase. It means “proofof negligence’’; “the thing speaks
for itself’ and “the accident talks for itself ’’
There are many cases in which the accident speaks for itself so that it is sufficient for the plaintiff to
prove the accident and nothing more. The principle of "Res ipsa loquitur”shiftsthe proof of burden
from the plaintiff to defendant; and imposes liability upon the defendantthat the act complained was
not the result of his negligence.
P.A. Narayanan vs. Union of India and others (1998) 3 SCC 6)
(Res Ipsa Loquitor)
Brief Facts: This is the latest case-law on negligence and Res ipsa loquitu.r The wife of the appellant
Smt. Shantadevi was working as a Senior Lecturer in English. On 3-1-1981, she left foncollege and
travelled, as usual, by Harbour Line local train to Bandra from Kings Circle. She was having first class
railway pass. She was in first class ladies compartment. While the train was moving, four persons
entered into her compartment, robbed her jewellery, watch etc. She protested, and pulled the chain.
But despite of the ringing of the alarm bell neither the guard nor the motorman stopped the train. The
culprits injured and raped her. As a result she died.
JUDGMENT: The Supreme Court gave judgment on 13-2-1998, and severely condemned the
administration of railways. It opined that if the train was stopped when the victim pulled the chain, the
rape and consequently her death would have not occurred. It held that the negligence of the railway
employees was res ipsa loquitur m this case. The Court ordered the Central Government to pay Rs.
2 Lakhs to the husband/appellant.
Mohmed Rowther vs. Shunmugasundaram Chettiar (AIR 1943 Mad 343)
(Res Ipsa Loquitor)
A fire broke out in the house rented by the defendant in storing fireworks which were highly dangerous
and much loss was caused to the lesser. The quantity of explosives stored were at least 5,000 lbs.,
whereas the licence permitted was only 1,000 lbs. In an action for damages by the lessor, the maxim
"Res ipsa loquitur” was applied, and thus the defendant was held liable. The burden of proof was on
the defendant to show that he had complied with the terms of his licence and had not in any way been
negligent.
Essential requisites for the application of the maxim:—
1.
The thing which causes the harm must be under the control of the defendant.
2.
While under his control an accident happened which would not in the ordinary course of things
happen without negligence.
3.
The defendant gives no explanation.
Gobald Motor Service vs. Veluswami (AIR 1962 SC 1)
(Res Ipsa Loquitor)
Brief Facts: Rajaratnam (34 years) was travelling in the defendants’ bus. The bus driver drove the
vehicle with a high speed negligently and rashly, and he lost control over the vehicle. The bus was hit
with a great speed and velocity to a big tamarind tree, and then too it could not stop. It stopped by a
stone which was 25 feet away from the tamarind tree. The tamarind tree was damaged heavily. The
bus was damaged. After hitting the tree, Rajaratnam jumped down from the bus to save his life. In
164
■ The Law of Torts
doing so, he received serious injuries. All the passengers who were in the bus also received serious
injuries. Three days after the incident, Rajaratnam died. Veluswamy-dependent of the deceased
sued the defendants for damages. The defendants pleaded that there was contributory negligence.
JUDGMENT: The Supreme Court held that the facts on the face of the records were revealing that the
bus driver drove the vehicle with a great speed, causing damage to the tamarind tree and the bus too.
The damage caused to the tree and bus themselves were the eye-witnesses and “res ipsa loquitur”.
Both of them spoke the truth. Hence the defendants were held liable. [Also refer to Topic “Death in
relation to Tort”.]
# Byrne vs. Boadle (1863) 2 H & C 722)
(Res Ipsa Loquitor)
Brief Facts: The defendant was maintaining a warehouse. While the plaintiff was passing-by in the
street below, a barrel of flour had rolled out of an open doon/vay of the defendant’s warehouse and
fallen on the plaintiff. He sustained injuries. He sued the defendants.
responsible, and ordered him to pay
compensation to the plaintiff. They pointed out that the flour and barrel in the street, the flour on the
body of the victim were sufficient evidences and they spoke the facts of the incident against the defendant.
JUDGMENT:
The House of Lords held the defendant was
Principle: Where harm or injury is caused by an object under the management of the defendant or
his servants, and the accident is such as, in the ordinary course of things, does not happen if those
who have the management use proper care, a presumption arises, in the absence of explanation by
the defendant, that the accident was due to negligence.
Turner vs. National Coal Board (1949 TLR 65)
(Res Ipsa Loquitor)
Due to the breaking of a steel rope, which hauled the trucks, accident occurred. As a result, plaintiff
and some others were injured. It was evident that it was the second instance within one week. The
steel ropes arranged for the purpose were broken twice in a week. The defendants could not explain
why the ropes broke, but they had proved that they had taken reasonable care to provide a proper
system. The Court accepted the averments of the defendants that they took reasonable care. It
acquitted them.
Collector of Ganjam vs. Chandra Das (AIR 1975 SC 205)
(Res Ipsa Loquitor)
The portico of the Government Hospital fell down and killed a person on the spot. The portico was
constructed just three years back. The Court held that the collapse of the portico of the costly building
of the hospital within 3 years of its construction told its own story and must be ascribed to the inherent
defect in the construction and applied the maxim “Res ipsa loquitur”.
Chitravathi Project: This irrigation project was constructed in 1992 by the A.P. State Government
giving the contracts to private persons under the supervision of P.W.D. officials. The contractors
bribed the officials, and constructed the project with lowest quality. They used earth and stones instead
of cement. Within two years the earth was washed away and stones came out. “Vartha” a Telugu
daily wrote an investigative essay in June, 1997 with photos and evidences. The project could not
survive for more than a year. If it is deteriorated, the agriculturists will be put into heavy loss. The
construction itself speaks the truth of the cheap construction and the conspiracy between the contractors
and some of the P.W.D. officials. The A.P. Government appointed a Technical Committee to probe into
the affairs of this project.
This is only one example. During governance of the Late Raja Sekhara Reddy, the then Chief Minister
of Andhra Pradesh huge amounts on ‘Jala Yagnam’ were invested. There were no positive results.
Instead of the development, the entire amount went into the hands of his son, followers and officers.
The opposite parties called it as ‘Dhana Yagnam’. Sri Jagan Mohan Reddy, s/o Late Raja Sekhara
Reddy and several ministers and officers are involved in the criminal cases. The properties acquired
by Sri Jagan Mohan Reddy and his followers within a short period of six or seven years are the example
for res ipsa loquitur. Income-tax returns and all other government documents are res ipsa loquitur.
Note : # Marked cases are very important. These are prescribed and leading CaseLaws. Essay Questions, Short Notes or Problems may be asked basing upon the
Case-Laws. Student is advised to memorise the Case-Laws, whether prescribed
-GVR
or not perfectly.
165
Unit - IV: Defamation, Negligence, Etc.
CONTRIBUTORY NEGLIGENCE
4.B.(iii).
Q.1.
Distinguish between contributory negiigence and composite negiigence.
Q.2.
Define “Contributory Negligence”.
(May, 2009, O.U.) (AnI., 2012, A.U.) (AnI. 2013, P.U.)
Discuss the generai principies of contributory negligence with decided
cases.
(May, 2010, B.U.) (May, 2011, G.U.) (AnI., 2012, N.U.) (AnI., 2013, A.U.)
Q.3.
What is meant by “Contributory Negiigence”?
How does it differ from “Negligence”?
Q.4.
Explain Contributory Negligence.
Q.5.
What is meant by “Contributory Negligence”?
Q.6.
Explain the defence of Contributory Negligence. What are the exceptions to this Defence? Give illustrations.
Q.7.
Contributory Negligence.
Q.8.
Yoginder Paul Chowdhury vs. Durgadas (1972 SCJ 483 Del).
Q.9.
# Butterfield vs. Forrester (1809) 11 East 60).
(AnI., 2011, S.U.)
(May, 2011, A.U.)
How far contributory negligence is a valid defence?
(AnI., 2014, P.U.)
(Dec., 2010, O.U.)
(SN) (AnI., 2009, S.K.U.) (AnI., 2010, M.U.) (AnI., 2011, D.U.) (AnI., 2012, K.U.) (AnI., 2013, PU.)
(Anl., 2014, D.U.)
(SN)
(SN) (Anl., 2008, K.U.) (Anl., 2012, A.U.) (Anl., 2013, N.U.)
Q.10. Nance vs. British Columbia Elec. RIy. Co. (1951 AC 601).
(SN)
Q.11. Harris vs. Toronto Transit Commission (1968 ACJ 448).
(SN)
Q.12. Gobald Motor Service Ltd. vs. Veluswami (AIR 1961 SC 1).
(SN)
Q.13. Defences to the Contributory Negligence.
(SN)
Q.14. # Dann vs. Hamilton (1939) 1 KB 509).
(SN)
(SN) (Anl., 2010, K.U.) (Anl., 2011, N.U.) (Ani., 2012, S.U.)
Q.15. THE LAST OPPORTUNITY RULE.
Q.16. Davies vs. Mann (1882) 10 M.and W. 546).
(SN)
Q.17. British Columbia Electric Co. vs. Loach (1916) 1 AC 719).
(SN)
Q.18. Cooke vs. Midland Great Western Railway of Ireland (1909 AC 229).
(SN)
Q.19. DISTINCTION BETWEEN CONTRIBUTORY NEGLIGENCE AND COMPOSITE NEGLIGENCE.
(SN) (Anl., 2009, K.U.) (Anl., 2012, O.U.)
ANSWER:
CONTRIBUTORY NEGLIGENCE
(EQ/SN)
MEANING: Every person is expected to take reasonable care of him. Thus a man who keeps his
hand outside the window of a railway coach or hangs on the footboard knowing the risk involved in
such act invites the injury himself and cannot claim for damages. At common law, contributory
negligence of the plaintiff is a complete defence to an action for damages for negligence of the defendant.
The burden of proof lies upon the defendant. The principle underlying the Doctrine Contributory
Negligence is that when both the parties are equally to blame, neither can hold the other liable.
Example: At the railway crossing, the gates are closed at the time of train coming. A gate keeper
locks it automatically. However, due to hurry and urgent works, some people cross the railway line,
observing the speed of the train. Sometimes train hits. We read in newspapers several times that a
jeep with passengers was hit by train, or a bus was hit by train while crossing the railway line. In those
circumstances, the railway company or authorities are not held liable. The reason is that the fault is
done by the victim himself. He himself invites the danger, knowingly to face it and suffers the injury.
Yoginder Paul Chowdhury vs. Durgadas (1972 SCJ 483 Del)
(Contributory Negligence)
A pedestrian who tried to cross a road all of a sudden and was hit by a moving vehicle, was guilty of
contributory negligence.
# Butterfield vs. Forrester (1809) 11 East 60)
(Contributory Negligence)
The defendant wrongfully obstructed road by placing a pole across it. The plaintiff was riding his van.
He drove the horses at such an excessive speed. He was overthrown by the pole and injured. There
was sufficient day light to see the obstruction at a distance of 100 yards. If the plaintiff would have
taken reasonable care and reduced his speed, the accident might have not been occurred. He sued
the defendant for obstructing the road.
JUDGMENT: The Court of Appeal held that the plaintiff
was himself liable under this doctrine.
Principle: Lord Eilenborough, C.J. observed: “One person being in fault will not dispense with
another’s using ordinary care for himself. Two things must occur to support this action, an obstruction
in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the
plaintiff.”
166
The Law of Torts
Nance vs. British Columbia Elec. RIy. Co. (1951 AC 601)
(Contributory Negligence)
The deceased crossed the road which had become slippery due to ice. As he suddenly came in front
of the motor vehicle he was run over by the motor. It was held that there was contributory negligence
on the part of the deceased. Hence.the defendant was
not held liable.
Harris vs. Toronto Transit Commission (1968 ACJ 448)
(Contributory Negligence)
A boy was sitting in a bus projected his arm outside the bus. The conductor warned the boy. The boy
did not heed the instructions of the conductor. He was injured by opposite coming vehicle. The Court
held that the boy was not entitled for damages due to the contributory negligence.
Gobald Motor Service Ltd. vs. Veluswami (AIR 1961 SC 1)
[Refer to Topics “Res ipsa loquitur” and “Damages in relation to death”.]
The Law Reforms (Contributory Negligence) Act 1945 has changed the English common Law
Rule, which was applied before viz. that parties guilty of negligence had no claim. The Act is extended
to the Employees’ Compensation Act of 1925. However, in India, there is no such statute so far.
DEFENCES: The Contributory negligence is no defence in the following cases:—
1.
Where the defendant is not bound to take care and has a right to assume that the defendant has
done ail things rightly and carefully.
2.
Where the defendant had later opportunity, than the plaintiff of avoiding the accident by reasonable
care.
3.
The doctrine of contributory negligence is not applicable to
4.
Doctrine of alternative danger where the defendant has placed the plaintiff in situation of extreme
peril, he cannot set up the defence of contributory negligence.
5.
The doctrine does not apply to cases of children. The contributory negligence of a child is not a
marine law.
defence.
PROBLEM: A, knowing that B was under the influence of drunkenness, choose to travel by a car
driven by B. Due to the drunkenness of B the car met with an accident. A sues B. Will A succeed?
(Jan., 2007, Burd. U.) (June, 2003, M.U.)
SOLUTION:
Yes. A will succeed. The facts of the problems are identical with ieading case Dann
vs. Hamiltan.
# Dann vs. Hamilton (1939) 1 KB 509)
(Contributory Negiigence)
Brief Facts: The plaintiff Dann and another Taunton engaged Hamilton, a taxi driver to see Edward
Vill’s Coronation and sightseeing of London. When she engaged him for taxi, she found that Hamilton
heavily drank. Three saw certain sights in London. During this period, Hamilton drove the car very
speedily. Taunton frightened with his driving, and stopped the car nearer to his residence and went
away. Before leaving the car, Tauton said to Miss Dann that ‘You have more pluck than 1 have” to which
she replied: “You should like me; if anything is going to happen let it happen.” After leaving Taunton,
Hamilton drove the car very speedily to an electric post. In the accident, Hamilton dead. Miss Dann got
severe injuries, and cured in the hospital after several days. She sued the heirs of Hamilton for damages
under the Law Reforms Miscellaneous Provisions Act, 1934. The heirs of Hamilton argued that
the plaintiff knew that Hamilton heavily drank, thus she was responsible under the Doctrine of Contributory
Negligence.
JUDGMENT: The King’s Bench gave judgment in favour of the Dann, the plaintiff on the ground that
although the plaintiff might be at sciens she could not be said to be at volens.
THE LAST OPPORTUNITY RULE
(SN)
MEANING: When two persons were negligent, that one of them, who had the last opportunity of
avoiding the accident by taking ordinary care, should be liable for the loss. If the plaintiff had an
opportunity to avoid the accident, but he could not take proper steps to prevent it, he could not make
the defendant liable. If the defendant had an opportunity to avoid
proper steps to prevent it, he could be made liable.
the accident, but he failed to take
Unit - IV: Defamation, Negligence, Etc.
167
Davies VS. Mann (1882) 10 M.and W. 546)
(Contributory Negligence - The Last Opportunity Rule)
The plaintiff fettered the fore-feet 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 ‘last opportunity’
to avoid the accident.
British Columbia Electric Co. vs. Loach (1916) 1 AC 719)
(SN)
(Contributory Negligence - The Last Opportunity Rule)
Brief Facts: This case-law stands as a good example for “Constructive Last Opportunity”. The
defendants were the tramway company running tramways. The deceased was a passenger in one of
the tramways of the company. The driver of the tramway reached a railway line crossing. Without
observing or noticing whether the any train was coming or not, he drove the vehicle speedily on the
railway line. At that time a train was coming. Suddenlythedriver had applied brakes. Due to defective
brakes, the vehicle could not stop. The train crashed the tramway causing the death of passenger.
The dependent of the deceased sued the tramway company. The defendants pleaded that there was
a last opportunity to the deceased and he could have jumped down from the tramway, and could have
saved his life. They contended that the deceased could not avail the last opportunity, and it was his
fault, and therefore, they were not held liable.
JUDGMENT:The House of Lords did not admit the contention of the defendants, and hold that the
defendants must have trained the drivers of the tramway to stop and check the trains at the railway
lines and then to cross. They opined that the defendants utterly neglected this duty and therefore they
ordered the defendants to pay compensation to the plaintiff/depe ndent.
Cooke vs. Midland Great Western Railway of Ireland (1909 AC 229)
(Contributory Negligence - The Last Opportunity Rule)
Brief Facts: The defendants were a railway company. They arranged a turntable on their land. The
turntable was very nearer to the road. The defendants constructed fencing around their boundary.
The children of vicinity used to come to turntable, through a gap made in the fence. The defendants
and their employees saw the children coming and playing with turntable, but did not object. The
plaintiff’s four year child visited the turntable to play. While playing with turntable, she was injured. The
plaintiff sued the defendants for damages: The defendants pleaded contributory negligence as their
defence.
JUDGMENT: The House of Lords gave the judgment in favour of the plaintiff. They opined that the
plaintiff’s child was a licensee. It was the duty of the defendants to lock the turntable and to fill up the
gap in the fence. They failed in their duty. There was no contributory negligence on the part of the
children. They were licensees in the said circumstances. Being childhood, they were allured by the
unlocked turntable, which was the result of negligence of the defendants. Defendants had a last
opportunity to fill up gap in the fence and to lock the turntable. Hence the defendants were held liable.
DISTINCTION BETWEEN CONTRIBUTORY NEGLIGENCE AND COMPOSITE NEGLIGENCE:
In contributory negligence, both the parties contribute negligence. We have read the examples and
case-laws above. In composite negligence, as the term itself indicates defendant is held liable solely,
strictly and absolutely.
If a plaintiff is injured or has sustained damage due to his own negligence, which has contributed to the
accident caused by the wrongful conduct of the defendant, he has committed an act of contributory
negligence.
Whereas ‘Composite Negligence’ refers to the negligence on the part of two or more persons.
Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said
that the person was injured on account of the composite negligence of those wrong-doers. In such a
case, each of the wrongdoers, is jointly and severally liable to the injured for payment of the entire
damages and the injured person has the choice of proceeding against all or any of them. In such a
case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it
necessary for the court to determine the extent of liability of each wrong-doer separately.
The Law of Torts
168
4.C. TORTS AGAINST BUSINESS RELATIONS / ECONOMIC TORTS
Q.l.
What is meant by ‘Torts against Business Relations’?
Q.2.
What is meant by ‘Economic Torts’?
Q.3.
Mogul Steamship Co Ltd (1889) LR 23 QBD 598).
(SN)
Q.4.
Taff Vale Railway v. Amalgamated Society of Railway Servants (1901 AC 426).
(SN)
Q.5.
The Trade Disputes Act 1906 (UK).
(SN)
Q.6.
Tortuous Interference.
(SN)
Q.7.
Intentional Interference with Contractual Relations.
(SN)
Q.8.
Garret v Taylor (79 Eng. Rep. 485 (K.B. 1620).
(SN)
Q.9.
Tarleton v McGawley (170 Eng. Rep. 153 (K.B. 1793).
(SN)
Q.10. Keeble v Hickeringill (1707)103 Eng. Rep. 1127).
(SN)
Q.11. OBG V Allan (et al 2008 1AC 1).
(SN)
Q.12. Wrongful Interference.
(SN)
Q.13. Causing loss by unlawful means.
(SN)
Q.14. Tortuous Interference of Business.
(SN)
(SN)
Q.l5. Tortuous Interference of Contract.
Q.16. Unfair Trade Practices.
(SN) (Apr., 2012, O.U.)
ANSWER:
TORTS AGAINST BUSINESS RELATIONS / ECONOMIC TORTS
(EQ/SNs)
MEANING: Economic Torts, which are also called Business Torts, are torts that provide the common
law rules on liability which arise out of business transactions such as interference with economic or
business relationships and are likely to involve pure economic loss.
NATURE OF ECONOMIC TORTS:
Economic Torts are tortuous
interference actions designed
to protect trade or business. The area includes the Doctrine of Restraint of Trade and, particularly
in the United Kingdom, has largely been submerged in the twentieth century by the statutory
interventions on the collective labour law and the modern competition law, and certain laws
governing intellectual property, particularly unfair competition law. The “absence of any unifying
principle drawing together the different heads of economic tort liability has often been remarked upon.”
The principal Economic Torts are:—
•
passing off,
•
injurious falsehood and trade libel (see also Food libel laws),
•
conspiracy,
•
inducement of breach of contract,
•
tortuous interference (such as interference with
trade),
•
negligent misrepresentation, and
•
watching and besetting.
economic relations or unlawful interference with
These torts represent the common law’s historical attempt to balance the need to protect claimants
against those who inflict economic harm and the wider need to allow effective, even aggressive,
competition (including competition between employers and their workers).
Two cases demonstrate economic torts’ affinity to competition and labour law. In Mogul Steamship
Co Ltd (1889) LR 23 QBD 598), the plaintiffs argued they had been driven from the Chinese tea
market by a ‘shipping conference’, that had acted together to under price them. But this cartel was
ruled lawful and “nothing more [than] a war of competition waged in the interest of their own trade.”
Nowadays, this would be considered a criminal cartel.
In English labour law the most notable case is Taff Vale Railway v. Amalgamated Society of Railway
Servants (1901 AC 426). The House of Lords thought that unions should be liable in tort for helping
workers to go on strike for better pay and conditions. But it riled workers so much that it led to the
creation of the British Labour Party and the Trade Disputes Act 1906. Further torts used against
unions include conspiracy, interference with a commercial contract or intimidation.
Tortuous Interference, also known as intentional interference with contractual relations, in
the common law of torts, occurs when a person intentionally damages the plaintiff’s contractual or
Unit - IV: Defamation, Negligence, Etc.
169
Other business relationships. This tort is broadly divided into two categories, one specific to contractual
relationships (irrespective of whether they involve business), and the other specific to business
reiationships or activities (irrespective of whether they involve a contract).
Tortuous interference with contract rights can occur where the tortfeasor convinces a party to breach
the contract against the plaintiff, or where the tortfeasor disrupts the ability of one party to perform his
obligations under the contract, thereby preventing the plaintiff from receiving the performance promised.
The classic example of this tort occurs when one party induces another party to breach a contract with
a third party, in circumstances where the first party has no privilege to act as it does and acts with
knowledge of the existence of the contract. Such conduct is termed tortuous inducement of breach of
contract.
Tortuous interference with business relationships occurs where the tortfeasor acts to prevent
the plaintiff from successfully establishing or maintaining business relationships. This tort may occur
when a first party’s conduct intentionally causes a second party not to enter into a business relationship
with a third party that otherwise would probably have occurred. Such conduct is termed tortuous
interference with prospective business relations, expectations, or advantage or with prospective
economic advantage.
In either of the above situations, the tortfeasor’s conduct must be intentional. There is no cause of
action for merely negligent interference with the performance
of a contract.
An early, perhaps the earliest, instance of recognition ofthis tort occurred in Garret v Taylor (79 Eng.
Rep. 485 (K.B. 1620). In that case, the defendant drove customers away from the plaintiff’s quarry by
threatening them with mayhem and also threatening to “vex [them] with suits”. The King’s Bench
Court said that “the defendant threatened violence to the extent of committing an assault upon ...
customers of the plaintiff... whereupon ‘they all desisted from buying.” The Court therefore upheld a
judgmentforthe plaintiff.
In a similar case, Tarleton vMcGawley (170 Eng. Rep. 153 (K.B. 1793), the defendant shot from its
ship Othello off the coast of Africa upon natives while “contriving and maliciously intending to hinder
and deter the natives from trading with” plaintiff’s rival trading ship Bannister. This action caused the
natives (plaintiff’s prospective, customers) to flee the scene, depriving the plaintiff of their potential
business. The King’s Bench court held the conduct actionable. The defendant claimed, by way of
justification, that the local native ruler had given it an exclusive franchise to trade with his subjects, but
the court rejected this defense.
The tort was described in the case of Keeble v Hickeringill (1707) 103 Eng. Rep. 1127), styled as a
“trespass on the case”. In that case, the defendant had used a shotgun to drive ducks away from a
pond that the plaintiff had built for the purpose of capturing ducks. Thus, unlike the foregoing cases,
here the actionable conduct was not directly driving the prospective, customers away, but rather
eliminating the subject matter of the prospective business. Although the ducks had not yet been
captured, the Justice Holt wrote for the court that “where a violent or malicious act is done to a man’s
occupation, profession, or way of getting a livelihood, there an action lies in all cases.” The court noted
that the defendant would have the right to draw away ducks to a pond of his own, raising as a comparison
a 1410 case in which the court deemed that no cause of action would lie where a schoolmaster
opened a new school that drew students away from an
old school.
The application of the above has since been modified in UK law in OBG v Allan (etar2008 1AC 1)
Wrongful interference; The unified theory which treated causing loss by unlawful means as an
extension ofthe tort of inducing a breach of contract was abandoned; inducing breach of contract and
causing loss by unlawful means were two separate torts, inducing a breach of contract was a tort of
accessory liability, and an intention to cause a breach of contract was a necessary and sufficient
requirement for liability; a person had to know that he was inducing a breach of contract and to intend
to do; that a conscious decision not to inquire into the existence of a fact could be treated as knowledge
for the purposes of the tort; that a person who knowingly induced a breach of contract as a means to
an end had the necessary intent even if he was not motivated by malice but had acted with the motive
of securing an economic advantage for himself; that, however, a breach of contract which was neither
an end in itself nor a means to an end but was merely a foreseeable consequence of a person’s acts
did not give rise to liability; and that there could be no secondary liability without primary liability, and
therefore a person could not be liable for inducing a breach of contract unless there had in fact been a
breach by the contracting party.
Causing loss by unlawful means: Acts against a third party counted as unlawful means only if they
were actionable by that third party if he had suffered loss; that unlawful means consisted of acts
intended to cause loss to the claimant by interfering with the freedom of a third party in a way which
was unlawful as against that third party and which was intended to cause loss to the claimant, but did
170
The Law of Torts
not include acts which might be unlawful against a third party but which did not affect his freedom to
deal with the claimant Strict liability for conversion applied only to an interest in chattels and not to
choses in action; this was too radical to impose liability for pure economic loss on receivers who had
been appointed and had acted in good faith. This also left open the position where they breached the
duty of good faith.
1.
Tortuous interference of business: When false claims and accusations are made against a
business or an individual’s reputation in order to drive business away.
2.
Tortuous interference of contract: When an individual uses “tort” (a wrongful act) to come
between two parties’ mutual contract.
Although the specific elements required to prove a claim of tortuous interference vary from one jurisdiction
to another, they typically include the following:—
1.
The existence of a contractual relationship or beneficial business relationship between two parties.
2.
Knowledge of that relationship by a third party.
3.
Intent of the third party to induce a party to the relationship to breach the relationship.
4.
Lack of any privilege on the part of the third party to
5.
The contractual relationship is breached.
6.
Damage to the party against whom the breach occurs.
induce such a breach.
The first element may, in employment-at-will jurisdictions, be held fulfilled in regards to a previously
unterminated employer/employee relationship.
Typical legal damages for tortuous interference include economic losses, if they can be proven with
certainty, and mental distress. Additionally punitive damages may be awarded if malice on the part of
the wrongdoer can be established.
Equitable remedies may include injunctive relief in the form of a negative injunction that would be used
to prevent the wrongdoer from benefiting from any contractual relationship that may arise out of the
interference, i.e., the performance of a singer who was originally contracted with the plaintiff to perform
at the same time.
UNFAIR TRADE PRACTICES: In India, there are several Acts enacted by the Indian Parliament.
Examples: The Industrial Disputes Act, 1957; The Competition Act, 2002; The Monopolies and
Restrictive Trade Practices Act, 1969 (The MRTP Act); The Copyright Act, 1957; The Trade and
Merchandise MarksAct, 1958; The Trade Marks Act, 1999; The Consumer Protection Act, 1986;etc.
4.D.
Q.l.
INJURIOUS FALSEHOOD / MALICIOUS FALSEHOOD
Explain the elements of the Tort of “False Imprisonment”, and distinguish it from the Tort of “Malicious Prosecution”.
(AnI., 2008, K.U.) (AnI., 2009, N.U.) (AnI., 2010, A.U.) (AnI., 2011, M.U.) (July. 2013, O.U.) (Anl., 2014, G.U.)
[Also refer to Topic “False Imprisonment”.]
Q.2.
Injurious Falsehood.
Q.3.
Malicious Prosecution.
(SN) (May, 2010, B.U.)
Q.4.
DISTINCTION BETWEEN MALICIOUS FALSEHOOD AND DECEIT.
(SN) (Anl., 2010, D.U.)
Q.5.
DISTINCTION BETWEEN MALICIOUS FALSEHOOD AND DEFAMATION.
(SN) (Anl., 2011, M.U.)
Q.6.
Forms of Malicious Falsehood.
(SN) (Anl., 2012, A.U.)
Q.7.
Slander of Title.
(SN) (Anl., 2010, K.U.)
Q.8.
Slander of Goods.
(SN) (Anl., 2011, K.U.)
(SN) (Dec., 2008, O.U.) (Anl., 2014, K.U.)
ANSWER:
INJURIOUS FALSEHOOD / MALICIOUS FALSEHOOD
(EQ/SN)
MEANING:
Falsehood” means necessarily the violation of truth for purposes of deceit. It also
denotes “Lie”. Where A tells lies to B against C, which A knows that they are false and also knows
that by his false statement, some injury will occur to C. Knowingly to cause damage to .C, A tells lies
to B. It injures C economically, socially and psychologically. Thus the act of A has been recognised by
law as a tort and named it “Injurious Falsehood”. It is also known as “Malicious Falsehood”.
EXAMPLES:
(a) A and B intend to marry. C does not want that marriage performed. He tells to D that A is a
characterless person, debaucher, drunkard, etc. He knows that A is a good man and does not have
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Unit - IV: Defamation, Negligence, Etc.
such bad characters. Though, he intentionally and maliciously tells lies to D and other public, so that
the rumors must reach to B, and she must reject the marriage. D tells C’s statement to B. B rejects
the marriage believing the false statement of C. By the act of C, A is humiliated in the society, and he
is forced to face the loss which incurs for marriage function. Here C’s act is called “Injurious
Falsehood” or “Malicious Falsehood”,
(b) A and B intend to start a big business under partnership. A invested his share towards the
business. The intended business may affect the business of C. C plans to spoil the friendship and
partnership relations between A and B. He tells D that A is not a good person, he deceived several
other persons by taking their amounts and he will definitely deceive B also after B’s investment is
received. This false statement is received by B, and he inclines to invest his share in the business
believing the statement as true. A is put to heavy loss and humiliation in the society. A is entitled to
receive damages from C, if he proves that C’s statement is false and malicious.
IMPORTANT POINTS:
A. Intention: In every malicious falsehood, the defendant
pecuniary injury to the plaintiff.
must have an intention to cause loss or
B.
DISTINCTION BETWEEN MALICIOUS FALSEHOOD AND DECEIT:
C.
Distinction between “Malicious Falsehood” and “Defamation”:
This tort is akin to wrong
of deceit. However, there is slight difference between malicious falsehood and wrong of deceit. In a
wrong of deceit, the defendant makes the false statement or plays an act directly against the plaintiff.
In a wrong of malicious falsehood, the defendant makes the false statement to a third person against
the plaintiff, i.e. he causes loss to the plaintiff indirectly.
There are some similar
points between these two wrongs: (1) Both the wrongs are intended to cause injury to the plaintiff.
(2) In both the wrongs, the defendant makes the statements to third persons.
DISTINCTION BETWEEN MALICIOUS FALSEHOOD AND DEFAMATION
MALICIOUS FALSEHOOD
1.
(SN)
DEFAMATION
In this, the plaintiffs pecuniary interest is
1.
In this, the plaintiffs reputation is affected.
affected.
2.
3.
Evil motive is an essential characterstic
feature of malicious falsehood.
2.
No such privileges are allowed.
3.
In a tort of defamation, evil motive is not
necessary.
Certain privileges are allowed to the defendant.
D. Forms of Malicious falsehood: There are two Forms
of this tort, known as (I) Slander of title;
and (ii) Slander of goods. Both of them injure the property of the plaintiff, but not affect upon the
reputation.
E.
SLANDER OF TITLE
(SN)
In this form of wro^ng, the defendant makes false and malicious statement in writing or verbal to third
person against the plaintiff. Such statement affects the title of real or personal property of the plaintiff.
In the “Slander of title” the words used by the defendant tend to disparage the extent or the nature of
the title of the plaintiff. Slander of Title is the name given to any words, whether spoken or written,
which impugn the plaintiff’s title to any property, real or personal, in possession or remainder, vested or
contingent.
Example: A is the owner of XYZ shop. A approaches C for loan to run his shop. B says to C that A is
not the owner of XYZ shop and he pledged his shop to D. In fact, there is no relation between A and D
and there is no pledge to D. C does not give loan to A on the statement of B. This statement adversely
affects upon A in business circle. If is a slander of title.
F.
SLANDER OF GOODS
(SN)
Anything uttered by the defendant to a third person describing the goods of the plaintiff as of lower
standard, defective and are not useful, such statement is a slander of goods. By such statement, the
value of the goods is depreciated and the plaintiff suffers loss of sales, and good will among the
customers.
Example: A is the kirana shop owner. B tells other that the goods of As shop are very defective and
highly priced. By B’s statement. As sales are come down. It is slander of goods.
172
The Law of Torts
4.E.
NEGLIGENT MISSTATEMENT
Q.1.
Fraud.
Q.2.
Tort of Deceit.
Q.3.
Edington vs. Fitzmaurice (1885) 29 ChD 459).
(SN) (Anl., 2011, K.U.)
Q.4.
Can mere silence be treated as a fraud?
(SN) (Anl., 2012, N.U.)
Q.5.
Kiran Bala vs. B.P. Srivastava (AIR 1982 All. 242).
(SN) (Anl., 2007, G.U.)
(SN) (Anl., 2010, M.U.) (June, 2013, A.U.)
(SN) (Feb., 2006, S.V.U.) (Anl., 2009, S.K.U.) (Anl., 2011, A.U.) (Anl., 2012, N.U.)
Q.6. # Derry vs. Peek (1889) 14 AC 337).
(SN) (May, 2005, B.U.) (Anl.; 2009, B.U.)
Q.7.
Ill-intention of the Defendant.
(SN)
Q.8.
NEGLIGENT MIS-STATEMENTS.
(SN) (Oct., 2012, O.U.)
Q.9.
# Medley Byrne and Co. Ltd. vs. Heller and Partners (1964 AC 495); (1963) 2 All E.R. 575).
(SN)
Q.10. INNOCENT MISREPRESENTATIONS.
(SN)
Q.11. Liability for Mis-statements.
(SN)
ANSWER:
NEGLIGENT MISSTATEMENT
(EQ/SN)
MEANING: “Statement” means an act of stating, reciting, or presenting verbally or on paper. “Mis
statement” means an act of stating, reciting, or presenting lies verbally or on paper. It is a false
Statement intended to deceive other party. It is fraud planned to deceive the plaintiff and cause injury to
him, or to get certain advantages for the defendant. It is a recognised tort.
Negligent Misstatement is also called as Negligent Misrepresentation or Careless Statement.
A false statement of fact made honestly but carelessly. A statement of opinion may be treated as a
statement of fact if it carries the implication that the person making it has reasonable grounds for his
opinion. A negligent misstatement is only actionable in tort if there has been breach of a duty to take
care in making the statement that has caused damage to the claimant. There is no general duty of
care in making statements, particularly in relation to statements on financial matters. Responsibility
for negligent misstatements is imposed only if they were made in circumstances that made it
reasonable to rely on them. If a negligent misstatement induces the person to whom it was made to
enter into a contract with the maker of the statement, the statement may be actionable as a term of the
contract if the parties intended it to be a term or it may give rise to damages or rescission under the
Indian Contract Act, 1872.
EXAMPLES:
(a) To certify a characterless person as a good person;
(b) To certify a building value for Rs. two lakhs, whereas its original value is one lakh only;
(c) To assert an Indian made article as that of foreign
one;
(d) To publish the false in a prospectus of a company with an intention to procure public money;
(e) To assure the bridegroom that the bride is good and beautiful, even though she is unsoundness of
mind; etc.
KINDS OF MIS-STATEMENTS: Playing mis-statements causes physical, psychological, economical
or social injury to the plaintiff. Therefore, it is recognized as a tort. There are three ways affecting upon
the plaintiff by misstatements. They are:
i.
Deceit or Fraud;
ii.
Negligent mis-statements; and
iii.
Innocent mis-representations.
I.
DECEIT or FRAUD
(SN)
A mis-statement is a deceit or fraud, if the defendant willfully plays it upon the plaintiff. It is a positive
act on the part of him. He pre-plans and designs it to make the plaintiff to believe, and thus puts him
into loss or gains advantage from him.
ESSENTIALS:
1. False statement of a fact: It is the first essential of this tort is that the defendant should make a
positive false statement of fact. Where the defendant intends to deceive the plaintiff, knowingly makes
a false statement of fact to the plaintiff, and the plaintiff believes it and suffers. It is a deceit.
Examples:
(a) A person is not a lawyer. He wears the advocate coat and gown in public places, and says that he
is an advocate. The people believe that he is an advocate, and entrust certain cases to him.
Unit - IV : Defamation, Negligence, Etc.
173
(b) Alluring the public to invest their money in the shares Of certain company, though their economical
position is not good,
(c) Certain companies print beautiful pamphlets, brochures, etc. and attract the people and accumulate
huge money, and leave the city/state/country.
Edington vs. Fitzmaurice (1885) 29 ChD 459)
(Fraud)
The defendant company was over-debited. To clear its liabilities, it released a public issue for debentures
mentioning the company’s financial position as sound and prosperous, and the funds were required
for further development. The public purchased debentures. The defendants cleared their liabilities
with that amount, instead of putting the funds for the development. One of the debenture holders
questioned in the Court. The Court gave the judgment in favour of the plaintiff opining that the defendant
company issued false statements to attract the people, and held the directors liable for fraud.
Can mere silence be treated as a fraud? When the defendant makes a positive false statement of
fact, then only it becomes fraud. Mere silence does not become a fraud. However, if there is statutory
duty to speak the truth, and the defendant remains silence, still he is held liable, even though he does
not make any statement. The contracts of uberrimae fidei are good examples for this. In a contract of
insurance, the person proposing insurance should state all the facts to the insurer. If he keeps silence,
and does not disclose any material matters, he is liable. [Refer to Topic “Uberrima fidei”\n ContractI Notes for details.]
Remaining with mere silence is also treated as a deceit in certain relations.
Examples (a): A, a woman of unsoundness of mind, marries B. B gets divorce on that ground. After
divorce, A contracts C for marriage. Neither A nor her parents do not reveal the fact of her state of
unsoundness of mind to C. It is a fraud. (Klran Bala vs. B.P. Srlvastava (AIR 1982 All. 242).
(b) A makes a statement to B believing that it is true. Later A discovers that such statement is false.
It is the duty of A to disclose that to B. If he does not disclose it to B, he is liable for deceit, even though
he remains with silence.
Where a person makes half truth and half false, or half truth and knowingly remains silent for the
remaining, he is held liable for the remaining false. Active concealment of the truths is also considered
as a fraud, and the defendant is held liable.
B. Defendant’s knowledge about the falsity: The second essential thing of mis-statement to
deceive is that the defendant must have the knowledge of falsity of the statement,or he does not
believe in its truth. If he has no knowledge, or if he believes the statement to be true in good faith, he is
not liable.
# Derry vs. Peek (1889) 14 AC 337)
(Fraud)
Brief Facts: The defendants were the directors of a
tramways company, whose tramways were run
by animal power. The technical knowledge of steam power was introduced newly at that time. The
defendants planned to introduce steam power system, for which huge money was required. They
obtained the permission to use the steam power from the Governrnent. They had to obtain consent
from the Board of Trade. The defendants honestly thought that as they got the permission from the
Government, they would get consent from the Board of Trade, which was a mere formality. They
applied the Board of Trade for their consent, enclosing the permission letter issued by the Government.
The defendants thought that consent would be granted automatically. Meanwhile they offered their
company shares to the public, mentioning the fact that they got the permission from the Government.
However, the Board of Trade did not grant the permission to the defendants. As a result, the company
was wound up. The plaintiff was one of the purchasers of shares basing upon the prospectus. He
sued the defendants/directors alleging that they knowingly suppressed the fact that they did not get the
consent from the Board of Trade.
JUDGMENT: The House of Lords gave the judgment in favour of the defendants, opining that the
defendants/directors honestly believed in their statement, and they honestly trusted that the permission
from the Government would yield the consent of the Board of Trade automatically and they honestly
believed that such consent was only mere formality. They also opined that the statement of the
defendants was a mere negligent mis-statement without intention to deceive the public. Therefore,
the defendants were not held liable.
Principles laid down: While disposing the above case. Lord Herschell stated: “In order to sustain
an action of deceit, there must be proof of fraud, and nothing short of that will suffice... fraud is proved
when it is shown that a false representation has been made (1) knowingly, or (2) without belief in its
174
The Law of Torts
truth, or (3) recklessly, carelessly whether It is true or false. Although I have treated the second and
third as distinct cases, I think the third is but an instance of the second, for one who makes a statement
under such circumstances can have no real belief in the truth of what he states. To prevent a false
statement being fraudulent, there must I think, always be an honest belief in
its truth. ”
3. Ill-intention of the defendant: There must be ill-intention in the defendant to cause injury or
damage to the plaintiff.
4. Plaintiff’s reliance: The Fourth essential element is that on receipt of the false statement, the
plaintiff must rely pn it. If the plaintiff knows that is a false statement, still he invites the sufferance, the
defendant is not held liable according to volenti non fit injuria. It is the important thing to note that the
plaintiff, if relies on the misstatement of the defendant, and suffers damage, the defendant is held
liable.
5. Damage: The plaintiff has to prove how and how much damage he suffered by the mis-statement
of the defendant. The burden of proof lies upon the plaintiff.
II.
NEGLIGENT MIS-STATEMENTS
(SN)
MEANING: Fraud or deceit is a deceitful practice or willful device resorted by the defendant to deprive
plaintiff s right, or in some manner to do an injury to the plaintiff, or to get some advantage for him. It ISi:
always positive. The intention of the wrong-doer is reflected in his misstatement to do fraud. In a
fraud, what is done designedly and knowingly, the wrong-doer plans it before to act. In negligent
misstatements, the wrong-doer has no purpose to do a wrongful act, or to omit the performance of a
duty. There is no plan or intention to make such negligent misstatements. It is always negative.
Example: The case-law Derry vs. Peek is a good example for negligent misstatement. In this case,
the directors/defendants made statements in the prospectus that they got the permission from the
Government. They neglected to mention the fact that they applied for consent from Board of Trade,
and such consent was to be obtained. They negligently omitted this fact. However, the House of
Lords held that it was a mere negligent misstatement, and there was no deceitful plan from the
defendants to deceive the public. They honestly believed what they did and stated the same in the
prospectus, for which they were not held liable.
# Medley Byrne and Co. Ltd. vs. Heller and Partners (1964 A.C. 495); (1963) 2 All E.R. 575)
(Negligent Mis-Statements)
Brief Facts: The plaintiffs were advertising agents. Easipower Ltd. was one of their customers proposed
to have advertising contracts with the plaintiffs. The defendants were the bankers. Easipower Ltd.
was having banking relations with the defendants. The plaintiffs wrote a letter to the defendant-bankers
requesting to enquire and inform the trustworthy of Easipower Ltd. to an extent of one lakh pounds per
year. The plaintiffs also informed the bankers the purpose to establish the business relations with
Easipower Ltd. The defendants replied that Easipower Ltd. was a trustworthy party for one lakh
pounds, and it was a respectably constituted company, considered good for its ordinary business
engagements. They also concluded the letter giving the meaning that letter was issued for the plaintiff’s
private use and without responsibility on the part of that bank or its officials. The plaintiffs relied the
statement of the defendants, and concluded the contracts with Easipower Ltd., and had business
relations, and spent huge amounts. Some months later, Easipower Ltd. was liquidated. As a result,
the plaintiffs were put into a loss of 17.000 pounds. The plaintiffs sued the defendants alleging that
basing upon the misstatement of the banker, they were compelled to face the loss. They also contended
that it was a breach of duty on the part of the bankers. The bankers/defendants pleaded that there was
no responsibility on their part basing upon the concluding
part of the letter.
JUDGMENT: The House of Lords held that the letter of the bankers/defendants was a negligent
misstatement. They opined that it was the duty of the bankers/defendants to take care before making
any such statement which involved huge financial matters. They also opined that the defendants
neglected their duty, and therefore the defendants were
held liable.
Principle: Lord Morris explained the principle: "If someone possessed of a special skill undertakes,
quite irrespective of contract, to apply that skill, for the assistance of another person who relies on
such skill a duty of care will arise. The fact that the service is to be given by means of, or by the
instrumentality of words can make no difference. Furthermore, if, in a sphere in which a person is so
placed that others could reasonably rely on his Judgment or his skill or on his ability to make careful
inquiry, a person takes it on himself to give information or advice to, or allows his information or advice
to be passed on to, another person who, as he knows or should know, will place reliance on it then a
duty of care will arise.”
Unit - IV : Defamation, Negligence, Etc.
INNOCENT MISREPRESENTATIONS
175
(SN)
MEANING:
Where a person makes a mis-statement innocently, it is called innocent
misrepresentation”. If the person making such innocent misrepresentation has no intention to deceive,
the plaintiff, or has not designed or pre-planned, he is not liable for fraud or negligence. The person
making any misstatement intentionally or negligently is held liable.
4.F.
PASSING OFF
Q.l.
Define the Tort of “Passing off’, and explain the various modes by which the Tort can be committed.
Q.2.
Distinguish “Passing off’ from “Deceit”.
Q.3.
Passing Off.
Q.4.
Passing Off vs. Trade Marks.
(SN)
Q.5.
Essentials of Passing Off.
(SN)
Q.6.
DiSTiNCTiON BETWEEN PASSING OFF AND DECEIT/FRAUD.
(SN)
Q.7.
Ellora Industries vs. Banarsi Dass (AIR 1980 Delhi 254).
(SN)
(Apr., 2002, O.U.)
(SN) (June, 2001, M.U.)
ANSWER:
PASSING OFF
(EQ/SN)
MEANING: A trader knowingly or unknowingly allows his own goods on the name of other reputed
firms. Thus the goods are passed off from the trader to customer. It is called “Passing off the
goods”. It affects the good-will, sales of the reputed firms whose name is used in passing the goods.
In common law countries such as the United Kingdom, Australia and New Zealand, passing off is
a common law tort which can be used to enforce unregistered trademark rights. The tort of passing
off protects the goodwill of a trader from a misrepresentation. The law of passing off prevents one
trader from misrepresenting goods or services as being the goods and services of another, and also
prevents a trader from holding out his or her goods or services as having some association or connection
with another when this is not true.
Example: A conies to B’s shop to purchase a Philips TV. B sells a TV. to A, a locally assembled and
labelled as Philips. With a good faith on B, A purchases the TV. from B. Some days after, or sometime
after, A recognises that the TV. is not original Philips, and it is another brand. B is liable under the tort
of “Passing off”. Underthe tort of passing off. Philips Company is the aggrieved party, and it can sue
B for damages and for injury to its trade mark and patent rights. By passing a low quality commodity
in place of reputed brand, B does a wrongful act. It adversely affects on the minds of the customer’s
satisfaction, and also it injures the reputation of that reputed brand, it also decreases the sales of the
reputed brands.
OBJECT: The object in recognizing the passing off goods as a tort is to protect the good-will of
business concerns. There are several provisions enacted in various statutes, viz. the Indian Partnership
Act, 1932; the Trade & MerchandizeAct; Patents Act; M.R.T.P.; the Companies Act, 1956; etc. restricting
the mis-use of brand name, company’s name, good will of the products and companies, etc. There
are also criminal and civil liabilities imposed by the law upon the violators. Besides these remedies,
passing off has been recognized as a tort and as a complimentary to those Statutes. Therefore, no
trader is entitled to use other companies’ brand names, product names, good will, etc. to sell his own
products.
Passing off vs. Trade Marks: A cause of action for passing off is a form of intellectual
property enforcement against the unauthorised use of a mark which is considered to be similar to
another party’s registered or unregistered trademarks, particularly where an action for trademark
infringement based on a registered trade mark is unlikely to be successful (due to the differences
between the registered trademark and the unregistered mark). Passing off is a form of common law,
whereas statutory law such as the United Kingdom Trade Marks Act 1994 provides for enforcement
of registered trademarks through infringement proceedings.
Passing off and the law of registered trademarks deal with overlapping factual situations, but deal with
them in different ways. Passing off does not confer monopoly rights to any names, marks, get-up or
other indicia. It does not recognize them as property in its own right.
Instead, the law of passing off is designed to prevent misrepresentation in the course of trade to the
public, for example, that there is some sort of association between the businesses of two traders.
One early example of Its application by the United Kingdom Intellectual Property Office can be found in
a Trade Mark Opposition Decision in 2001. It was held that two brands of confectionery both named
“Refreshers”, one made by Swizzels Matlow and one by Trebor Bassett, which had coexisted since
176
The Law of Torts
the 1930s, would deceive a consumer as to their source for some items but not for others.
Both
coexist in the marketplace.
IMPORTANT POINTS:
A
ESSENTIALS
(1) To increase his own sales, if the trader adopts deceptive devices and makes the customer to
believe the goods are some other reputed person or company, it is a tort of passing off.
(2) There must be clear distinction between the goods of the defendant and the plaintiffs goods.
(3) The defendant must have used some tricks against the customer causing confusion and injury,
and at the same time he injured the plaintiff by using his good will or his brand name.
(4) Even though the defendant used the good-will of the plaintiff without any malice or ill-intention, he
is held liable under this tort.
B.
DISTINCTION BETWEEN PASSING OFF AND DECEIT / FRAUD
PASSING OFF
1.
2.
In this tort, the defendant does not play
deception or fraud against the plaintiff directly.
He uses some deceptive devices or tricks
against the customer a third party.
In passing off, the proprietory rights of the
DECEIT/FRAUD
1.
2.
plaintiff are affected.
3.
4.
In this tort, deception or fraud is palyed by the
defendant against the palintiff directly.
In deceit or fraud, the plaintiff is put into loss
in
all kinds of human life.
In passing off, the plaintiff can claim damages
as well as he can bring an action against the
defendant to protect his proprietary rights, viz,
good-will or business.
It is actionable perse, i.e. actionable without
3.
The plaintiff can claim only compensation for
the wrong of deceit or fraud by which he was
deceived and was put into loss.
4.
The plaintiff can institute a proceeding against
the defendant, if he actually suffered loss or
sustained injury.
5.
The tort of deceit or fraud is independent
proof of damages. Even though, the plaintiff
did not suffer any loss by the act of the
defendant, still the plaintiff has a right to sue
the defendant for the violation of his rights and
breach of the trade and merchandise law and
other laws.
5.
The tort of passing off is a complimentary to
the Trade and Merchandise Act and other
offence under criminal law.
laws.
6.
The of passing off can be played on a good-will
or business.
6.
The tort of deceit or fraud can be played in any
every walk of human life, including business.
C. While disposing “Ellora Industries vs. Banarsi Dass (AIR 1980 Delhi 254)” case, the Delhi
High Court observed: “The purpose of the tort of passing off is to protect commercial good-will; to
ensure that the people’s business reputation are not expioited. Since business “good-wUTis an asset,
and therefore species ofproperty the law protects it against encroachment as such. The tort is based
on economic policy, the need to encourage enterprise and ensure commerciai stability. It secures a
reasonable area of monopoly to traders. It is thus complimentary to trade mark which is founded on
statute rather than common law. But there Is a difference between statute law relating to trademarks
and the passing off action; for, while registration of relevant mark, itself gives title to the registered
owner, the onus in a passing off action lies upon the plaintiff to establish the existence of business
reputation which he seeks to protect. The asset protected is the reputation, the plaintiff’s business;
whether real or adopted, the mark, design, make-up or colour of the plaintiff’s goods, the distinctive
characteristics of services he supplies or the nature of his special processes. And it is around
encroachments upon such indicia that passing off actions anse. What is protected is an economic
asset.’’
l"Gade Veera Reddy
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177
Unit - IV : Defamation, Negligence, Etc.
CONSPIRACY ■ DISTINCTION BETWEEN
4.G.
CRIMINAL CONSPIRACY AND TORTUOUS CONSPIRACY
Q.l.
Explain the tort of conspiracy referring to decided
Q.2.
Explain the brief facts and principles laid down in Crofter Hand Woven Harris Tweed Co. Ltd. vs. Veitch Case.
Q.3.
Conspiracy in Tort.
Q.4.
DISTINCTION BETWEEN CRIMINAL CONSPIRACY AND TORTUOUS CONSPIRACY.
(SN)
Q.5.
Crofter Hand Woven Harris Tweed Co. Ltd. vs. Veiich (1942 AC 435).
(SN)
cases.
(SN)
(SN) (June, 2010, O.U.)
ANSWER:
CONSPIRACY - DISTINCTION BETWEEN CRIMINAL CONSPIRACY
AND TORTUOUS CONSPIRACY
(EQ/SNs)
MEANING: When two or more persons agreed to commit an act causing injury or harm to the plaintiffs
property or business by unlawful means is called “Tortuous Conspiracy.”
ESSENTIALS:
1. Combination: There must be two or more persons accumulated against the interests of the
plaintiff.
2. Prior plan: They must have planned to cause harm to the plaintiffs property or business.
3.
DISTINCTION BETWEEN CRIMINAL CONSPIRACY AND TORTUOUS
CONSPIRACY
(SN)
Section 120-A of the Indian Penal Code defines Criminal
Conspiracy: “When two or more persons
agree to do or cause to be done — (i) an illegal act o,r (ii) an act which is not illegal by illegal means,
such an agreement is designated as a criminal conspiracy.” In Criminal Conspiracy, there is no
necessary that the act agreed should have been performed. It is sufficient to establish for prosecution
that the wrong-doers agreed and designed an illegal act, for which the law imposes punishment. In
tortuous conspiracy, mere design or agreement is not sufficient. Such agreement should have been
implemented, and by that implementation, the plaintiff should have been suffered some damage.
4. Damnum sine injuria: Where two or more persons combined plan to ruin the plaintiff in commercial
trade, and for such purpose, they adopt the lawful means, and thus cause loss to the plaintiff. It is not
a conspiracy under the principle of “Damnum sine injuria. ” [Refer to Topic “Meaning and Definition
of “Tort”.]
5. Self-interest: Where in a trade, two or more persons combined act and improve their business
adopting the legal means for their self-interest, but not intended to damage any person and particularly
the plaintiff, it is not a conspiracy. The plaintiff must prove that they acted against his trade illegally.
6. Intention: There must be intention, design and preparation on the part of the conspirators to cause
economic loss to the plaintiff. To achieve their target, if they adopt the means without lawful justification,
they can be treated as conspirators. Even though their intention is to cause loss to the plaintiff, but
they adopt the legal means to do so, they cannot be treated as conspirators. This principle is laid down
in the following case-law.
Crofter Hand Woven Harris Tweed Co. Ltd. vs. Veiich (1942 AC 435)
(Tortuous / Criminal Conspiracy)
Brief Facts: In the Isle of Lewis, some mills were producing Harris Tweed from yarn handspun from
wool by the crofters of Lewis. Some other mill-owners in the Isle of Lewis were importing yarn from
the mainland. Importing yarn was cheaper than the locally manufactured yarn. Thus cloth woven from
imported yarn was sold much more cheaply than cloth made from local yarn spun in Lewis. The
defendants were a Trade Union. 90 Per cent of the workers working in the Mills were the members of
the Transport and General Workers’ Union. Dockers of the Isle of Lewis were also members of that
Union. The Union demanded the mill-owners to increase their wages. The Mill-owners who depended
upon the local yarn refused to pay the enhancement of wages alleging that due to bad competition
from the mill-owners who were importing yarn and were selling the cloth at lower rates than their rates.
The Union officials understood the problem and incapacity of the mill-owners, who were depended
upon the local yarn, and also unhealthy competition between them. They thought to stop the importation
of yam, so that the mill-owners depended on the local yam can give sustainable and suitable employment
and also the enhanced wages. To achieve this object, they immediately put an embargo on the
importation of yarn by ordering the Dockers not to handle the imported yarn. Dockers, being they were
also the members of the Union, obeyed the instructions of the Union without breaking any contract.
This effected on the mill-owners who were importing the yarn. These producers sued the Union
Officials alleging that the union officials conspired with the mill owners depended upon local yarn and
178
The Law of Torts
intervention with their business, and caused heavy loss to them, and claimed damages. The Union
Leaders argued that their object was to survive their livelihood, and to get the enhanced wages, but not
to injure the plaintiffs.
JUDGMENT: The House of Lords gave the judgment in favour of the defendants, holding that there
was no conspiracy between the mill-owners depended upon local yarn and the trade union leader.
Principles lay down: 1. Where two or more persons combined and willfully do an act causing
damage to the plaintiff’s business or trade by unlawful means is a conspiracy.
2. Where two or more persons combined do an act with an utmost desire to protect their lawful
interests, and there is no other way for them to safeguard their interests, and it is highly impossible
without doing that act (even though they know that their act could cause injury to the plaintiff) their
interests will not be protected, is not a conspiracy.
4.H.
TORTS AFFECTING FAMILY RELATIONS
Q.l. What are the torts that affect family relations?
(Oct.. 2012, O.U.)
Q.2.
Comment upon the liability of husband for the torts of his wife in England before and after 1962.
Q.3.
Broom vs. Morgan (1953) 1 Q.B. 597).
(EQ/sn;
(SN)
Q.4. The Law Reform (Husband and Wife) Act, 1962 (England).
(SN)
Q.5.
Comment upon the liability of husband for the torts of his wife in India before and after Independence and Constitution. (EQ/SN)
Q.6.
Torts against Wives.
Q.7.
Marital Rights.
Q.8.
Domestic Rights.
Q.9.
The ‘Dowry Prohibition Act, 1961’.
(SN) (Jan., 2007, Burd. U.)
(SN) (May, 2006, B.U.)
(SN) (Sept., 2013, O.U.)
(SN)
Q.10. Define “Dowry Death” and “Dowry Suicides”.
(SN)
Q.11. MATRIMONIAL CRUELTY [S. 498-A, THE INDIAN PENDAL CODE, I860].
(SN)
Q.12. THE DOMESTIC VIOLENCE ACT, 2005.
(SN)
Q.l 3. TORTS AGAINST HUSBANDS.
(SN)
Q.14. MAINTENANCE OF PARENTS.
(SN)
Q.l5. Section 125 of the Cr.P.C.
(SN)
Q.16. The Maintenance of Welfare of Parents and Senior Citizens Act, 2007.
Q.l 7. PROTECTION OF CHILDREN.
(SN)
(SN)
ANSWER:
TORTS AFFECTING FAMILY RELATIONS
(EQ/SN)
IN ENGLAND: (Up to 1962): According to the Common Law, “Husband and wife are one in the eye
of law”. Neither the spouse was allowed to sue the other spouse for tortuous liability. The Married
Women’s Property Act, 1882 empowered the married woman to sue any person including her husband
for the protection and security of her property. However she was not entitled to sue her husband for
the tortuous acts, even if he broke her leg. The Common Law made married woman as a subordinate
to her husband. If her husband acted as an agentfor others, and during the period of agency, if he had
committed any injury to his wife, then the wife could sue the principal and the agent for compensation.
Broom vs. Morgan (1953) 1 Q.B. 597)
(Torts - Family Relations)
The plaintiff was the wife. The defendant was her mother-in-law. The defendant engaged the plaintiff’s
husband, i.e. her own son as a driver for her own car. While driving the car, the husband did accident
to his wife. The plaintiff-wife sued her mother-in-law and her husband as principal and agent., The
Court allowed her petition and ordered for compensation.
After 1962: However, this position has been changed now by the Law Reform (Husband and Wife)
Act, 1962. Now, either the spouse can sue the other spouse for the tortuous liability.
IN INDIA
BEFORE THE INDEPENDENCE: In India, different religious people are residing, viz., Hindus,
Buddhists, Sikhs, Jains and Muslims. All of them are governed by their personal laws, and not by the
Common Law. However, in all the religions, the wives were treated with the secondary grade. If the
husbands and their relatives did any criminal or tortuous acts, the wives were not in a position to revolt.
No legal and social remedies were available to the then aggrieved woman.
Unit - IV ; Defamation, Negligence, Etc.
179
AFTER THE INDEPENDENCE: After the independence, and particularly after the emerging the
Constitution of India, 1957, the woman’s position has been changing gradually. The world-wide
changes are also affecting India. The Indian Parliament has been enacting several statutes for protecting
the women in India. Now the married woman can sue her husband for contractual and tortuous
liabilities. Similarly, the husband also can sue his wife for contractual and tortuous liabilities. All the
personal laws in India permit the aggrieved party to sue the other spouse for tortuous liabilities.
Constitution of India also gives the equal rights to all, including wife and husband. In the eye of the Law,
in India, husband and wife are not one. Therefore, marriage does not affect on the rights and liabilities
of the wife and husband. The married woman can sue her husband if her husband does any tortuous
acts. Similarly, the husband can sue his wife, if she does any tortuous acts. If any third person commits
tort against the married woman, she can sue him without joining her husband, and without seeking her
husband’s permission. Similarly, if any third person commits tort against the husband, he can sue him
without joining his wife. If a married woman commits tort against any third person, that third person
can sue the married woman without joining her husband. Similarly, if a husband commits tort against
any third person, he can sue the husband without joining his wife. What was the position of women in
India after the independence?
INTRODUCTION: ‘Marriage’ and ‘Family’ are the basic social institutions. The joint families have
already extinguished to the minimum level. In Western countries, there are only small families consisting
spouses and one or two children. This is a small unit. The Indian circumstances are somewhat better
than the western culture. Still we honour our parents. Still there are cordial relations between the
brothers and sisters; parents and children. However, due to modernisation urbanisation, private market
economy, etc. disturbances between the spouses, disputes between the parents and children have
become very common.
TORTS AGAINST WIVES
(SN)
There are torts committed by husbands against wives all over the world. In India, it is seen in excess,
beyond the limits. ‘Dowry’ plays an important role in harassing the house-wives in India. There is the
‘Dowry Prohibition Act, 1961’, but is in vain. The rate of dowry deaths and dowry harassments has
been increasing day-by-day. Demanding dowry is recognised as ‘cruelty’ in Shobha Rani vs.
Madhukar Reddy (AIR 1988 SC 121). (It is a prescribed case-law for O.U. students.)
No doubt, the Constitution, Indian Penal Code, Dowry Prohibition Act, marriage laws, etc. have provided
certain safeguarding provisions to the women. Due to the agricultural country having poor economy
and illiteracy, all these provisions have become in vain.
SCORE OF DOWRY DEATHS: Dowry Deaths and Dowry Suicides are very shameful to our India.
The score of such deaths has been increasing year to year, crossing regional boundaries, climbed
down the caste and religious ladder. The reported figure of dowry deaths and suicides in 1989 was
4006. This figure went up to 4,800 in 1990. There may be several thousands of unreported deaths.
PRESUMPTION: According to the provisions of Section 304-B, the law presumes that if a wife, within
seven years of her marriage, dies other than the natural death, she was killed by her husband or his
relatives in connection with squeezing dowry.’
Section 113-B of the said Act presumes the dowry death. Section 113-B as inserted in the Evidence
Act, 1872 by Act No. 43 of 1986 to prevent the dowry deaths.
DOWRY SUICIDES
(SN)
Section 304-B directly deals with “Dowry Deaths.” In certain other occasions, the husband or his
relatives will not commit dowry deaths directly, but ill-treat the wife, torture her demanding dowry, and
directly or indirectly force her to commit suicide.
MATRIMONIAL CRUELTY [S. 498-A, THE INDIAN PENDAL CODE, 1860]
(SN)
When a wife is unable to bring dowry from her parents due to poor economical circumstances, she
decides to end her life. In that circumstance, her death can come under Section 498-A. Section 498A of the Indian Penal Code, 1860 explains the “Matrimonial Cruelty” i.e. the cruelty of husband and
his relatives on the wife, and imposes punishment on husband or relative of husband who tortured the
wife cruelly and forced her to commit suicide. Further Section 113-Aof the Indian Evidence Act, 1872
presumes that a woman committed suicide within seven years of her marriage; it was due to the illtreatment and cruelty of the husband or his relatives.
The Indian Penal Code, 1860: Sec. 498-A. Husband or relative of husband of a woman subjecting
her to cruelty.— Whoever, being the husband or the relative of the husband of a woman, subjects
such woman to cruelty shall be punished with imprisonment for a term which may extend to three
years and shall also be liable to fine.
180
The Law of Torts
Explanation: For the purposes of this section, “Cruelty”
means,—
(a) any willful conduct which is of such a nature as likely to drive the woman to commit suicide or to
cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b)
harassment of the woman where such harassment is with a view to coercing her or any person
related to her to meet any unlawful demand for any property or valuable security or is on account of
failure by her or any person related to her to meet such demand.
OBJECT: Section 498-A was inserted in the Indian Penal Code by the Criminal Law (Amendment)
Act, 1983 (Act No. 46 of 1983) to prevent the menace of cruelty on wives and dowry suicides. By the
same Act Section 113-Ahas been added to the Indian Evidence Act which raises the presumption
regarding abetment of suicide by a married woman. Sections 304-B, 498-A of the Code and 113-Aand
113-B of Evidence Act are woven by the framers having connections with each other, so that the
accused should not escape from the eye of the law. Even though Sections 498-A and 304-B create
distinct offences, “cruelty” is the common element to both. A person charged under Section 304-B
can also be convicted under Section 498-A with-out any charge under that Section.
The latest position is that Section 498-A has become a powerful weapon in the hands of the wives.
Some of the wives have been misusing Section 498-A to harass and torture husbands and their relatives.
Particularly the husband’s relatives residing in the foreign countries are also included in the accused
list and are compelled to appear in the Indian Courts. The Supreme Court of India and several High
Courts have criticized such wives. Recently, the Supreme Court of India has passed certain rulings to
the police authorities not to harass husbands and their relatives in Matrimonial Cruelty cases.
THE DOMESTIC VIOLENCE ACT, 2005
(SN)
The Domestic Violence Act, 2005 is enacted by the Indian Parliament to protect the women particularly
the wives.
TORTS AGAINST HUSBANDS
(SN)
There is no doubt that a considerable number of wives
in India are being tortured by their husbands
and their relatives in India. Forthe aggrieved Hindu wives, several new statutes and new legal provisions
in the existing statutes have already been incorporated to protect the Hindu wives.
In spite of this fact, there are also several incidents of torts suffered by the husbands by the wives,
especially among the Hindu religion.
One of the opinions of the Jurisprudents in India is that the latest legislation on Hindu religion mostly
favour the Hindu wives, and has been suppressing the Hindu husbands. There are several provisions
in law, which are most favourable to Hindu wives. Some of the Hindu wives have been misutilising
these Provisions, and harassing their husbands.
For example. Section 112 of the Indian Evidence Act, 1872 is raising several basic problems. According
to this section, if A, wife of B elopes with C and lives with C for some years and gives birth to D. After
the disputes arises between A and C, A returns to the house of B. If B refuses her as his wife, A files
criminal proceedings against B under Section 498-A of the Indian Penal Code, 1860, or sues B for
maintenance. B contends that A eloped with C and gave birth to D, and that D is not his (B’s) legitimate
son. According to Sec. 112 of the Evidence Act, the burden of proof lies on B (not on A) to prove that
B had not sexually intercourse with A, during the 280 days up to the birth of D. How can it be proved?
Is it possible?
Of course, there are new technologies evolved, like DNAtest, blood test, etc., which are applied in
western countries. If B prays the Court to conduct DNA test, the Indian Courts don’t permit to do so.
The Supreme Court gave judgment that DNAtest to determine the legitimacy of a child would mark
that boy as ‘bastard’ and he would become destitute. Then what is the position of B? The Supreme
Court didn’t clarify it so far. However, the sociological and legal problems are causing much harassment
to the husbands like B.
In the above example, the marriage between A and B still subsists, ever though A returns to her
matrimonial house after five or six years. B is first suffered by the humiliation of the society, and then
by the iegal position. This is a peculiar situation found in India. This position is not found in any
jurisprudence all over the world. B cannot deny re-entry of A and As illegitimate children at this present
legal position.
Having illicit contracts by one of the spouses leads disturbance in the family life. There are
several other reasons causing disturbances in the family life. A considerable number of wives harass
their husbands by spoken words. Refer to Dastane vs. Dastane case in Family Law -I (Hindu Law).
In that case. Dr. Dastane was harassed by his wife. She tortured him by criticising him, and her
conduct against him. The Supreme Court in that case held that the words are more effective than
knife stabbing, and held that the words spoken by Mrs. Dastane would amount to ‘cruelty’.
Unit - IV : Defamation, Negligence, Etc.
181
No doubt, due to matrimonial cruelty the number of house-wives committing suicides is increasing in
India year-by-year. At the same time, it is also to be considered that, due to wives’ harassment the
number of husbands committing suicides, even though such percentage is lesser than wives, is also
increasing year-by-year. We can find this by collecting the information from the newspapers.
The above mentioned circumstances are only a few incidents of torts affecting family relations.
Sometimes, the disputes between wives and husbands lead to murders and suicide. Due to the
clashes between the wife and husband, their children are the badly affected person. In some occasions,
In some occasions, the vexed wife kills her
children and commits suicide. Example: Due to disputes between him and his wife, Asst. Prof.
the vexed husband kills his children and commits suicide.
Guruprasad, Hyderabad killed his two sons and committed suicide in October, 2014.
MAINTENANCE OF PARENTS
(SN)
In Indian culture the children love and respect their parents. But now the position is different due to the
increasing selfishness. The majority of children in youth and in earning capacity are barely neglecting
their age old parents. The position of age old parents is miserable.
Section 125 of Cr.PC. provides the legal remedy to helpless age old parents to claim maintenance
from their sons having earning capacity, but what about love and affection? It is a million dollar question.
For the maintenance of the old parents, the Indian
of Parents and Senior Citizens Act, 2007.
Parliament enacted the Maintenance of Welfare
There are news come in the newspapers and t.vs. that some of the sons and daughters torture their
parents for properties. Some of the sons and daughters pushed their age-old and diseased parents
mercilessly. Some of the sons and daughters do not give even one time meals to their parents. They
used to abuse their parents in filthy language.
PROTECTION OF CHILDREN
The Constitution of India has provided several provisions for the protection and education of children.
Under the spirit and guidelines of the Constitution several Acts have been enacted by the Indian
Parliament. The object of Lhe Constitution and ali these Acts is to prevent criminal and tortuous atrocities
against the children In the home, schools and society.
1.
Right of Children to Free and Compulsory Education Act, 2009.
2.
Prohibition of Child Marriage Act, 2006.
3.
Protection of Children from Sexual Offences Act, 2012.
4.
Child Marriage Restraint Act, 1929.
5.
Child Labour (Prohibition and Regulation) Act, 1986.
6.
Pre-conception and Pre-Natal Diagnostic Techniques ..Act, 1994, etc.
GADE VEERA REDDY, b.Sc., ll.b., m.a.
S.M.H. QADRI, B. Sc., m.b.a., m.a., ll.m., p.g.p.ivi.i.r.
& l.w.
DICTIONARY OF LAW
(English - English - Urdu)
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(approximately) in English-Engiish-Urdu. It is very useful for Law Students, Urdu knowing.
The Legal Maxims, phrases, terms, etc. are explained in English and Urdu. It contains updated
information on all important areas of the Indian Law & other Laws. The Provisions of the Acts
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DICTIONARY OF LAW
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182
The Law of Torts
UNIT-IV
DEFAMATION, NEGLIGENCE. ETC.
I
SHORT/MINI QUESTIONS AND FILL UP THE BLANKS ARE USEFUL
I
EXAMINATIONS OF LL.B., B.A. LL.B., B.B.A. LL.B.,
I
FOR THE INTERNAL ~!
B.Com. LL.B., B.Sc. LL.B.
EXAMINATIONS. THESE ARE ALSO VERY MUCH USEFUL FOR
THE BAR COUNCIL
I ENROLMENT ELIGIBILITY TEST, PUBLIC PROSECUTORS’ TEST,
JUDICIAL
I EXAMINATIONS, AND OTHER COMPETITIVE EXAMINATIONS.
I SHORT/MINI QUESTIONS AND FILL UP THE BLANKS WILL ALSO HELPFUL TO
I STUDENTS FOR REFRESHING ENTIRE SUBJECT IN THE EXAMINATION HALL
I
TO GET HIGHEST MARKS.
THE
I
AND
I
I BEFORE THE EXAMINATION DATE, YOU MUST REFRESH YOUR MEMORY BY READING
I
AND REFRESHING THE SHORT/MINI QUESTIONS AND FILL UP THE BLANKS OF EACH 1
SUBJECT SHOULD BE IN YOUR MEMORY AND GRIP.
I
4.A.
4.A.(i).
1.
DEFAMATION
LIBEL AND SLANDER
2.
What is the meaning of ‘Libel’?
What is the meaning of ‘Slander’?
3.
The plaIntiff-Natasha was a Russian princess. The defendants, film producers and distributors
produced a film “Rasputin, the Mad Monk”. In the said
picture, it was screened that the
princess had been seduced by Rasputin, a villain character. The plaintiff sued the defendants
alleging that her character was badly screened and she suffered defamation What was the
judgment of the Court?
4.
5.
According to the English law, libel is a crime, but slander is
What is the position of libel and slander in the Indian Law?
4.A.(ii).
a
DEFAMATION
6.
What is the meaning of ‘Defamation’?
7.
What is the meaning of ‘Defamatory’?
What is the definition of ‘Defamation’ as given in Tomlins Law Dictionary?
8.
9.
What is the definition of ‘Defamation’ as given by Winfield?
10. Define of ‘Defamation’ as given in The Indian Penal Code, 1860 (Section 499).
11. In a speech at a public meeting. A, a Member of the Lok Sabha, makes a defamatory remark
about B, who is also a Member of the Lok Sabha. Can
B sue A?
12. In an election meeting, the plaintiff called the defendant *a mdyanda suspecT, and the defendant
also called plaintiff as ’‘drunkard”. There was a personal and political rivalry between the plaintiff
and defendant before the elections. After the elections were completed, the defendant repeated
Dis^°s'f
^ drunkard. The plaintiff sued the defendant for defamation.
13. What are the kinds of defamation?
14. A wrote letters to the husband of B in which he alleged that B was a witch and had by her sorcery
caused death or relation of A. Has A committed any offence?
15. A publishes a news item In his paperthat Mr. X married Ms. Y. But X was already married. X's
Wife sued A for defamation. Expiain the case and state whether A is liable for defamation.
16. In Newstead vs. London Express Newspapers Ltd.
(1939) 4 All ER 319), the defendants
published an article stating that “Harold Newstead, a Camberwell man” had been convicted for
bigamy. The story was true of Harold Newstead, a Camberwell barman. The action for defamation
was brought by another Haroid Newstead. a Camberwell barber.
Unit - IV: Defamation, Negligence, Etc.
17.
Can a suit be filed against a partnership for defamation?
18.
Can a suit be filed against a deceased person for defamation?
19.
Can a suit be filed against a class of persons for
183
defamation?
•20-
4.A.(iii).
INNUENDO
20.
What is the meaning of Innuendo?
21.
Give few examples of Innuendo?
22.
The defendant was a firm of chocolate manufacturers.
The plaintiff was an amateur golf
champion. The defendants published a caricature of the plaintiff with a pocket of their chocolate
protruding from his pocket, as an advertisement of their goods. The plaintiff had not consented
to the said advertisement, and also he did not take any remuneration for it. Further, he did not
eat the defendant's chocolate. He alleged that by the advertisement he had suffered in his
credit and reputation.
23.
X, a cartoonist drew caricature resembling a politician and showed that the said politician was
involved in a liquor scam. What wrong was, if any, committed by X? What is his liability?
24.
In Cassidy vs. Daily Mirror Newspapers Ltd. (1929)2 KB 231), Mrs. Cassidy was the plaintiff.
The defendants were newspaper management. Mrs. Cassidy resided in a flat. Mr. Cassidy
used to visit Mrs. Cassidy rarely. Mr. Cassidy was also known as Corrigan. He gained notoriety
in racing circles and in indiscriminate relations with women. At a race meeting, he was
accompanied with a lady, and both of them posed to a race photographer. He also told to the
photographer that he was going to marry that lady. This news was published by the Defendants’
newspaper along with the photograph of Mr. Cassidy and that lady and wrote: “Mr. M. Corrigan,
the race-horse owner and Miss X, whose engagement has been announced.” Mrs. Cassidy @
Mrs. Corrigan sued the defendants for the defamation containing innuendo. She alleged that
the published matter gave the meaning that Mr. Cassidy did not iive with her and that they were
not wife and husband. The defendants contended that they acted in good faith and without any
intention to defame the plaintiff. What was judgment given by the Court?
25.
The defendants published an article in their newspaper in which they referred to certain aero
plane smuggling exploits of ‘an English woman’. The plaintiff brought a libel action against the
defendants and in her statement of claims she alleged that the words “an English woman”,
“she” and “her” in the article, referring to the woman meant the plaintiff. But the plaintiff was
not identified in the article by name or description as the woman referred to by any witness. Are
the defendants liable?
26.
The defendants in good faith published a mistaken statement that the plaintiff had given birth to
twins. The plaintiff had been married only two months back. Are the defendants liable?
27.
In Pooja Bhatt vs. Stardust Newsmagazine (1997-May) incident, one unknown computertechnologist obtained nude photos of some ladies, and computerized those photographs with
the head of Pooja Bhatt in their May, 1997 issue, which caused a sensation in India. What was
the result of the incident?
•28-
4.A.(iv). DEFENCES AGAINST THE SUITS OF DEFAMATION
28.
What are the defences available in a suit of defamation?
29.
What is meant by “Rolled up plea”?
30.
“I do not fear to face millions of guns. But I fear to face a singie pen. ” - Who said?
31.
The defendant criticised the work of the plaintiff. A paragraph runs: “The Whip Hand’, the joint
production of Mr. and Mrs. Herman Merivale gives us nothing but a hush-up of ingredients
which have been used ad nauseum untii one rises in protest against the ioving, confiding,
fatuous husband with the naughty wife and her doubie existence, the good mate genius, the
limp aristocrat and the villainous foreigner.” The plaintiff alleged that the word complained of
suggested that the “naughty wife” was an adulterous wife, when in fact there was no mention
of adultery in the play. The defendant contended that it was a fair comment. What was judgment
given by the Court?
32.
What is meant by “Privilege”?
33.
What are the kinds of privileges?
184
The Law of Torts
34.
What is meant by ‘Absolute Privilege’?
What is object of Absolute Privilege?
35.
36.
“Justification by truth” is the
1860.
37.
Fair and bona fide comment is a good example for
How many are the groups of Absolute Privilege?
38.
39.
40.
exception of Section 499 of the Indian Penal Code,
A, a Member of a State Legislature, called a citizen as a smuggler in a speech on the floor of
Legislative Assembly. Discuss the rights of the citizen
What is meant by “Qualified Privilege”?
4.B.
against A. Discuss.
NEGLIGENCE
DEFINITION AND ESSENTIALS OF “NEGLIGENCE
41.
42.
What is the meaning of ‘Negligence’?
What are the rival theories of negligence?
43.
What is the meaning of the Subjective Theory of Negligence?
44.
By whom the Subjective Theory is supported?
Write the definition given by Austin on the Subjective Theory of Negligence.
Write the definition given by Salmond on the Subjective Theory of Negligence.
Write the definition given by Winfield on the Subjective Theory of Negligence.
What is the meaning of Imperitia Culpae adnumeratur^
45.
46.
47.
48.
49.
50.
51.
52.
53.
54.
What is the meaning of the Objective Theory of Negligence?
By whom the Objective Theory of Negligence is supported?
Write the definition of the Objective Theory of Negligence as given by Pullock.
Write the definition of the Objective Theory of Negligence as given by Clark and Lindsell.
Write the definition of the Objective Theory of Negligence as given by Alderson.
Write the definition of the Objective Theory of Negligence as given by Lord Wring.
55.
What are the essentials of negligence?
56.
A ordered for a cool drink Coco-Cola in a restaurant of B. B supplied the Coco-Cola in a sealed
bottle of the company. A while drinking found some decomposed pieces of lizard A fell sick
had vomiting and was taken to hospital. Examine the liabilityforA’s damages. The manufacturers
of Coco-Cola are liable to pay damages to A. What is the liability of Coco-cola? Cite the leadina
case-law.
^
57.
Write the brief facts of # Donoghue vs. Stevenson (1932 AC 562).
58.
What was the judgment given by the House of Lords in # Donoghue vs. Stevenson (1932 AC
562)?
59.
M
(1932 AC 562)?
60.
propounded by Lord Atkin in # Donoghue vs. Stevenson
The plaintiff’s son travelled on a top of R.T.C. bus. The driver and conductor allowed some of
the passengers to sit on the top, as there was no sufficient space in the bus. While the bus
was going, the plaintiffs son fell down from the bus due to striking of an overhanging branch of
a tree, and died.
61.
The plaintiff put her elbow on the window sill while she was travelling in bus. A truck coming
from the oppositedirection hit her in her elbow as a result of which she lost her elbow.
62.
A workman suffered a burn injury on his lower lip because of the negligence of his employer.
Later, the injury turned into cancer and resulted in his death. Is the employer liable for the death
of the workman? Discuss..
63.
The defendant/Municipality dug a pit, and left it unguarded and unsafe. No sign board or light
was arranged. In the evening the plaintiff came on bicycle and fell in the pit and got injuries Is
defendant/Municipality liable?
64.
What are the duties of the employers of the industries?
Unit - IV : Defamation, Negligence, Etc.
65.
185
The plaintiff handed over a proceeding to the defendant-advocate ; The case was lost due to
the negligence in conducting the trial. Aggrieved by the attitude of the advocate, the plaintiff
brought a civil proceeding against the advocate alleging his professional misconduct. Is
defendant/advocate liable?
66.
What is the meaning of ‘breach of duty’?
67.
What is the standard of care required? Does it require
the standard of a reasonable man or of
an ordinary person?
68.
High tension wires running over a farm got snapped. As a result, the plaintiff’s husband died by
the live electric wire. Is the TN. Elec. Board liable?
69.
The defendants were the executive members of a cricket club. The defendants had a ground
enclosed by seven feet fence, the top of which, owing to a slope, stood seventeen-feet above
the level of the pitch. One of the players hit the ball with a high speed, and that ball struck the
plaintiff who was on a side of road of residential houses. The plaintiff was injured severely. The
distance was about 78 yards from the fence and 100 yards from the ground. The plaintiff sued
the defendants for damages. The defendants pleaded that there was no negligence on their
part, and they constructed fencing around the ground with a 7' height, and previously too there
were no instance of causing injuries to any person. Are the defendants liable?
•70
RES IPSA LOQUITUR
70.
What is the meaning of “Res ipsa loquitur”?
71.
The wife of the appellant Smt. Shantadevi was working as a Senior Lecturer in English. On 31 -1981, she left for college and travelled, as usual, by Harbour Line local train to Bandra from
Kings Circle. She was having first class railway pass. She was in first class ladies compartment.
While the train was moving, four persons entered into her compartment, robbed her jewellery,
watch etc. She protested, and pulled the chain. But despite of the ringing of the alarm bell
neither the guard nor the motorman stopped the train. The culprits injured and raped her. As a
result she died. What was the judgment?
72.
A fire broke out in the house rented by the defendant in storing fireworks which were highly
dangerous and much loss was caused to the lesser. The quantity of explosives stored were at
73.
least 5,000 lbs., whereas the licence permitted was only 1,000 lbs. Is the defendant liable?
Rajaratnam (34 years) was travelling in the defendants’ bus. The bus driver drove the vehicle
with a high speed negligently and rashly, and he lost control over the vehicle. The bus was hit
with a great speed and velocity to a big tamarind tree, and then too it could not stop. It stopped
by a stone which was 25 feet away from the tamarind tree. The tamarind tree was damaged
heavily. The bus was damaged. After hitting the tree, Rajaratnam jumped down from the bus
to save his life. In doing so, he received serious injuries. All the passengers who were in the
bus also received serious injuries. Three days after the incident, Rajaratnam died. Is defendant
liable?
74.
75.
76.
What are the essential requisites for the application of Res Ipsa Loquitot?
The defendant was maintaining a warehouse. While the plaintiff was passing-by in the street
below, a barrel of flour had rolled out of an open doorway of the defendant’s warehouse and
fallen on the plaintiff. He sustained injuries. He sued the defendants. Is defendant liable?
Due to the breaking of a steel rope, which hauled the trucks, accident occurred. As a result,
plaintiff and some others were injured. It was evident that it was the second instance within one
week. The steel ropes arranged for the purpose were broken twice in a week. The defendants
could not explain why the ropes broke, but they had proved that they had taken reasonable care
to provide a proper system. Is defendant liable?
77.
The portico of the Government Hospital fell down and killed a person on the spot. The portico
was constructed just three years back. Is the defendant-Governme nt liable?
•78
4.B.(iii).
CONTRIBUTORY NEGLIGENCE
78.
What is the meaning of the ‘Contributory Negligence’?
79.
What is the meaning of the ‘Contributory Negligence’?
80.
A pedestrian, who tried to cross a road all of a sudden and was hit by a moving vehicle, while
the green signal was on for motor vehicles. Is the defendant liable?
186
The Law of Torts
81.
The defendant wrongfully obstructed road by placing a pole across it. The plaintiff was riding
his van. He drove the horses at such an excessive speed. He was overthrown by the pole and
injured. There was sufficient day light to see the obstruction at a distance of 100 yards. If the
plaintiff would have taken reasonable care and reduced his speed, the accident might have not
been occurred. He sued the defendant for obstructing the road. Is the defendant liable?
The deceased crossed the road which had become slippery due to ice. As he suddenly came
in front of the motor vehicle he was run over by the motor. Is the defendant liable?
82.
83.
A boy was sitting in a bus projected his arm outside the bus. The conductor warned the boy.
The boy did not heed the instructions of the conductor. He was injured by opposite coming
vehicle.
84.
A, knowing that B was under the influence of drunkenness, choose to travel by a car driven by
B. Due to the drunkenness of B the car met with an accident. A sues B. Will A succeed?
85.
What is the meant by the ‘Last Opportunity Rule’?
The plaintiff fettered the fore-feet 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.
86.
Is the defendant liable?
87.
The defendants were the tramway company running tramways. The deceased was a passenger
in one of the tramways of the company. The driver of the tramway reached a railway line
crossing. Without observing or noticing whether the any train was coming or not, he drove the
vehicle speedily on the railway line. At that time a train was coming. Suddenly the driver had
applied brakes. Due to defective brakes, the vehicle could not stop. The train crashed the
tramway causing the death of passenger. The dependant of the deceased sued the tramway
company. The defendants pleaded that there was a last opportunity to the deceased and he
could have jumped down from the tramway, and could have saved his life. They contended that
the deceased could not avail the last opportunity, and it was his fault, and therefore, they were
not held liable. Is the defendant liable? What is meant by the “Constructive Last Opportunity”?
88.
The defendants were a railway company. They arranged a turntable on their land. The turntable
was very nearer to the road. The defendants constructed fencing around their boundary. The
children of vicinity used to come to turntable, through a gap made in the fence. The defendants
and their employees saw the children coming and playing with turntable, but did not object. The
plaintiff’s four year child visited the turntable to play. While playing with turntable, she was
injured. The plaintiff sued the defendants for damages. The defendantspleaded contributory
negligence as their defence. Are the defendants liable?
89.
What is the meaning of ‘Composite Negligence’? What is difference between ‘Contributory
Negiigence’ and ‘Composite Negligence’?
■90-
4.C.
TORTS AGAINST BUSINESS RELATIONS
4.D.
INJURIOUS FALSEHOOD / MALICIOUS FALSEHOOD
90.
What is meant by “Falsehood”? What is meant by “Injurious
Faisehood”? What is meant
by “Maiicious Faisehood”?
91.
A and B intend to marry. C does not want that marriage
performed. He tells to D that A is a
characterless person, debaucher, drunkard, etc. He knows that A is a good man and does not
have such bad characters. Though, he intentionally and maliciously tells lies to D and other
public, so that the rumors must reach to B, and she must reject the marriage. D tells C’s
statement to B. B rejects the marriage believing the false statement of C. What is the wrong
done by C?
92.
What is the distinction between Wlalicious Falsehood
93.
95.
What are the similarities between “Malicious Falsehood”
What is the meaning of “Slander of Title”?
Give an example for “Slander of title”?
96.
What is the meant by “Slander of Goods”?
97.
Give an example for “Slander of Goods”.
94.
and Deceit?
and “Defamation”?
-98-
Unit - IV : Defamation, Negligence, Etc.
4.E.
98.
99.
NEGLIGENT MISSTATEMENT
What is the meaning of “Statement” and “Misstatement”?
Negligent Misstatement is also called as
Statement.
100.
187
Misrepresentation or
102.
What is the meant by negligent misstatement?
What are the examples of negligent misstatement?
What are the kinds of negligent misstatement?
103.
A mis-statement is a
104.
The defendant company was over-debited. To clear its liabilities, it released a public issue for
101.
or
, if the defendant willfully plays it upon the plaintiff.
debentures mentioning the company’s financial position as sound and prosperous, and the
funds were required for further development. The public purchased debentures. The defendants
cleared their liabilities with that amount, instead of putting the funds for the development. One
of the debenture holders questioned in the Court.
105.
Can mere silence be treated as a fraud?
106.
A, a woman of unsoundness of mind, marries B. B gets divorce on that ground. After divorce,
A contracts C for marriage. Neither A nor her parents do not reveal the fact of her state of
unsoundness of mind to C. Is it a fraud? Are A and her parents liable?
107.
The defendants were the directors of a tramways company, whose tramways were run by
animal power. The technical knowledge of steam power was introduced newly at that time.
The defendants planned to introduce steam power system, for which huge money was required.
They obtained the permission to use the steam power from the Government. They had to
obtain consent from the Board of Trade. The defendants honestly thought that as they got the
permission from the Government, they would get consent from the Board of Trade, which was
a mere formality. They applied the Board of Trade for their consent, enclosing the permission
letter issued by the Government. The defendants thought that consent would be granted
automatically. Meanwhile they offered their company shares to the public, mentioning the fact '
that they got the permission from the Government. However, the Board of Trade did not grant
the permission to the defendants. As a result, the company was wound up. The plaintiff was
one of the purchasers of shares basing upon the prospectus. He sued the defendants/directors
alleging that they knowingly suppressed the fact that they did not get the consent from the
Board of Trade. Are the defendants liable?
108.
What is meant by ‘Negligent Misstatements’?
109.
The plaintiffs were advertising agents. Easipower Ltd. was one of their customers proposed to
have advertising contracts with the plaintiffs. The defendants were the bankers. Easipower
Ltd. was having banking relations with the defendants. The plaintiffs wrote a letterto the defendant-
bankers requesting to enquire and inform the trustworthy of Easipower Ltd. to an extent of one
lakh pounds per year. The plaintiffs also informed the bankers the purpose to establish the
business relations with Easipower Ltd. The defendants replied that Easipower Ltd. was a
trustworthy party for one lakh pounds, and it was a respectably constituted company, considered
good for its ordinary business engagements. They also concluded the letter giving the meaning
that letter was issued for the plaintiffs private use and without responsibility on the part of that
bank or its officials. The plaintiffs relied the statement of the defendants, and concluded the
contracts with Easipower Ltd., and had business relations, and spent huge amounts. Some
months later, Easipower Ltd. was liquidated. As a result, the plaintiffs were put into a loss of
17,000 pounds. The plaintiffs sued the defendants alleging that basing upon the misstatement
of the banker, they were compelled to face the loss. They also contended that it was a breach
of duty on the part of the bankers. The bankers/defendants pleaded that there was no
110.
responsibility on their part basing upon the concluding part of the letter.
What is meant by “innocent misrepresentation”?
Ill
4.F.
111.
PASSING OFF
112.
What is meant by “Passing off the goods”?
Give an example of “Passing off the goods”?
113.
What is the object of recognizing the passing off goods?
-114
188
The Law of Torts
4.G.
CONSPIRACY - DISTINCTION BETWEEN
CRIMINAL CONSPIRACY AND TORTUOUS CONSPIRACY
114.
What is meant by “Tortuous Conspiracy”?
115.
What is meant by “Criminal Conspiracy”?
116.
In the Isle of Lewis, some mills were producing Harris Tweed from yarn handspun from wool by
the crofters of Lewis. Some other mill-owners in the Isle of Lewis were importing yarn from the
mainland. Importing yarn was cheaper than the locally manufactured yarn. Thus cloth woven
from imported yarn was sold much more cheaply than cloth made from local yarn spun in
Lewis. The defendants were a Trade Union. 90 Per cent of the workers working in the Mills
were the members of the Transport and General Workers’ Union. Dockers of the Isle of Lewis
were also members of that Union.
The Union demanded the mill-owners to increase their
wages. The Mill-owners who depended upon ‘he local yarn refused to pay the enhancement of
wages alleging that due to bad competition from the mill-owners who were importing yarn and
were selling the cloth at lower rates than their rates. The Union officials understood the problem
and incapacity of the mill-owners, who were depended upon the local yarn, and also unhealthy
competition between them. They thought to stop the importation of yarn, so that the mill-owners
depended on the local yarn can give sustainable and suitable employment and also the enhanced
wages. To achieve this object, they immediately put an embargo on the importation of yarn by
the
ordering the Dockers not to handle the imported yarn. Dockers, being they wese a
members of the Union, obeyed the instructions of the Union without breakiny a ny
■auThis effected on the mill-owners who were importing the yarn. These producers sued the
Union Officials alleging that the union officials conspired with the mill owners depended upon
local yarn and intervention with their business, and caused heavy loss to them, and claimed
damages. The Union Leaders argued that their object was to survive their livelihood, and to get
the enhanced wages, but not to injure the plaintiffs.
'.r'l
117-
4.H.
TORTS AFFECTING FAMILY RELATIONS
TORTS AFFECTING FAMILY RELATIONS IN ENGLAND
117.
What was the position of the wife in England up to
118.
The plaintiff was the wife. The defendant was her mother-in-law. The defendant engaged the
plaintiff’s husband, i.e. her own son as a driver for her own car. While driving the car, the
1962?
husband did accident to his wife. The p'aintiff-wife sued her mother-in-law and her husband
principal and agent.
119.
What was the position of the wife in England after 1962?
TORTS AFFECTING FAMILY RELATIONS IN INDIA
120.
What was the position of women in India before the independence?
121.
What was the position of women in India after the independence?
What is meant by ‘Matrimonial Cruelty’?
122.
123.
When was the ‘Dowry Prohibition Act, 1961 ’ enacted?
124.
What are the laws made in India for the maintenance of old aged parents?
125.
What is the enacted against Sexual Harassment of women?
126.
What is the position of the children in India?
NOTE
I have been revising the SCgl(gil]Oig
SERIES according to the new Syllabus and new
pattern examination, with latest Acts, Sections, Case-Laws, etc. However, these books are also
useful to the old syllabus and old examination pattern.
GADEVEERA REDDY
as
Unit - IV : Defamation, Negligence, Etc.
189
ANSWERS
4.A.
DEFAMATION
4.A.(i).
1.
LIBEL AND SLANDER
LIBEL, (n.) = A libel is a false and defamatory statement made or conveyed by written or
printed words without lawful justification or excuse. Any publication which exposes an individual
. to hatred, contempt or ridicule, being published without lawful excuse, is a libel. EXAMPLES:
A false and defamatory statement made in writing or printing, picturising, making statute or
waxwork, effigy, filming, etc.
2.
SLANDER, (n.) = Slander Is a false and defamatory statement made by spoken words or
gestures to a person other than the person defamed, causing injury to the person defamed.
EXAMPLES: spoken words and gestures.
3.
In # Youssoupoff vs. Metro Godwyn Mayer Pictures Ltd. (1934) 50 TLR 581 (CA), the
Court held that it was a clear libel, and the held the defendants liable. It held that in a cinema,
not only the photographic part but also the speech should be considered as a libel.
4.
According to the English law, libel is a crime, but slander is a civil wrong.
In India, there is no such distinction. In India, both libel and slander are the criminal offences
as defined in Section 499 of the Indian Penal Code, 1860.
5.
4.A.(ii).
6.
DEFAMATION
Defamation, (n.) = The taking from another’s reputation; a false publication calculated to bring
one in disrepute.
7.
Defamatory, (adj.)
containing defamation tending to defame; calumnious;
slanderous: libellous; Injurious to reputation.
8.
Tomlins Law Dictionary: “Defamation is when a person speaks scandaious words of others,
whereby they are injured in their reputation. ”
9.
Winfield:
‘Defamation is the pubiication of a statement which tends to iowera person in the
estimation of right thinking members of society, generaily
or which tends to make them shun
and avoid that person.”
10.
The Indian Penal Code, 1860 (Section 499): “Whoever by words either spoken or intended
to be read, or by visibie representations, makes orpubiishes any imputation concerning any
person intending to harm, or knowing, or having reason to beiieve that such imputation wiil
harm, the reputation of such person, is said, except in the cases excepted, to defame that
person.”
11.
Yes. BcansueA, and A is liable for the defamation.
12.
In # Capital & Counties Bank vs. Henty (1882 7 App Cas 741), the trial Court dismissed the
petition of the plaintiff. The Court of Appeal reversed the decision
of the trial Court. The Court
of Appeal held that the defendant was not liable for the use of the word “drunkard”atthe election
meeting, as it was said by him to the plaintiff’s words “a rowdy and a suspect”. However, the
defendant was held liable for the word “Drunkard” used second time by the defendant, without
any provocation or any words from the side of the plaintiff.
13.
Defamation is of two kinds - (i) Libel; and (ii) Slander.
14.
15.
Yes. A has committed defamation, and is liable to pay damages to B.
A is liable to pay damages. The facts of the problem are identical with Hulton
(1910 AC 20)”.
,
16.
The House of Lords held that the words were considered to be understood as referring to the
& Co. vs. Jones
plaintiff, and held the defendants liable and ordered to pay damages.
17.
A partnership firm is not a legal entity. No suit for defamation is maintainable by a firm as it is not
a legal person. However, suit for defamation may be brought by the individual partners.
18.
Defaming a deceased person is not a tort. But under Section 499 of the Indian Penal Code,
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
living family members or other near relatives.
190
19.
The Law of Torts
If a defamatory statement or representation refers to a group of individuals or a class of persons,
no member of that group or class can file a defamation suit against the maker of that statement.
For example, a writerwrites like this: “In India, all political leaders are corrupted. All lawyers are
liars. All bureaucrats are lazy fellows. ” An individual member of a political party, or lawyers, or
bureaucrats is not entitled to file a defamatory suit against the above statement.
■20-
4.A.(iii).
INNUENDO
20.
Innuendo. = an insinuation; an indirect reference; an indirect suggestion. Innuendo means
words which are not defamatory in the ordinary sense may nevertheless convey a defamatory
meaning owing to the particular circumstances in which they are used. Innuendo denotes the
explanatory statement that though the words were not libellous in their ordinary meaning they
had, in fact, a libellous meaning in the circumstances of the case.
21.
Examples of Innuendo: (a) Afzai Guru was a terrorist and was punished with capital punishment
for attacking the Parliament. Kasab was a terrorist and was punished capital punishment for
attacking Taj and Railway station and killing several people. Afzai Guru and Kasab were known
as notorious crirhinals, and killed the innocent people brutally. If A writes any article against B
saying that B is equal to Ranga and Billa. It is an innuendo. It gives defamatory meaning on the
character of B. (b) A says to B that C is a Suryakanthamma (an actress, who played wicked,
cruel mother-in-law characters in Telugu Pictures). It is an innuendo, (c) Gall Janardhan
Reddy is indulged in iron scam case and is in jail. Asays to B that C is such a corrupted officer,
even not comparable with Gall Janardhan Reddy. It is an innuendo.
22.
In # Tplby vs. J.S.Fry & Sons Ltd. (1931 AC 333 HL), the Court of Appeal held that the innuendo
was caused damage to the plaintiff and therefore, the defendants were held liable.
23.
Yes. X is liable for causing innuendo/defamation to the said politician.
24.
The House of Lords held that the defendants were liable and ordered to pay the damages to
the plaintiff.
25.
In Bruce vs. Odhams Press Ltd. (1936), the Court held that the defendants were not liable.
In Morrison vs, Ritihie & Co. (1902) 4 F 654), the Scottish Court held that even though the
defendants were ignorant of this fact, they were liable to pay damages.
26.
27.
The Feminists agitated against Pooja Bhatt alleging that she voluntarily gave nude poses. The
police detected the original cause. Pooja Bhatt sued the Stardust News Magazine for their
publication, for which the defendants apologized.
28
4.A.(iv). DEFENCES AGAINST THE SUITS OF DEFAMATION
28.
The important defences mentioned hereunder are the defences available forthe defendant in a
suit of defamation; (1) Justification by truth; (2) Fair and bona fide comment; (3) Privilege (Absolute
Privilege and Qualified Privilege); (4) Consent; and (5) Apology.
29.
In a defamatory suit, the defendant contends that his statements are true in substance and in
30.
fact, and in so far as they consist of expressions of opinion. They are expressed in good faith
and without malice for public interest. Such plea is called “Rolled up plea”.
Napoleon said: "I do not fear to face millions of guns. But I fear to face a single pen.”
In # Merivale vs. Carson (1887 20 QB 275), the House of Lords did not accept the defendant’s
Rolled-up Plea (i.e., his was a fair comment), and held him liable to pay damages to the plaintiff.
31.
32.
As used in its broad and commonly accepted sense, “Privilege” means a peculiar advantage;
a perspnal benefit orfavour; a private or personal favour enjoyed. It also means, in connection
with the context, a particular and peculiar benefit or advantage, enjoyed by a person, company,
or class, beyond the common advantage of other citizens; some peculiar right or favour granted
by law contrary to the general rule; the enjoyment of some desirable right; special enjoyment of
33.
34.
a good; an exemption from some general burden, obligation.
There are two kinds of privileges. They are - (i) Absolute Privilege; and (ii) Qualified Privilege. .
Privilege is a special legal right or immunity granted to a person or persons. Absolute
privilege is an immunity from lawsuit, usually a lawsuit for defamation, even if the action is
wrong, malicious, or done with an improper motive. Absolute privilege is most often expressed
for legislators. Absolute privilege should not be confused with qualified privilege, which grants
the same immunity from prosecution for defamation, but only in the absence of malice.
Unit - IV: Defamation, Negligence, Etc.
35.
36.
191
‘‘Salus populi est suprema”? Regard for the public welfare is the highest law is the
object of this Absolute Privilege. The object of this principle is public policy.
“Justification by truth” is the first exception of Section 499 of the indian Penal Code,
1860.
'/
37.
Fair and bOna fide comment is a good example for “Damnum sine injuria”.
38.
Absolute Privileges can be grouped in four - (a) Parliamentary proceedings; (b) Judicial
39.
proceedings; (c) Military and Naval proceedings; and (d) State proceedings.
A is privileged under Article 194 (2) of the Constitution of India. If A, the Member of the State
Legislature, calls the citizen as a “smuggler” outside the floor of Legislative Assembly, then,
definitely A shall be held responsible for the defamation.
40.
“Qualified Privilege” in the law of defamation extends to all communications made bona fide
upon any subject-matter in which the party communicating has any interest, or in reference to
which he has a duty to a person having a corresponding interest or duty. The privilege embraces
cases where the duty is not a legal one, but where it is of a moral or social character pf imperfect
obligation. The maker of the statement under this privilege can obtain defence, even though
such statement is false and defamatory, however, such statement should not be made with
malice. If the plaintiff successfully proves malice on the part of the defendant, qualified privilege
cannot be given to the defendant.
41
4.B.
NEGLIGENCE
DEFINITION AND ESSENTIALS OF “NEGLIGENCE
41.
99
Negligence in law means a coming short of the performance of duty. Negligence is not an
affirmative word. It is a negative word. It is the absence of such care, skill and diligence as
it was the duty of the person to bring to the performance of the work which he is said not to have
performed. In tort, it is an actionable.
42.
43.
There are several definitions given by eminent justices and jurisprudents. Among them, there
are two important rival theories about the nature and definition of negligence. These theories
are: (1) Subjective Theory; and (2) Objective Theory.
According to the Subjective Theory, all acts of a man are under the subject, i.e., control of
his mind. Happiness, sadness, love, fear, dare, etc. are the feelings of a man. Besides these
feelings, sometimes, man lies in a state of ‘indifference’. This indifference is the root cause
of the negligence. When a man did an accident, it depends upon his psychological feelings,
and more particularly on his indifference. According to this theory, negligence is a state of
mind.
44.
45.
The Subjective Theory is supported by Salmond, Austin, Winfield, etc.
Austin: “In case of negligence, a party performs not an act which he is obliged; he breaks a
positive duty.”
46.
Salmond: “Negligence is culpable carelessness. Negligence essentially consists in the mental
attitude of undue indifference with respect to one’s conduct and its consequences. ”
47.
Winfield: “Negligence as a tort is the breach of a legal duty to take care which results in
damage, undesired by the defendant to the plaintiff. Thus its ingredients are: (1) A legal duty on
the part of A towards B to exercise care in such conduct of A as falls within the scope of the
48.
duty; (2) Breach of the duty; (3) Consequential damage to B.”
This legal maxim means “Inexperience is accounted as a wrong”! An inexperienced person
does not possess skillfulness. He cannot think properly and efficiently. Inexperience leads to
negligent and wrongful act.
49.
According to the Objective Theory of Negligence, negligence is not a state of mind, but
merely a type of conduct of the person.
50.
The Objective Theory of Negligence is supported by Alderson, Clark and Lindsell, Lord
Wring, Pollock, etc.
51.
Pollock: “Negligence is the contrary of diligence and ho one describes diligence as state of
mind.”
52.
Clark and Lindsell: “Negligence is the omission to
take such care as under circumstances it
is the legal duty of a person to take, it is in no sense a positive idea and has nothing to do with
a state of mind.”
192
53.
The Law of Torts
Alderson; “Negligence is the omission to do something which a reasonable man guided upon
whose considerations which ordinarily regulate the conduct of human affairs, would do or doing
something which a prudent and reasonable man would not
do. ”
54.
Lord Wring: “In strict legal analysis, negligence means more than headless or careless conduct,
whether in omission or commission. It properly connotes the complex concept of duty, breach
and damage thereby suffered by the person to whom the duty owed. ”
55.
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. That defendant made a breach of that duty; and 3. That the
plaintiff suffered damage as a consequence thereof.
56.
The facts of the given Problem are identical with the famous leading case “Donoghue vs.
Stevenson (1932 AC 562)”.
57.
Brief Facts: The appellant went to a retailer wine shop along with her boy friend. He purchased
a ginger-beerfor her. The bottle was of dark opaque glass and closed with a metal cap, and the
contents were not seen. She poured some ginger beer from the bottle into a tumbler and
consumed, and when she poured the remaining ginger beer into tumbler, she observed the
decomposed body of a snail floated out. She brought it to the notice of the retailer. The gingerbeer already consumed affected on her, and she was seriously suffered in her health. A suit
was brought against the manufacturer of ginger-beer.
The manufacturer contended that he did
not owe any duty of care towards the plaintiff.
58.
The House of Lords held that the manufacturers were liable for their negligence, and that they
owed a duty to take care for every consumer including the plaintiff that the bottles supplied by
them did not contain any harmful and noxious substances.
59.
Neighbour’s Rule: In Donoghue case, Lord Atkin propounded: “You must take reasonable
care to avoid acts or omissions which you can reasonably foresee would be likely to injure your
neighbour.”
60.
61.
In R.T.C. vs. Bezium Bibi (AIR 1980 Cal. 165), the Calcutta High Court held that the defendant/
R.T.C. was held liable for damages to the plaintiff.
In Shushma Mitra vs. M.P.S.R.T.C. (AIR 1974 MP 68), the M.P. High Court held that the R.T.C.
was liable and also opined that it was the least duty to take care of the passengers, though
some of them act foolishly.
62.
Yes. The employer is held responsible under the Workmen’s Compensation Act, 1923.
63.
In Municipal Board, Jaunpur vs. Brahm Kishore (AIR 1973 All 168), the High Court held that
the defendant/MunIcIpality was held liable for its negligence.
64.
Every employer of an industry should take all precautions and take safeguards in producing the
goods. At the same time, he has to take all precautions and take safeguards to protect the
employees. He should keep the environment of the factory and its surroundings very clean and
healthy. The Factories Act, 1948, The Environmental Protection Laws, etc., impose statutory
duty upon every management of the factory. If the workers’ health is affected, the management
is held liable to pay compensation under the Workmen’s Compensation Act, 1923, Dangerous
Machines (Regulation) Act, 1983, etc.
65.
In # Rondel vs. Worsley (1967) 3 W.L.R. 1666 (1967) 3 AER 993), the House of Lords
unanimously held that an advocate could not be sued by his client in respect of alleged negligence
in the conduct of atrial.
66.
Breach of duty means non-observance of due care which is required in a particular situation.
67.
The answer is that if the defendant has acted like a reasonable prudent man there is no
negligence. There are two points in determining the standard of care - (I) The Importance of
the object to be attained; and (II) the magnitude of the risk. A balance has to be drawn
between the importance and usefulness of an act and the risk created by an act. A speed of 60
K.Ms. may not be negligent for a fire brigade vehicle or ambulance. But the same speed may
be treated as an act of negligence for general vehicle. It is the general presumption that a
person carrying a loaded gun is expected to take more precaution than person carrying an
ordinary stick or unloaded gun. The degree of care depends upon the magnitude of risk which
could have been foreseen by a reasonable and prudent man.
68.
In NIrmala vs. T.N. Elec. Board (AIR 1984 Mad. 201), the Madras High Court held that it was
the duty of the defendants/T.N. Elec. Board to maintain the electric wires properly and skillfully.
The accident occurred due to their negligence and breach of duty. The plaintiff was awarded
damaged.
69.
In # Bolton vs. Stone (1951 AC 850 HL), the House of Lords admitted the argument of the
defendants and gave the judgment in favour of them, opining that there was neither negligence
nor nuisance caused by the defendants. They also opined that although the possibility of the
ball being hit on to the highway might reasonably have been foreseen, but it was not sufficient to
impose liability upon the defendants, and it could not establish their negligence.
70-
RES IPSA LOQUITUR
70.
“Res ipsa loquitur” is a Latin phrase. It means “proof of negligence”: “the thing speaks
INNUENDO
for itself” and “the accident talks for itself’.4.A.(iii).
71.
In P.A. Narayanan vs. Union of India and others (1998) 3 SCC 6), the Supreme Court gave
judgment on 13-2-1998, and severely condemned the administration of railways. It opined that
if the train was stopped when the victim pulled the chain, the rape and consequently her death
would have not occurred. It held that the negligence of the railway employees was res ipsa
loquitur \n this case. The Court ordered the Central Government to pay Rs. 2 Lakhs to the
husband/appellant.
72.
In Mohmed Rowther vs. Shunmugasundaram Chettiar (AIR 1943 Mad 343), the Madras
High Court applied the maxim “Res ipsa loquitur”, and held the defendant was liable. The
burden of proof was on the defendant to show that he had complied with the terms of his
licence and had not in anyway been negligent.
73.
In Gobald Motor Service vs. Veluswami (AIR 1962 SC 1), the Supreme Court held that the
facts on the face of the records were revealing that the bus driver drove the vehicle with a great
speed, causing damage to the tamarind tree and the bus too. The damage caused to the tree
and bus themselves were the eye-witnesses and “res ipsa loquitur”. Both of them spoke the
truth. Hence the defendants were held liable.
74.
Essential requisites for the application of the maxim are: (1) The thing which causes the
harm must be under the control of the defendant. (2) While under his control an accident
happened, which would not in the ordinary course of things happen without negligence. (3) The
defendant gives no explanation.
75.
In # Byrne vs. Boadle (1863) 2 H & C 722), the House of Lords held the defendant was
responsible, and ordered him to pay compensation to the plaintiff. They pointed out that the
flour and barrel in the street, the flour on the body of the victim were sufficient evidences and
they spoke the facts of the incident against the defendant.
76.
In Turner vs. National Coal Board (1949 TLR 65), the Court accepted the averments of the
defendants that they took reasonable care. It acquitted them.
77.
' 1 Collector of Ganjam vs. Chandra Das (AIR 1975 SC 205), the Supreme Court held that the
collapse of the portico of the costly building of the hospital within 3 years of its construction told
its own story and must be ascribed to the inherent defect in the construction and applied the
maxim “Res ipsa loquitur”, and held the defendant liable.
If
1^
K
193
Unit - IV : Defamation, Negligence, Etc.
•78
CONTRIBUTORY NEGLIGENCE
78.
Every person is expected to take reasonable care of him. Thus a man who keeps his hand
outside the window of a railway coach or hangs on the footboard knowing the risk involved in
such act invites the injury himself and cannot claim for damages. It is called the ‘Contributory
Negligence’. At the common law, contributory negligence of the plaintiff is a complete defence
to an action for damages for negligence of the defendant. The burden of proof lies upon the
defendant.
79.
The principle underlying the Doctrine Contributory Negligence is that when both the parties
are equally to blame neither can hold the other liable.
80.
In Yoginder Paul Chowdhury vs. Durgadas (1972 SCJ 483 Del), the Delhi High Court held
that the pedestrian was guilty of contributory negligence.
81.
In # Butterfield vs. Forrester (1809) 11 East 60), the Court of Appeal held that the plaintiff was
himself liable under this doctrine.
82.
In Nance vs. British Columbia Elec. RIy. Co. (1951 AC 601), the Appellate Court held that
there was contributory negligence on the part of the deceased, and therefore the defendant
was not held liable.
194
The Law of Torts
83.
In Harris vs. Toronto Transit Commission (1968 ACJ 448), the Appellate Court held that the
boy was not entitled for damages due to the contributory negligence.
Yes. A will succeed. The facts of the problems are identical with leading case Dann vs.
84.
Hamiitan (1939) 1 KB 509).
When two persons were negligent, that one of them, who had the last opportunity of avoiding
the accident by taking ordinary care, should be liable for the loss. If the plaintiff had an opportunity
to avoid the accident, but he could not take proper steps to prevent it, he could not make the
85.
defendant liable. If the defendant had an opportunity to avoid the accident, but he failed to take ’
proper steps to prevent it, he could be made liable. It is called as the ‘Last Opportunity Rule’.
86.
In Davies vs. Mann (1882) 10 M.and W. 546), the Court held that in spite of his own negligence
the plaintiff was held entitled to recover because the defendant had ‘last opportunity’ to avoid
the accident.
87.
In British Columbia Electric Co. vs. Loach (1916) 1 AC 719), the House of Lords did not
admit the contention of the defendants, and hold that the defendants must have trained the
drivers of the tramway to stop and check the trains at the railway lines and then to cross. They
opined that the defendants utterly neglected this duty and therefore they ordered the defendants
to pay compensation to the plaintiff/dependent. This case-law stands as a good example for
“Constructive Last Opportunity”.
88.
In Cooke vs. Midland Great Western Railway of Ireland (1909 AC 229), the House of Lords
gave the judgment in favour of the plaintiff. They opined that the plaintiff’s child was a licensee.
It was the duty of the defendants to lock the turntable and to fill up the gap'in the fence. They
failed in their duty. There was no contributory negligence on the part of the children. They were
licensees in the said circumstances. Being childhood, they were allured by the unlocked
turntable, which was the result of negligence of the defendants. Defendants had a last opportunity
to fill up gap in the fence and to lock the turntable. Hence the defendants were held liable.
89.
If a plaintiff is injured or has sustained damage due to his own negligence, which has contributed
to the accident caused by the wrongful conduct of the defendant, he has committed an act of
contributory negligence. Whereas ‘Composite Negligence’ refers to the negligence on
the part of two or more persons. Where a person is injured as a result of negligence on the part
of two or more wrong doers, it is said that the person was injured on account of the composite
negligence of those wrong-doers. In such a case, each of the wrongdoers, is jointly and severally
liable to the injured for payment of the entire damages and the injured person has the choice of
proceeding against all or any of them. In such a case, the injured need not establish the extent
of responsibility of each wrong-doer separately, nor is it necessary for the court to determine
the extent of liability of each wrong-doer separately.
■90-
4.C.
TORTS AGAINST BUSINESS RELATIONS
4.D.
INJURIOUS FALSEHOOD / MALICIOUS FALSEHOOD
90.
“Falsehood” means necessarily the violation of truth for purposes of deceit. It also denotes
“Lie”. Where A tells lies to B against C, which A knows that they are false and also knows that
by his false statement, some injury will occur to C. Knowingly to cause damage to C, A tells lies
to B. It injures C economically, socially and psychologically. Thus the act of A has been
recognised by law as a tort and named it “Injurious Falsehood”. It is also known as
“Malicious Falsehood”.
91.
92.
By the act of C, A is humiliated in the society, and he is forced to face the loss which incurs for
marriage function. Here C’s act is called “Injurious Falsehood” or “Malicious Falsehood”.
The Malicious Falsehood is akin to wrong of deceit. However, there is siight difference
between malicious falsehood and wrong of deceit. In a wrong of deceit, the defendant makes
the false statement or plays an act directly against the plaintiff. In a wrong of malicious
falsehood, the defendant makes thefalse statement to a third person against the plaintiff, i.e.
he causes loss to the plaintiff indirectly.
93.
There are some similar points between these two wrongs: (1) Both the wrongs are intended to
cause injury to the plaintiff. (2) In both the wrongs, the defendant makes the statements to third
persons.
-
Unit - IV: Defamation, Negligence, Etc.
195
,
94.
In the wrong of “Slander of Title”, the defendant makes false and malicious statement in
writing or verbal to third person against the plaintiff. Such statement affects the title of real or
personal property of the plaintiff. In the “Slander of title” the words used by the defendant
tend to disparage the extent or the nature of the title of the plaintiff. Slander of Title is the name
given to any words, whether spoken or written, which impugn the plaintiff’s title to any property,
real or personal, in possession or remainder, vested or contingent.
95.
A is the owner of XYZ shop. A approaches C for loan to run his shop. B says to C that A is not
the owner of XYZ shop and he pledged his shop to D. In fact, there is no relation between A and
D and there is no pledge to D. C does not give loan to A on the statement of B. This statement
adversely affects upon A in business circle. It is a “Slander of title”.
96.
Anything uttered by the defendant to a third person describing the goods of the plaintiff as of
lower standard, defective and are not useful, such statement is a slander of goods. By such
statement, the value of the goods is depreciated and the plaintiff suffers loss of sales, and good
will among the customers.
97.
Example for “Slander of Goods”: A is the kirana shop owner. B tells other that the goods of
As shop are very defective and highly priced. By B’s statement. As sales are come down. It is
“Slander of Goods”.
■98
NEGLIGENT MISSTATEMENT
4.E.
98.
99.
“Statement” means an act of stating, reciting, or presenting verbally or on paper. “Mis
statement” means an act of stating, reciting, or presenting lies verbally or on paper. It is a
false statement intended to deceive other party. It is fraud planned to deceive the plaintiff and
cause injury to him, or to get certain advantages for the defendant. It is a recognised tort.
Negligent Misstatement is also called as Negligent Misrepresentation or Careless
Statement.
100.
Negligent Misstatement is also called as Negligent Misrepresentation or Careless
Statement. A false statement of fact made honestly but carelessly. A statement of opinion
may be treated as a statement of fact if it carries the implication that the person making it has
reasonable grounds for his opinion. A negligent misstatement is only actionable in tort if there
has been breach of a duty to take care in making the statement that has caused damage to the
claimant. There is no general duty of care in making statements, particularly in relation to
statements on financial matters. Responsibility for negligent misstatements is imposed only
if they were made in circumstances that made it reasonable to rely on them. If a negligent
misstatement induces the person to whom it was made to enter into a contract with the maker
of the statement, the statement may be actionable as a term of the contract if the parties
intended it to be a term or it may give rise to damages or rescission under the Indian Contract
Act, 1872.
101.
Examples for negligent misstatement: (a) To certify a characterless person as a good
person; (b) To certify a building value for Rs. two lakhs, whereas its original value is one lakh
only: (c) To assert an Indian made article as that of foreign one; (d) To publish the false in a
prospectus of a company with an intention to procure public money; (e)To assure the bridegroom
that the bride is good and beautiful, even though she is unsoundness of mind; etc.
102.
The kinds of negligent misstatement: (i) Deceit or Fraud; (ii) Negligent mis-statements; and
(iii) Innocent mis-representations.
I
.
103.
A mis-statement is a deceit or fraud, if the defendant willfully plays it upon the plaintiff.
104.
In Edington vs. Fitzmaurice (1885) 29 ChD 459), the Court gave the judgment in favour of the
plaintiff opining that the defendant company issued false statements to attract the people, and
held the directors liable forfraud.
105.
When the defendant makes a positive false statement of fact, then only it becomes fraud. Mere
silence does not become a fraud. However, if there is statutory duty to speak the truth, and the
defendant remains silence, still he is held liable, even though he does not make any statement.
The contracts of ubenimae tfdei are good examples for this. In a contract of insurance, the
person proposing insurance should state all the facts to the insurer. If he keeps silence, and
does not disclose any material matters, he is liable.
106.
Yes. A and her parents are liable. In Kiran Bala vs. B.P. Srivastava (AIR 1982 All. 242),
Allahabd High Court gave judgment against A and her parents liable.
196
107.
The Law of Torts
In # Derry vs. Peek (1889) 14 AC 337), the House of Lords gave the judgment in favour of the
defendants, opining that the defendants/directors honestly believed in their statement, and they
honestiy trusted that the permission from the Government would yield the consent of the Board
of Trade automatically and they honestly believed that such consent was only mere formality.
They also opined that the statement of the defendants was a mere negligent mis-statement
108.
without intention to deceive the public. Therefore, the defendants were not held liable.
Fraud or deceit is a deceitful practice or willful device resorted by the defendant to deprive
plaintiffs right, or in some manner to do, an injury to the plaintiff, or to get some advantage for
him. It is always positive. The intention of the wrong-doer is reflected in his misstatement to do
fraud. In a fraud, what is done designedly and knowingly, the wrong-doer plans it before to act.
In negligent misstatements, the wrong-doer has no purpose to do a wrongful act, or to omit the
performance of a duty. There is no plan or intention to make such negligent misstatements. It
is always negative.
109.
In # Hedley Byrne and Co. Ltd. vs. Heller and Partners (1964 A.C. 495); (1963) 2 All E.R.
575), the House of Lords held that the letter of the bankers/defendants was a negligent
misstatement. They opined that it was the duty of the bankers/defendants to take care before
making any such statement which involved huge financial matters. They also opined that the
defendants neglected their duty, and therefore the defendants were held liable.
110.
Where a person makes a mis-statement innocently, it is called “innocent misrepresentation”.
If the person making such innocent misrepresentation has no intention to deceive, the plaintiff,
or has not designed or pre-planned, he is not liable forfraud or negligence. The person making
any misstatement intentionally or negligently is held liable.
Ill
4.F.
111.
PASSING OFF
A trader knowingly or unknowingly allows his own goods on the name of other reputed firms.
Thus the goods are passed off from the trader to customer. It is called “Passing off the
goods”. It affects the good-will, sales of the reputed firms whose name is used in passing the
goods.
112.
113.
A comes to B’s shop to purchase a Philips TV. B sells a TV. to A, a locally assembled and
labelled as Philips. With a good faith on B, A purchases the TV. from B. Some days after, or
sometime after, A recognises that the TV. is not original Philips, and it is another brand. B is
liable under the tort of “Passing ofF’.
The object in recognizing the passing off goods as a tort is to protect the good-will of business
concerns. There are several provisions enacted in various statutes, viz. the Indian Partnership
Act, 1932; theTrade & Merchandize Act; Patents Act; M.R.T.P.; the Companies Act, 1956; etc.
restricting the mis-use of brand name, company’s name, good wiil of the products and
companies, etc. There are also criminal and civil liabilities imposed by the law upon the violators.
Besides these remedies, passing off has been recognized as a tort and as a complimentary to
those Statutes. Therefore, no trader is entitled to use other companies’ brand names, product
names, good will, etc. to sell his own products.
114
4.a
CONSPIRACY - DISTINCTION BETWEEN
CRIMINAL CONSPIRACY AND TORTUOUS CONSPIRACY
114.
When two or more persons agreed to commit an act causing injury or harm to the plaintiffs
property or business by unlawful means is called “Tortuous Conspiracy”.
115.
116.
Section 120-Aof the Indian Penal Code, 1860 defines “Criminal Conspiracy ”: “When two
or more persons agree to do or cause to be done — (i) an illegal act o,r (ii) an act which is not
illegal by illega! means, such an agreement is designated as a criminal conspiracy. ”
In Crofter Hand Woven Harris Tweed Co. Ltd. vs. Veiich (1942 AC 435), the House of Lords
gave the judgment in favour of the defendants, holding that there was no conspiracy between
the mill-ovyners depended upon iocal yarn and the trade
union leader.
117-
197
Unit - IV : Defamation, Negligence, Etc.
TORTS AFFECTING FAMILY RELATIONS
4.H.
TORTS AFFECTING FAMILY RELATIONS IN ENGLAND
117.
According to the Common Law, “Husband and wife are one in the eye of law”. Neither the
spouse was allowed to sue the other spouse for tortious liability. The Married Women’s
Property Act, 1882 empowered the married woman to sue any person including her husband
for the protection and security of her property. However she was not entitled to sue her husband
for the tortuous acts, even if he broke her leg.
118.
In Broom vs. Morgan (1953) 1 Q.B. 597), the Court allowed her petition and ordered for
compensation.
119.
The position has been changed now by the Law Reform (Husband and Wife) Act, 1962
(England). Now, either the spouse can sue the other spouse for the tortuous liability.
TORTS AFFECTING FAMILY RELATIONS IN INDIA
120.
BEFORE THE INDEPENDENCE: In India, different religious people are residing, viz., Hindus,
Buddhists, Sikhs, Jains and Muslims. All of them are governed by their personal laws, and not
by the Common Law.. However, in all the,religions, the wives were treated with the secondary
grade. If the husbands and their relatives did any criminal or tortuous acts, the wives were not
in a position to revolt. No legal and social remedies were available to the then aggrieved woman.
121.
AFTER THE INDEPENDENCE: After the independence, and particularly after the emerging
the Constitution of India, 1957, the woman’s position has been changing gradually. The
world-wide changes are also affecting India. The Indian Parliament has been enacting several
statutes for protecting the women in India. Now the married woman can sue her husband for
contractual and tortuous liabilities. Similarly, the husband also can sue his wife for contractual
and tortuous liabilities. All the personal laws in India permit the aggrieved party to sue the other
spouse for tortuous liabilities. Constitution of India also gives the equal rights to all, including
wife and husband. In the eye of the Law, in India, husband and wife are not one. Therefore,
marriage does not affect on the rights and liabilities of the wife and husband. The married
woman can sue her husband if her husband does any tortuous acts. Similarly, the husband can
sue his wife, if she does any tortuous acts. If any third person commits tort against the married
woman, she can sue him without joining her husband, and without seeking her husband’s
permission. Similarly, if any third person commits tort against the husband, he can sue him
without joining his wife. If a married woman commits tort against any third person, that third
person can sue the married woman without joining her husband. Similarly, if a husband commits
tort against any third person, he can sue the husband without joining his wife.
122.
“The Matrimonial Cruelty” is defined in Section 498-A of The Indian Penal Code, 1860:
subjecting her to cruelty.—
Whoever, being the husband or the relative of the husband of a woman, subjects such woman
to cruelty shall be punished with imprisonment for a term which may extend to three years and
Sec. 498-A. Husband or relative of husband of a woman
shall also be liable to fine.
123.
The Dowry Prohibition Act was enacted in 1961.
124.
Section 125 of Cr.PC. provides the legal remedy to helpless age old parents to claim maintenance
from their sons having earning capacity, but what about love and affection? It Is a million dollar
question. For the maintenance of the old parents, the Indian Parliament enacted the
Maintenance of Welfare of Parents and Senior Citizens Act, 2007.
125.
The Sexual Harassment of women at workplace (prevention, prohibition and redressal) Act,
2013.
126.
•
The Constitution of India has provided several provisions for the protection and education of
children. Linder the spirit and guidelines of the Constitution several Acts have been enacted by
the Indian Parliament. The object of the Constitution and all these Acts is to prevent criminal
and tortuous atrocities against the children in the home, schools and society. The Acts are:
Right of Children to Free and Compulsory Education Act, 2009; Prohibition of Child Marriage
Act, 2006; Protection of Children from Sexual Offences Act, 2012; Child Marriage Restraint Act,
1929; Child Labour (Prohibition and Regulation) Act, 1986; Pre-conception and Pre-Natal
Diagnostic Techniques ..Act, 1994, etc.
UNIT - V (PART - A)
EXTINCTION OF LIABILITY
In the UNfT - V (PART - A), you study,—
5.A. Extinction of Liability.
5.B. Waiver and Acquiescence.
5.C.
Release.
5.D.
Accord and Satisfaction.
5.E.
Death - Death in relation to tort - Actio Personalis Moritur Cum Persona.
5.F.
Remedies - Judicial and Extra - Judicial Remedies.
5.G. General Principles of Damages - Kinds of damages.
5.H. ASSESSMENT OF DAMAGES / MEASUREMENT OF DAMAGES,
5.H.
(i) Assessment of Damages / Measurement of Damages.
5.H. (ii) Remoteness of Damage.
5.H. (iii) The Eggshell Skull Cases.
5.H. (iv) Novus Actus. (A new act intervening.)
5.1.
Injunctions.
UNIT - V (PART-B)
LIABILITY ARISING OUT OF ACCIDENTS
(RELEVANT PROVISIONS OF THE MOTOR VEHICLES ACT)
In the UNIT - V (PART - B), you study,—
5.J.
The Motor Vehicles Act, 1988.
5.K. The Claims Tribunal / The Motor Accidents Claims Tribunals [Ss. 165-176]
5.L. Liability without Fault/Accidents by Motor Vehicles,
5.M. Kinds of Insurance under the Motor Vehicles Act,
5.N. Purpose of Compulsory Insurance for the Motor
Etc.
1988.
Vehicles.
5.0. Rights of Third Parties in the Motor Accidents under the Insurance Act.
5.P.
Claim before the Motor Accidents Tribunal.
5.A.
EXTINCTION OF LIABILITY
Q.1. Narrate an essay on ‘Extinction of Liability’
Q.2. What is meant by ‘Extinction of Liability’ in
in torts.
torts?
(SN) (AnI., 2014, D.U.)
ANSWER:
EXTINCTION OF LIABILITY
(EQ/SN)
MEANING:
Extinct, (tv.) = to destroy: or put out.
Extinction,
= the complete wiping out; annihilation.
Extinguish, (t.v.) = The words ‘extinguish’, “extinguished’, ‘extinguishment’ when used to their
exact sense express the idea of a complete wiping out, destruction, or annihilation, and not a mere
suspension. It is in this sense that the terms are properly applied to contracts, rights, titles, interests,
or a debt, or other obligation whether the effect produced is by the act of God, or by operation of law or
by the act of party.
199
Unit - V (Part - A) : Extinction of Liability
Extinguishment, (n.) = The extinction or annihilation of a right, estate, etc., by means of its being
merged in, or consolidated with another, generally a greater or more extensive, right or estate. The
Extinguishment is of various natures, as applied to various rights, viz., estates, debts, liberties, services
and ways.
EXTINCTION OF LIABILITY. (Torts) = When a liability arises in a tortuous act done by a defendant,
the liability may be completely wiped out in the following ways:—
(a) Waiver and Acquiescence.
(b)
Release.
(c) Accord and Satisfaction,
(d) Death - Death in relation to tort - Actio Personaiis Moritur
Cum Persona.
(e) Remedies - Judicial and Extra-Judicial Remedies,
(f)
Damages - Kinds of damages,
(i)
Assessment of Damages,
(ii)
Remoteness of Damage,
(iii) The Eggshell Skull Cases,
(iv) Novus Actus interveniensNOVUS ACTUS INTERVENIENS.
(g)
Injunctions,
(h) Liability Arising Out of Accidents (Relevant Provisions of the Motor Vehicles Act).
[Note: Each of these modes and concepts is explained in the following Topics. The essay questions
or short notes may be asked on “Extinction of Liability”. The student is advised to write the gist of
these Topics in a concise and summary manner keeping in view of the nature of the questions, whether
essay or short note, and also keeping in view of the time available to such question in the Examination
Hall. Gade Veera Reddy.]
5.B.
WAIVER AND ACQUIESCENCE
Q.1.
Narrate about “Waiver and Acquiescence” of a tortuous iiability?
Q.2.
Waiver and Acquiescence from tortuous iiabiiity.
Q.3.
Acquiescence.
Q.4.
Associated Hotels of India Ltd. vs. S.B. Sardar
(SN) (AnI., 2010, N.U.)
(SN)
Ranjit Singh - (AIR 1968 SC 933).
(SN)
ANSWER:
WAIVER AND ACQUIESCENCE
(EQ/SN)
MEANING:
Waiver, (n.) = The intentional or voluntary relinquishment of a known right; the act or an action of
waiving. A waiver is the renunciation or abandonment of a right, whereby right is lost or extinguished
and may be either express or implied. A waiver is an intentional relinquishment of a known right or
such conduct as warrants an inference of the relinquishment of such right.
To constitute ‘waiver’, there must be an intentional relinquishment of a known right or the voluntary
relinquishmentorabandonmentof a known existing legal right, orconductsuch as warrants an inference
of the relinquishment of a known right or privilege.
A waiver is an intentional relinquishment of a known right. There can be no waiver unless the person
against whom the waiver is claimed had full knowledge of his rights and of facts enabling him to take
effectual action for the enforcement of such rights. (Associated Hotels of India Ltd. vs. S.B. Sardar
Ranjit Singh - AIR 1968 SC 933)
Waiver is an agreement to release or not to assert a right. (Satyanarayana vs. YellojI Rao - AIR 1965
SC 1405)
Waiver of tort. = A person upon whom a tort has been committed and who brings an action for the
benefits received by the tortfeasor is sometimes called to ‘waive the tort’.
Acquiesce, (v.t.) = To give siient or passive assent to; to tacitly agree to; resting satisfied with any
state of things.
Acquiescence, (n.) = A resting satisfied with or submission to an existing state of things. The term
. .
implies both, knowledge and power to contract onthe part of the person acquiescing. -
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The Law of Torts
The action or condition of acquiescing: the assent to an infringement of rights, either express or implied
from conduct, by which the rights to equitable or discretionary relief may be
from silence; a tacit encouragement.
lost; a consent inferred
Acquiescence imports full knowledge.
Acquiescence is the common element in a somewhat indefinite group of equitable estoppels, constituted
by the fact that the person entitled has, as it is said, ‘slept upon his rights’, and by his conduct at the
time of a breach of them, or subsequently thereto, has, with full knowledge, both of his own rights and
of the acts which infringe them, led that person responsible for the Infringement to believe that he has
waived or abandoned his rights. (E.ncy. of the Laws of England)
5.C.
RELEASE
Q.1. Narrate about “Release” of a tortuous liability?
Q.2.
Release.
(SN) (June, 2011, O.U.) (AnI., 2012, A.U.)
Q.3. Cutler vs. McPhail (1962) 2 QB 292).
(SN)
Q.4. Shiv Sagar Lai vs. Mata Din (AIR 1949 All. 105).
(SN)
ANSWER:
RELEASE
(EQ/SN)
MEANING: Release, (n. & v.t.) = the action of releasing or the state of being released; to set free from
restraint, confinement or servitude; to set at liberty: to give up a claim, right, title in favour of another; to
free a thing from attachment.
A release is a discharge of an existing obligation or right of action by the person in whom the obligation
or right is vested to the person against whom it exists.
Cutler vs. McPhail (1962) 2 QB 292)
(SN)
Brief Facts: The defendant wrote a defamatory ietter containing contents against the plaintiff, and he
sent two copies - one “The Villager” magazine of Pinner Association; and another to the officer of
Pinner Association. The Villager magazine published the letter. The plaintiff sued the editor of the
village, the officials of Pinner Association and the defendant for defamation. The editor of the village
and the officials of Pinner Association compromised with the plaintiff and published apology in “The
Villager”. On compromise, the editor of the viiiage, and the officials of the Pinner Association were
acquitted from the charge. However, the defendant was not acquitted. The defendant contended that
the release of the other joint tort-feasors amounted to be the release of him.
JUDGMENT: The Queen Bench held that since the release of the other joint tort-feasors extinguished
the cause of action, therefore, it aiso extinguished the cause of action against the defendant, and he
was released from the liability.
PROBLEM: The plaintiff sued several defendants for defamation, and one of them was a minor. The
minor-defendant requested the plaintiff and made a compromise. The plaintiff and the minor filed a
compromise petition before the Court, and the Court discharged the minor. Remaining defendants
pleaded that since one of the joint tort-feasors discharged, they were also entitled to be discharged
from the liability.
SOLUTION: In Shiv Sagar Lai vs. Mata Din (AIR 1949 All. 105), the Allahabad High Court held that
the intention of the plaintiff seemed to continue. He generously excused the minor joint tort-feasor and
compromised with him. Therefore it did not amount to release of the other joint tort-feasors.
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Unit - V (Part - A) : Extinction of Liability
5.D.
ACCORD AND SATISFACTION
Q.l.
Narrate about “Accord and Satisfaction” of a tortuous liability?
Q.2.
Accord and Satisfaction.
Q.3.
Satisfaction.
(SN) (AnI., 2009, K.U.)
(SN)
Q.4. Ram Kumar vs. Ali Hussain (1909 ILR 31 All. 173). (SN)
Q.5.
(SN)
Merry weather vs. Nixan (1799) 8 TR 186).
ANSWER:
ACCORD AND SATISFACTION
(EQ/SN)
MEANING: Accord. = Accord is an agreement between two or more persons, where anyone is
injured by a trespass, or offence done, or on a contract, to satisfy him with some recompense, which
accord, if executed and performed, shall be a good bar in law, if the other party after the accord
performed brings an action for the same trespass etc. {Termes de la le,y Tomlin)
Satisfaction, (n.) = the act of satisfying or state of being satisfied; the fulfillment of a desire; the
pleasure obtained from such fulfillment; a source of fulfillment; reparation or compensation fora wrong
done or received.
Accord and Satisfaction is a contract iaw concept about the purchase of the release from
a debt obligation. The payment is typically less than the amount owed and is hot paid by the actual
performance of the original obligation. The accord is the agfebrndht to discharge the obligation and
the satisfaction is the legal “consideration” which binds the parties to the agreement.
If a person is sued over an alleged debt, that person bears the burden of proving the affirmative defense
of
accord and satisfaction.
Accord and satisfaction is a settlement of an unliquidated debt. For example, a builder is contracted
to build a house with the house owner for Rs. 30,00,000/-. The contract called for Rs. 30,00,000/- prior
to starting construction, to disburse Rs. 20,00,000/- during various stages of construction, and to
make a final payment of Rs. 10,00,000/- at completion. At completion, the house owner complained
about inferior work quality and refused to make the final payment. After a mutual settlement agreement,
the builder accepted Rs. 5,00,000/-instead of Rs. 10,00,000/-as full payment. Thereby, a new contract
was formed by offer, acceptance, and consideration! The consideration is that for a Rs. 5,00,000/savings. The builder gives up his right to full price to avoid suit for inferior performance. When accord
and settlement attained, the house owner has given up his right to sue for specific performance.
Another example would be where a banker agrees to loan Rs. 10,00,000/- at 10.00% interest per
annum for 10 years to the purchase a house. There is also a penalty clause for late payments. The
loan amount and interest are payable in monthly installments. The borrower fails some installments.
After the completion of ten years, the borrower is still due of Rs. 2,00,000/- towards the principal
loan, and Rs. 2,00,000/- towards the interest and penal interest. The banker/lender proposes one
time and final settlement and offers to wind off of Rs. 2,00,000/- towards the interest and penal
interest, and the borrower should pay Rs. 2,00,000/- towards the principal loan. It is called as the
Accord between the borrower and the lender. The borrower pays Rs. 2,00,000/- and the banker/
lender satisfies and has given up his right to sue for Rs. 2,00,000/- towards the interest and penal
interest. This is called as the satisfaction.
If the banker/lender later sue for breach of contract, the settlement agreement (offer and acceptance
of Rs. 2,00,000/- towards the interest and penal interest)
constitutes an accord and satisfaction
and is a valid defence to the borrower in a wouid be lawsuit.
The accord agreement must be transacted on a new agreement. It must therefore have the
essential terms of a contract, (parties, subject matter, time for performance, and consideration). If
there is a breach of the accord there will be no “satisfaction” which will give rise to a breach of
accord. For instance, in the above given example, after attaining accord and settlement, the borrower
does not pay Rs. 2,00,000/- towards the principal loan. It means entire accord and settlement fails
and the banker/lender has right to sue the borrower under either the original contract or the accord
agreement for the entire debt Rs. 4,00,000/- (principal, interest and penalty) under the Specific
Performance of Contract (of the Indian Contract Act, 1872, the Specific Relief Act, 1963 and the
Civil Procedure Code, 1908).
In an accord contract it is typicai that the consideration supplied is less than bargained for in the
original contract. In accord contracts that require an amount of consideration that is less than the
original, the consideration must be of a different type, i.e. instead of money, debtor offers a car or a
boat.
' '
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The Law of Torts
A valid accord does not discharge the prior contract; instead it suspends the right to enforce it in
accordance with the terms of the accord contract, in which satisfaction or performance of the contract
will discharge both contracts (the original and the accord). If the creditor breaches the accord, then
the debtor will be able to bring up the existence of the accord in order to enjoin any action against him.
PROBLEM: The defendants twelve in number assaulted the plaintiff. The plaintiff sued them for
assault and defamation, and prayed the Court to grant compensatiori an amount of Rs. 325/-. While
the proceedings were pending, one of the 12 defendants compromised with the plaintiff and paid Rs.
25/-as his share. On compromise petition, the Court released that defendant. Remaining 11 defendants
urged that since one of them was released therefore they were also entitled to be released.
SOLUTION: In Ram Kumar vs. All Hussain (1909ILR31 All. 173), the Privy Council held that there
was no full satisfaction of the plaintiffs claim, therefore, they were not entitled to be discharged.from.
their liability.
PROBLEM: Merryweather and Nixan were the joint tort-feasors in a case sued by one Starkey.
Merryweather paid 840 pounds as damages as a total satisfaction of the claim in the Court. Both of
them were discharged from the tortuous liability by the Court. Later Merryweather demanded Nixan to
contribute 420 pounds towards Nixan’s share, who refused. Decide.
SOLUTION: In Merryweather vs. Nixan (1799) 8 TR 186), the Court gave the judgment that
Merryweather was not entitled to get the contribution.
5.E.
Q.1.
DEATH - DEATH IN RELATION TO TORT ACTIO PERSONALIS MORITUR CUM PERSONA
Discuss “Actio personalis moritur cum persona”. What are the relevant statutes relating to it?
(July, 2009, O.U.) (AnI., 2010, B.U.) (AnI., 2011, K.U.) (AnI. 2013, M.U.) (AnI., 2014, D.U.)
Q.2. What are the exceptions to "Actio personalis moritur cum persona”? (AnI., 2011, A.U.) (AnI., 2011, B.U.) (AnI., 2012, M.U.)
Q.3.
Death in relation to Tort.
(SN)
Q.4.
Effect of Death on the suits.
(SN)
Q.5.
“Actio personalis moritur cum persona”.
Q.6.
Q.7.
(SN) (AnI., 2010, N.U.) (Anl., 2011, B.U.) (AnI., 2012, P.U.)
Contract - an exception to “Actio personalis moritur cum persona”.
(SN)
Unjust Enrichment - an exception to “Actio personalis moritur cum persona”.
(SN) (AnI., 2008, M.U.)
Q.8. # Sherrington’s Case (1582 Sav. 40).
(SN)
Q.9.
(SN)
Shortening of the expectation of life.
Q.10. Flint vs. Lovell (1935) 1 KB 354).
(SN)
Q.11. Gobald Motor Service vs. Veluswami (aIr 1961 SC 1).
(SN)
Q.12. Rose vs. Ford (1937 AC 826).
(SN)
Q.13.. Is cause of death actionable?
(SN)
Q.14. # Baker vs. Bolton (1808) 1 Camp. 493:10 R.R. 734).
(SN) (Anl., 2010, S.V.U.) (Anl., 2012, S.K.U.)
Q.15. Death caused due to the breach of contract.
(SN)
Q.16. Jackson vs. Watson (1909) 2 KB 193).
(SN)
Q.17. Statutes imposing compulsory tortuous liability.
(SN)
Q.18. Period of Limitation for filing suits for compensation.
(SN)
ANSWER:
DEATH - DEATH IN RELATION TO TORT ACTIO PERSONALIS MORITUR CUM PERSONA
(EQ/SNs)
INTRODUCTION: It is the general principle of the law that the personality of a human being exists on
his birth, and ceases on his death. The dead rnan has no rights because he has no interests. He
could not remain as the proprietors of his assets. Dead man is no longer person in the eye of the law.
The common law doctrine says: “Actio personalis moritur cum persona, It means “Personal
action dies with person”. However, in some of the torts, the action can be taken by the dependents
of the deceased. In some of the torts, the action dies with the person. The law relating to death in
tortuous liability can be studied under the following two heads:
1.
Effect of death on the suits; and
2.
Is causing of death actionable?
1.
EFFECT OF DEATH ON THE SUITS
fSN)
“Actio personalis moritur cum persona.” This legal maxim means “A personal right of action dies
with the person”. In the criminal law, this maxim applies absolutely.
Unit - V (Part - A) : Extinction of Liability
203
Examples:
(a) A killed B. Police filed a criminal case against A. While the proceedings were continuing, Adied.
The criminal case is dosed,
(b) A assaulted B. B filed a private complaint against A in the Court. While the proceedings were
before the Court, Adied. Case is closed.
EXCEPTIONS: There are a few exceptions to the above doctrine. They are:—
CONTRACTS
1.
Contractual obligations can be enforced by or against the legal representatives of the parties to the
contract. Example: A has a house, and entered into a contract with B to sell it to B for Five lakhs, and
obtained fifty thousand as an advance. A dies later. Legal heirs of A shall have to perform that contract.
Else B has a right to sue the legal heirs for the specific performance of the contract.
If the contract pertains to personal services, such as acting, writing a book, painting a picture, etc., the
legal representatives are not bound. Example: A was a cine actor. He entered into a contract to act '
in a picture with B-a cine producer, and obtained ten lakh rupees for it. While the picture is in progress,
A dies. B cannot sue the legal representatives of A either for performance of the contract or to return
the amount.
2.
UNJUST ENRICHMENT
(SN)
It means the unjust obtaining of money benefits or property at the expense of another. Example: A has
a house in Bangalore. He went to America for some months. B occupied the house. Fbreviction, A
sued B. B died during the proceedings. A proved that the house belonged to him. The heirs of B
cannot plead that B occupied and enjoyed the house, and they have a right to have it.
# Sherrington’s Case (1582 Sav. 40)
(SN)
(Actio personalis monites cum persona)
In this case, the deceased/defendant had occupied certain properties of the plaintiff, and died during
the proceedings. The successors claimed the properties. The Court held that where a person acquires
some property by wrongful means, he cannot pass the benefits of that property to his successors and
legal representatives. It ordered the successors of the defendant/deceased to return the properties to
the plaintiff.
3.
SHORTENING OF THE EXPECTATION OF LIFE
(SN)
When a normal expectation of life is shortened as a result of the injury is called “Shortening of the
expectation of life”. The defendant, who causes such injury by an accident, is held liable to pay
compensation to the dependents of the deceased. This principle was adopted in Flint vs. Lovell
(1935) 1 K.B. 354 case.
Flint vs. Lovell (1935) 1 KB 354)
(SN)
(Actio personalis monites cum persona)
The plaintiff was aged 69 years, but was very active and energetic. The defendant negligently caused
an accident to the plaintiff. After accident, the doctors told that he could not survive for more than one
year. Due to the accident, he died within one year. The Court granted compensation for shortening of
the expectation of life.
Gobald Motor Service vs. Veluswami (AIR 1961 SC 1)
(SN)
(Actio personalis monites cum persona)
Brief Facts: One Rajaratnam, aged 34 years, was travelling in a bus belonging to Gobald Motor
Service Ltd. The driver drove the bus speedily, negligently and rashly. In that speed, he lost his control
over the bus and dashed a big tamarind tree, and there after stopped at a distance of 25 feet away
from that tree, hitting a big stone. All the passengers received serious injuries. Rajaratnam died after
three days after the accident. Veluswami, the dependant of the deceased sued the defendants for
damages. The defendant pleaded contributory negligence. The plaintiff pleaded “Res ipsa loquitur".
JUDGMENT: The Court awarded Rs. 5,000/- as damages for the loss of expectation of life.
Principles: 1. The Supreme Court observed: “The general principle is that the pecuniary loss can be
ascertained only by balancing on the one hand the loss to the claimants of the Mure pecuniary benefit
and on the other any pecuniary advantage which from whatever source comes to them by reason of
the death, that is, the balance of loss and gain to a dependant by the death, must be ascertained. ”
2. The capitalised value of the income of the victim subject to relevant deductions would be loss
caused to the estate of the deceased.
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The Law of Torts
3. Damages allowed for the benefit of the estate under the head pain and suffering and loss of
expectation of life are not to be deducted from the damages allowed to the dependents under the Motor
Vehicles Act. [Also refer to Topic “Res ipsa loquitur”.]
Rose vs. Ford (1937 AC 826)
(SN)
(Actio personalis monites cum persona)
Brief Facts: The plaintiffs daughterwasaged 23 years. The defendant negligently caused an accident
causing severe injuries to her. Two days after the accident, her leg was removed. Four days after the
operation, she died. The plaintiff sued the defendant claiming .compensation under shortening of the
expectation of life.
JUDGMENT: The House of Lords gave the judgment awarding compensation to the plaintiff, and
opined that the compensation was awarded on account of pain and suffering, loss of leg and shortening
in the expectation of her life.
2.
IS CAUSING OF DEATH ACTIONABLE?
(SN)
Causing of death is a criminal matter, and it shall be settled by the criminal courts. The civil courts are
entitled to try smaller injuries, and tortuous cases. The civil courts are not entitled to try the causing of
death.. It is the basic principle. If a person was died by the act of defendant, can the dependents sue
him for damages and loss caused to him by the death?
This was decided in the famous case-law
Baker vs. Bolton.
# Baker vs. Bolton (1808) 1 Camp. 493:10 R.R. 734)
(SN)
(Actio personalis monites cum persona)
Brief Facts: The plaintiff and his wife were travelling in a coach of the defendants. Due to the negligence
of the defendants, it met an accident, resulting severe injuries to the plaintiff and his wife. Both of them
were admitted in hospital. One month after his wife died. The plaintiff sued the defendant for recovering
damages for the loss of her life.
JUDGMENT: The Court granted compensation for injury to the plaintiff and also for the loss of his
wife’s society and distress from the date of accident to the date of her death. The Court refused to
grant any compensation for her loss after death.
Exceptions to Baker vs. Bolton Rule: In India, this Rule is old-dated. The Supreme Court of India
has evolved more bold steps for the welfare of the dependants/aggrieved persons. In M.C. Mehta vs.
Union of India case, the rule of “Absolute Liability” has been introduced in place of “Strict Liability”/
Rylands vs. Fletcher Rule. Hence the maxim “Actio personalis moritur cum persona” and the
Rule in Baker vs. Bolton are out-dated principles. These principles have been modified from time to
time by the effect of several decisions and statutes.
There are several environmental cases coupled with tortuous liability, adopted the principles of Absolute
Liability. The Supreme Court evolved the principles of Polluter Pays Principle, Precautionary
Principle, Sustainable Development, etc. in the Environmental and tortuous liability cases. The
Indian Parliament enacted the Public Liability Insurance Act, 1991, the Environmental Tribunal
Act, 1995, the Environmental Appellate Tribunal Act, 1997, etc. [Refer to the Environmental Law.]
Now pecuniary compensation is paid to the dependents in appropriate cases. This compensation is
intended to provide the livelihood and maintenance to the dependants. The compensation is not intended
for mental suffering and anguish. If the dependants do not suffer pecuniary loss, no compensation is
granted. In the following exceptions the pecuniary compensation is granted to the dependants.
I. Death caused due to the breach of contract: If there is a contract between the defendant and the
deceased, and due to the failure of the performance of the contract the death caused, then the
dependants can claim compensation.
Jackson Vs. Watson (1909) 2 KB 193)
(SN)
(Actio personalis monites cum persona)
Brief Facts: The plaintiff purchased a tin of Salmon food from the defendant. His wife consumed the
contents of the tin, the contents of which were deteriorated, poisonous, and became injurious to human
beings. She died due to that poisonous salmon.
JUDGMENT: The Court awarded damages to the plaintiff opining that there was a contract between
the manufacturer and his customers. He must be very careful while supplying the food. He failed in
supplying good salmon. Hence he breached the contract,
and thus he was held liable,
ii. Statutes: In all the countries, the Parliament enacts certain laws for safeguarding the interests of
the people. In such statutes, if the Parliament provides certain provisions imposing the liability upon
205
Unit - V (Part - A) : Extinction of Liability
the persons, they are liable to pay compensation to the dependents of the deceased, even though
there is negligence or not. Examples of such Acts in India are - the Workmen’s Compensation Act,
1923; the Carriage by Air Act, 1972; the Factories Act, 1948; the Fatal Accidents Act, 1855; the Coal
Mines Act; the Legal Representatives Suits Act, 1855; the Indian Succession Act, 1925; the Motor
Vehicles Act, the Public Liability Insurance Act, 1991; the Environment Tribunal Act, 1995; the Environment
Appellate Tribunal Act, 1997, etc. The provisions of the concerned Acts lay down that the owner of the
factory, carrier, vehicle, etc. is liable to pay compensation to the dependants of the deceased.
The object of such provision is social welfare and protection to the poor dependants of the deceased.
The spouse, parents, children, brothers and sisters are treated as the dependants. Each Act gives
particulars of priority of the dependants in lists. It also varies according to the personal laws.
Period of Limitation: Action fortort must be brought within the prescribed statutory period. OthenA/ise
the right to sue is barred. The Indian Limitation Act, 1963 lays down the respective periods of
limitation for different torts within which the aggrieved has to sue for damage.
5.F.
REMEDIES - JUDICIAL AND EXTRA-JUDICIAL REMEDIES
Q.1.
What is meant by ‘Remedies’ available against tortuous liabilities? What are judicial and extra-judicial remedies available against
torts?
(June, 2009, O.U.) (AnI., 2010, A.U.) (AnI., 2011, K.U.) (Anl., 2012, B.U.) (AnI., 2013, M.U.) (AnI., 2014, P.U.)
Q.2.
What are the judicial remedies against the torts?
Q.3.
What are the extra-judicial remedies against the torts?
Q.4.
Remedies.
(Anl., 2012, D.U.) (Anl., 2013, G.U.)
(Anl., 2011, S.V.U.) (Anl., 2012, N.U.)
(SN) (Sept., 2014, O.U.)
Q.5.
Remedies against tortuous liabilities.
(SN)
Q.6.
Judicial Remedies against tortuous liabilities.
(SN)
Q.7.
Extra-Judicial Remedies against tortuous liabilities.
Q.8.
DISTINCTION BETWEEN JUDICIAL AND EXTRA-JUDICIAL REMEDIES.(SN) (May, 2008, O.U.) (Anl., 2011, K.U.) (Anl., 2012, M.U.)
(SN) (May, 2009, O.U.)
ANSWER:
REMEDIES - JUDICIAL AND EXTRA-JUDICIAL REMEDIES
(EQ/SNs)
MEANING: A remedy is a means employed to enforce a right or redress an injury. It is a mode
prescribed by law to enforce a duty or redress a wrong. It gives relief to the party aggrieved. It
imposes the obligation on the wrong doer. It Is a maxim of Law, that whenever the Law gives anything.
It gives a Remedy for the same. “Ubi jus ibi remedium.” (There is no wrong without a remedy.)
Tort is a civil wrong. By the act of the defendeht, the plaintiff may Suffer physical, psychological or
pecuniary loss. The defendent is held for the consequences, whether he does the wrong intentionally
or accidentally. The law provides certain remedies to the aggrieved person.
Remedy is a means by which the violation of a right is prevented, redressed, or compensated. Remedies
are of four kinds:—
(1) by act of the party injured;
(2) by operation of law;
(3) by agreement between the parties and
(4) by judicial remedy, e.g., action orsuit.
The last are called judicial remedies, as Opposed to the first three ciasses, which are extrajudicial.
Therefore the remedies are broadly divided into two groups;
(1) Judicial Remedies; and
(2) Extra-Judicial Remedies.
1.
JUDICIAL REMEDIES
(SN)
MEANING: Judicial Remedies are administered by the Courts.of Justice, or by judicial officers legally
empowered for that purpose, the aggrieved persPh/plaintiff approaches the Court of Law for redressal.
Fie moves the Court by a petition. After due enquiry, perusing evidences oh record, the Court gives
appropriate orders.
Damages, Injunctions and Specific Performance or Specific Restitution of Property are known as the
“Judicial Remedies”. These are also known as the “Legal Remedies”.
The judicial Remedies are available in three modes. They are: (a) Damages; (b) Injunctions; and
(c) Specific Restitution of Property.
206
The Law of Torts
(a) DAMAGES: [Refer to Topic “Damages”.]
(b) INJUNCTIONS: [Refer to Topic “Injunctions”.] and
(c) SPECIFIC RESTITUTION OF PROPERTY.
2.
EXTRA-JUDICIAL REMEDIES
(SN)
Extrajudicial, (adj.) = That which is done, given, or effected outside the course of regular judicial
proceedings. Not founded upon, or unconnected with, the action of a Court of Law, as in extrajudicial
evidence or an extrajudicial oath.
That which, though done in the course of regular judicial proceedings, is unnecessary to such
proceedings, or interpolated, or beyond their scope, as in an extrajudicial opinion.
An extrajudicial statement is an out-of-court utterance, either written or oral. When offered into court
as evidence, it is subject to the Hearsay ruie and its exceptions.
An extrajudicial oath is one that is not taken during judicial proceedings but taken formally
before a proper officer or magistrate, such as a Notary Public.
The first three classes above stated, i.e. (1) by act of the party injured; (2) by operation of law; and
(3) by agreement between the parties are known as the
Extra-Judicial Remedies.
“By the act of the party injured/aggrieved” include,—
(i)
Self defence: The use of force to protect oneself, one’s family, or one’s property from a real or
threatened attack,
(ii) Expulsion of trespassers: Forcibly evicting the trespasser.
(Hi)
Reception of chattels: Chattel means movable or transferable property; personal property,
(iv) Re-entry of land,
(v) Abatement of nuisance: Abatement is the act of eliminating or nullifying; the act of lessening
moderating,
or
(vi) Distress damage feasant: The right to seize animals or inanimate chattels that are damaging
or encumbering land and to keep them as security until the owner pays compensation.
Damages, Injunctions and Specific Performance or Specific Restitution of Property are known as the
“Judicial Remedies”. Sometimes, the person aggrieved may have recourse to get the remedies
outside the Court of Law. These remedies are out-side jurisdiction and procedure of the Courts.
These remedies are known as the “Extra Judicial Remedies”. Examples: Self-help, re-entry of
land, reception of chattels, distress damages feasant and abatement of nuisance, etc.
(a) Expulsion of trespasser: The rightful owner of property is entitled to use reasonable force in
ejecting a trespasser. However such force should not be more than necessary. It must not be excessive
and violent,
(b) Re-entry on land: A person who is wrongfully dispossessed of land may re-take possession of it,
using reasonable force.
(c) Recaption of goods: A person, who is entitled to the immediate possession of chattels. may
recover them from any person who has them in actual possession and detain them, provided that
such possession was wrongful in its inception.
(d) Distress damage feasant: [Refer to Topic “Owner’s liability for Animals”.]
(e) Accord and Satisfaction: [Refer to Topic “Accord and Satisfaction” in “Discharge of Tort”.]
(f) Abatement of nuisance: In case of nuisance, private or public, under certain circumstances and
subject to limitation, the injured party has a right to remove it without recourse to legal proceedings.
But the removal must be - (i) peaceable; (ii) without danger to life or limb; and (iii) if it is necessary to
enter another’s land abate the nuisance.
Example: (a) The branches of trees of A are overhanging on B’s house causing damage to the roof.
B is entitled to cut the branches, (b) As cattle are grazing B’s crops. B can drive them away. [Refer
to Topic “Nuisance”.]
Unit - V (Part - A) ; Extinction of Liability
207
DISTINCTION BETWEEN EXTRA-JUDICIAL REMEDIES AND JUDICIAL REMEDIES (EQ/SN)
EXTRA-JUDICIAL REMEDIES
1.
2.
JUDICIAL REMEDIES
They do not require process of law.
1.
They require process of law.
Sometimes the plaintiff may use reasonable
2.
There is no chance of using force.
force.
3.
Immediate relief is available.
3.
Some delay is caused to get the relief due to
the procedures of the Courts.
In most of the remedies compensation will not
4.
4.
be available.
5.
In most of the remedies, compensation and
other reliefs are available.
The extra-judicial remedies are accepted by
5.
All judicial remedies are accepted by the law.
6.
The Judicial Remedies are: (a) Damages;
(b) Injunctions; and (c) Specific Restitution of
law, until the remedies are within the
reasonable limits.
6.
Extra-judicial remedies are; (a) Expulsion of
trespasser: (b) Re-entry on land; (c) Recaption
of goods; (d) Distress damage feasant;
Property or Specific Performance.
(e) Abatement of nuisance.
5.G.
Q.1.
GENERAL PRINCIPLES OF DAMAGES - KINDS OF DAMAGES
Q.2.
What are the general principles of damages? What are the kinds of damages?
(June, 2007, O.U.) (AnI., 2008, M.U.)
(AnI., 2009, D.U.) (AnI., 2010, B.U.) (AnI., 2011, G.U.) (AnI., 2012, D.U.) (AnI., 2012, S.K.U.)
(AnI., 2012, S.V.U.) (AnI., 2014, Amb.U.)
General Principles of Damages.
(SN)
Q.3.
Kinds of Damages.
(SN)
Q.4.
Damages.
(SN)
Q.5
DISTINCTION BETWEEN‘DAMAGE’AND‘DAMAGES’(SN) (AnI., 2008, B.U.) (AnI., 2009, G.U.) (AnI., 2011, A.U.) (AnI., 2012, N.U.)
Q.6.
General Damages.
(SN)
Q.7.
Special Damages.
(SN)
Q.8.
Nominal Damages.
(SN)
Q.9.
Contemptuous Damages.
(SN)
Q.10. Compensatory Damages.
(SN)
Q.11. Aggravated Damages.
(SN)
Q.12. Exemplary Damages.
(SN)
Q.13. Vindictive Damages.
(SN)
Q.14. Punitive Damages.
(SN)
Q.15. Prospective Damages.
(SN)
Q.16. Future Damages.
(SN)
Q.17. Injunctions.
(SN)
Q.18. Specific Restitution of Property.
(SN)
[Also refer to Topic “Measurement of Damages’’.]
ANSWER:
DAMAGES - KINDS OF DAMAGES
(EQ/SN)
Judicial Remedies are administered by the Courts of Justice, or by judicial officers legally empowered
for that purpose. The aggrieved person/plaintiff approaches the Court of Law for redressal. He moves
the Court by a petition. After due enquiry, perusing evidences on record, the Court gives appropriate
orders.
This Topic, the General Principles of Tort Damages and the foregoing Topic the Assessment/
Measurement of Damages discuss the general principles relating to the recovery of compensatory
and nominal damages in tort actions and the general categories of damages, the requirements for
pleading damages, and the role of the Court in assessing damages. The two Topics consider the
grounds on which trial and appellate courts may amend orset aside a damage award, such as prejudice,
mistake of law or fact, insufficient evidence and quantum of damages to be awarded to the aggrieved
party.
Specifically, this Topic discusses the nature and purpose of compensatory damages, as well as the
classification of compensatory damages, and consideration of recoverable losses and the requirement
of mitigation of damages. It discusses the roles of nominal and punitive damages. Both the Topics
208
The Law of Torts
discuss about the pleading tort damages including notice requirements, measure of damages issues,
amount of damages, and pleading compensatory damages. It addresses remedies for excessive or
inadequate awards of damages. The Topics address interest on an award including prejudgment and
post judgment interest, as well as reduction of future damages to present value. The
between tort and contract damages is also explained.
comparison
The judicial Remedies are available in three modes. They are: (a) Damages; (b) Injunctions; and
(c) Specific Restitution of Property.
DISTINCTION BETWEEN ‘DAMAGE’ AND ‘DAMAGES’
(SN)
The remedies are awarded by way of damages/compensation to the aggrieved party. There is a
difference between “Damage” and “Damages”.
The term “Damage” (singular) means “an injury or ioss, which results from an unlawful act,
injury or deterioration, caused by the negligence, design, or accident of one person to another”.
The term “Damages” (piural) means “compensation in money for a loss or damage caused by
another’s act”.
By the nature, damages can be categorised in two classes. They are:
(i)
General Damages;
(ii)
Special Damages,
(i) General Damages: These damages result from the wrong complained of, and which therefore
need not be set out in the plaintiff’s pleadings. Example: In cases of personal injury resulting from a
negligent act, general damages may be recovered for pain and suffering, injury to health and personal
inconvenience. The Law presumes them from the wrong complained itself. The Law does not depend
upon the plaintiffs pleadings,
(ii) Special Damages: For this kind of damages, the Law does not presume. The plaintiff must
expressly plead and prove his sufferings. Examples: Slander is not actionable without proof of special
damage. Ex.: slander of title, slander of goods, malicious falsehood, etc. In these damages, it shall
not be necessary to allege or prove special damage if the words are calculated to cause pecuniary
damage to the plaintiff and are published in writing or in other permanent form; or are calculated to
cause pecuniary damage to the plaintiff in respect of any office, profession, calling, trade or business
held or carried on by him. An action will lie for a public nuisance at the instance of a person who has
suffered special damage (over and above that suffered as a member of the public) as a result of the
nuisance.
The scope of damage extends the notion of it beyond a man’s goods. His life, his limbs, his liberty, an
exemption from pain, his character or reputation, his rights, etc. are all of them his own in a distinct and
proper sense. The loss or diminution of any of them gives him a right to demand compensation
(damages) from the wrong-doer. If he proves it in the Court, the Court awards damages as a remedy.
In the Law of Torts, payment of damages is the most important remedy. Damages are of various
kinds. The important damages are given hereunder as follows: (i) Nominal Damages; (ii) Contemptuous
Damages; (iii) Compensatory, Aggravated and Exemplary Damages; and (iv) Prospective Damages,
(i) NOMINAL DAMAGES: We have read “Injuria sine damno”. This maxim means, even though
there is no harm occurred to the plaintiff, but only his rights are violated. In that case, he is entitled for
compensation. In Ashby vs. White case, the plaintiff was awarded damages of 5 pounds. It is a
small amount. However, by granting this nominal amount, the Court recognizes the right of the plaintiff.
[Refer to Topic “Injuria sine damno”.]
(ii)
CONTEMPTUOUS DAMAGES
(SN)
Contemptuous, (adj.) = hateful; to be rejected.
The Court forms a very low opinion on the plaintiff’s claim. Even though, the plaintiff suffers actual
loss, only meager compensation is awarded to him. In nominal damages, the plaintiff does not suffer
harm or loss, but his right only is affected. However, some nominal damages are awarded to him
recognising his right. In Contemptuous Damages, the plaintiff suffers harm or loss by his own negligence
as in contributory negligence, volenti non fit injuria, etc. Therefore, in certain circumstances, the Court
rejects the claim of the plaintiff, or allows a very little amount of damages.
(iii)
COMPENSATORY, AGGRAVATED AND EXEMPLARY DAMAGES
(SN)
Compensatory Damages: The injured party is compensated with equal amount, which in fact he
suffered by the act of the defendant. Compensatory damages are equivalent to the actual loss in
respect to which they are allowed. The Court orders the defendant whose acts or omissions have
caused loss or injury to the plaintiff in order that thereby the injured plaintiff may receive equal value for
his loss, or be made whole in respect of his injury. In Law of Torts “compensation and not forfeiture”
is a favourite maxim with Courts of equity.
Unit - V (Part - A) : Extinction of Liability
209
AGGRAVATED DAMAGES: The Courts award more compensation than the quantity of harm or loss
caused to the plaintiff. Examples: Insult, slander of title, slander of goods, etc.
Exemplary Damages / Punitive Damages / Vindictive Damages:
Punitive Damages are also
called as the Exemplary Damages or the Vindictive Damages. Punitive Damages or Exemplary
Damages are damages intended to reform or deterthe defendant and others from engaging in conduct
similar to that which formed the basis of the lawsuit.
Punitive Damages or Exemplary
Damages are damages intended to reform or deter the defendant and others from engaging in conduct
similar to that which formed the basis of the lawsuit. Although the purpose of punitive damages is not
to compensate the plaintiff, the plaintiff will receive all or some portion of the punitive damage award.
Punitive Damages are often awarded where compensatory damages are deemed an inadequate
remedy. The Court may impose them to prevent under-compensation of plaintiffs, to allow redress for
undetectable torts and taking some strain away from the criminal justice system. However, the
punitive damages awarded under the Court systems that recognize them may be difficult to enforce
in jurisdictions that do not recognize them. For example, punitive damages awarded to one party in a
US case would be difficult to get recognition for in a European Court, where punitive damages are
most likely to be considered to violate order public.
Because they are usually paid in excess of the plaintiffs provable injuries, punitive damages are
awarded only in special cases, usually under the tort law, where the defendant’s conduct was egregiously
insidious. Punitive damages cannot generally be awarded in the contract disputes. The main
exception is in insurance bad faith cases in the United States, where the insurer’s breach of contract
is alleged to be so egregious as to amount to a breach of the “implied covenant of good faith and fair
dealing,’’ and is therefore considered to be a tort cause of action eligible for punitive damages (in
excess of the value of the insurance policy).
These are awarded, rather to express indignation at the defendant’s wrong than as representing the
plaintiffs loss. Where owing to a deliberate and wanton assault by the defendant, the plaintiff loses his
eye-sight and has suffered considerable pain and loss of earning, and in such circumstances, substantial
and exemplary damages shall be awarded. These damages are awarded in excess of the material
loss suffered, by the plaintiff with a view to prevent similar behaviour in future. It is just like a punishment
of defendant. Therefore, these damages are known as “Exemplary Damages”. These are also
called as “Punitive Damages” or “Vindictive Damages”. The object of awarding these damages
is to prevent the repetition of such wrongful acts by the defendant. These are not compensatory.
Other objects of these damages are social security and to give punishment to the wrong-doers. [CaseLaw: Bhim Singh vs. State of J&K. Refer Topic I.B.]
(iv)
PROSPECTiVE/FUTURE DAMAGES
(SN)
“Prospective Damages”/”Future damages” means any damages that result from an injury to person
that is a subject of a tort action and that will accrue after the verdict or determination of liability by the
trier of fact is rendered in that tort action.
“Prospective Damages” includes compensation for damages which is quite likely result of the
defendanf s wrongful act, but which has not actually resulted at the time of the decision of the case.
Example: A boy’s legs were cut down by an accident. The damages are awarded for the medical
expenses, future expenses for livelihood and the expenses for the maintenance for every year, cost of
creches, and loss calculated the disability of the job opportunities, etc. [Case-law: Bhagawandas vs.
Mobd. Arif (1987) 2 ALT 137]
(b)
(c)
INJUNCTIONS:
[Refer to Topic “Injunctions”.]
SPECIFIC RESTITUTION OF PROPERTY
(SN)
In torts, the ‘Specific Restitution of Property’ means where the plaintiff has been wrongfully
dispossessed of his movable or immovable property, the Court may order the defendant for specific
performance, and the property shall be restored back to the plaintiff. In cases, where damages are
inadequate compensation for the torts coupled with breach of an agreement, the defendant may be
compelled to perform what he has agreed to do by a decree of specific performance.
Example: As car was taken away by his friend B. B pledged it to C. Car is in the possession of C.
The Court orders B to get it redeemed from C and to hand over it to A. This remedy is not available to
personal services. However, the Court may order the defendant with injunctions to perform negative
agreement. (Case-law: Lumley vs. Wagner).
The Courts follow the provisions of the Code Civil Procedure, 1908, the Specific Relief Act, 1963,
the Limitation Act, 1963, etc.
2)
EXTRA-JUDICIAL REMEDIES
[Refer to above.]
(SN)
210
The Law of Torts
5.H.
ASSESSMENT OF DAMAGES /
MEASUREMENT OF DAMAGES
5.H.(i) ASSESSMENT OF DAMAGES / MEASUREMENT OF DAMAGES
Q.1.
Explain the principles for assessment of damages
Q.2.
Explain the procedure of “Assessment of Damages”.
Q.3.
Assessment of Damages.
(SN)
Q.4.
Measurement of Damages.
(SN)
Q.5.
Reliance Loss.
(SN)
Q.6.
Wasted Expenditure Loss.
(SN)
Q.7.
Bad Bargain.
(SN)
Q.8.
P. Haulage vs. Middleton (1983).
(SN)
Q.9.
Damages.
in case of tort.
(Aug., 2008, O.U.) (AnI., 2010, B.U.) (AnI., 2010, G.U.)
(AnI., 2011, M.U.) (AnI., 2011, N.U.) (AnI., 2012, K.U.) (AnI., 2014, S.U.)
(SN) (June, 2011, O.U.)
Q.10. Compensatory Damages or Actual Damages.
(SN)
Q.11. Punitive Damages or Expectation of Damages.
(SN)
Q.12. Liquidated Damages.
(SN)
Q.13. Unliquidated Damages.
(SN) (June, 2010, O.U.)(Oct., 2013, O.U.)
Q.14. DISTINCTION BETWEEN LIQUIDATED DAMAGES AND UNLIQUIDATED DAMAGES
(SN) (AnI., 2011, M.U.) (AnI., 2012, Amb.U.) (AnI., 2014, Burd.U.)
Q.15. Quantum of Damages.
(SN)
Q.16. Measure of Damages.
(SN)
Q.17. West vs. Shephard (1964 AC 326).
(SN)
Q.18. Full Compensation.
(SN)
Q.19. Attendant’s Expenses.
(SN)
Q.20. Interest on Damages.
(SN)
Q.21. Who are entitled for the damages?
(SN)
Q.22. Capacity of the deceased.
.
Q.23. Shall gratuity, provident fund, family pension, insurance money, etc. be deducted in the damages awarded?
Q.24. Loss of Consortium.
Q.25. Shall the wife of the deceased (husband) be entitled if she remarriages?
Q.26. Prospective Loss of Earnings.
(SN)
(SN)
(SN) (AnI., 2010, Burd.U.)
(SN)
(SN) (AnI., 2012, D.U.)
Q.27. Interest Method of Prospective Loss of Earnings.
(SN)
Q.28. Lump sum Method of Prospective Loss of Earnings.
(SN)
Q.29. Actuary’s Multiplier Method.
Q.30. Diplock Formula.
Q.31. # Bhagawan Das vs. Mohd. Arif (1987 (2) ALT SC).
Q.32. Mrs. Susamma Thomas and others (Respondents) (1994) 1 ALT 1 SC)
Q.33. Breach of Contract Duty - (£x Contractu).
(SN) (AnI., 2008, N.U.)
(SN)
(EQ/SN) (AnI., 2007, K.U.)
(SN)
(SN) (AnI., 2005, S.V.U.)
Q.34. Expectation Measure.
(SN)
Q.35. Benefit-of-the-bargain Measure of Damages.
(SN)
Q.36. Breach of Tortuous Duty.
(SN)
Q.37. Ex Delicto.
(SN) (AnI., 2006, S.K.U.)
Q.38. General Damages sometimes styled "Hedonic Damages”.
(SN)
Q.39. Speculative Damages.
(SN)
Q.40. Quantification of Personal Injury Claims.
(SN)
Q.41. The age of the aggrieved person/complainant/plaintiff.
(SN)
Q.42. The nature and extent of the injuries sustained.
(SN).
Q.43. Gender of the Complainant.
(SN)
Q.44. Personal Attributes and Fortitude of the Complainant.
(SN)
Q.45. Proximate Cause.
(SN)
Q.46. Quantifying Losses in Practice - Expert Evidence.
(SN)
Q.47. Contemptuous Damages.
(SN)
211
Unit - V (Part - A) : Extinction of Liability
(SN)
Q.48. Aggravated Damages.
Q.49. DISTINCTION BETWEEN THE AGGRAVATED DAMAGES AND PUNITIVEDAMAGES.
(SN) (AnI., 2010, M.U.)
Q.50. RESTITUTIONARY OR DISGORGEMENT DAMAGES
(SN)
Q.51. Legal Costs.
(SN)
Q.52. DIFFERENT LEGAL REMEDIES.
(SN)
Q.53. DISTINCTION BETWEEN COMPENSATION AND DAMAGES.
(SN) (AnI., 2009, M.U.)
Q.54. Special Damages.
(SN)
Q.55. Incidental Damages.
(SN)
Q.56. Consequential Damages.
(SN)
Q.57. Reliance Damage.
Q.58. Statutory Damages/Legal Damages.
(SN) (AnI., 2006, G.U.)
(SN) (Sept., 2014, O.U.)
Q.59. Treble Damages.
(SN) (AnI., 2008, N.U.)
Q.60. DIFFERENT EQUITABLE REMEDIES.
(SN)
Q.61. Specific Performance.
(SN)
Q.62. Restitution / Account of Profit.
(SN)
Q.63. Constructive Trust.
(SN)
Q.64. Injunctions.
(SN) (Sept., 2014, O.U.)
Q.65. Rescission.
(SN)
Q.66. Rectification.
(SN)
Q.67. Declaratory Relief.
(SN)
ANSWER:
ASSESSMENT OF DAMAGES / MEASUREMENT OF DAMAGES
(EQ/SN)
INTRODUCTION: There are three ways of calculating loss and which one is used will depend upon
the type of loss Incurred and which one will be best for the claimant.
Reliance loss:
Reliance loss is also known as wasted expenditure loss and arises when the
claimant has incurred out of pocket or wasted expenditure in preparation of or partial performance of
the contract. The purpose of reliance loss is the same as expectation loss in that it is designed to put
the claimant in the same position they would have been in before the contract was entered into. Where
expectation loss cannot be recovered, reliance loss will be claimed, (c) Restitution: Restitution is
where the ciaimant has conferred a benefit on the defendant in performing their contractual duties and
wants to claim that benefit back. An example of this is where the ciaimant has paid in advance for
goods which have not been delivered. The loss is measured with regard to the value of the actual
benefit as opposed to the claimant’s loss, but will only be permitted if there is a serious breach and a
total failure of consideration. The purpose of a claim under this heading is to put both parties into the
position they would have been in had the contract never been entered into, although in some situations
the claimant may be placed in a better position. The claimant is entitled to choose the basis upon
which to make their claim, but there are certain restrictions. Where the claimant has made a ‘bad
bargain’ they will not be entitled to claim damages for a reliance loss, putting them in a better position
than they would have been in had the contract been performed. In any event, it is forthe defendant to
prove that the claimant has made a bad bargain. In the case
C andP Haulage v Middleton (1983),
the claimant had hired a garage for 6 months and it was agreed that any improvements would be the
property of the defendant. When the defendant breached the contract, the claimant sued forthe cost
of the improvements. The court held that even if the contract had not been breached, the expenditure
would have been wasted. In some situations it may also be possible to recover twice for the same
loss under the various bases as outlined above, as long as the loss itself is not duplicated. In general
though, the claimant will seek damages assessed on the expectation basis as this usually proves to
be more profitable.
ASSESSMENT OF DAMAGES / MEASUREMENT OF DAMAGES
(EQ/SN)
In law, damages are an award, typically of money, to be paid to a person as compensation for loss or
injury. The rules for damages can and frequently do vary based on the type of claim which is presented
(e.g., breach of contract versus a tort claim) and the jurisdiction.
At common law, damages are categorized into compensatory (or actual) damages, and punitive
damages. Compensatory damages are further categorized into special damages, which are
economic losses such as loss of earnings, property damage and medical expenses, and general
damages, which are noneconomic damages such as pain and suffering and emotional distress.
Compensatory or Expectation of Damages: Compensatory damages are paid to compensate the
claimant for loss, injury, or harm suffered as a result of another’s breach of duty (requirement
•
212
The Law of Toils
of causation), e.g., in a negligence claim under tort law. Expectation of Damages are used in the
Law of Contract.
DISTINCTION BETWEEN LIQUIDATED DAMAGES AND UNLIQUIDATED DAMAGES
(SN)
Liquidated Damages (also referred to as liquidated and ascertained damages) are damages whose
amount the parties designate during the formation of a contract for the injured party to collect as
compensation upon a specific breach (e.g., late performance).
When damages are not predetermined/assessed in advance, then the amount recoverable
be ‘at large’ (to be agreed or determined by a court or tribunal in the event of breach).
is said to
At the common law, a liquidated damages clause will not be enforced if its purpose is to punish the
wrongdoer/party in breach rather than to compensate the injured party (in which case it is referred to
as a penal or penalty clause). One reason for this is that the enforcement of the term would, in effect,
require an equitable order of specific performance. However, the Courts sitting in equity will seek to
achieve a fair result and will not enforce a term that will lead to the unjust enrichment of the enforcing
party.
In order for a liquidated damages clause to be upheld,
two conditions must be met.
First, the amount of the damages identified must roughly approximate the damages likely to fall upon
the party seeking the benefit of the term.
Second, the damages must be sufficiently uncertain at the time the contract is made that such a
clause will likely save both parties the future difficulty of estimating damages.
Damages that are sufficiently uncertain may be referred to as unliquidated damages, and may be so
categorized because they are not mathematically calculable or are subject to a contingency which
makes the amount of damages uncertain.
LIQUIDATED DAMAGES
1.
Liquidated damages (also referred to
as liquidated and ascertained damages)
are damages whose amount the parties
UNLIQUIDATED DAMAGES
1.
Unliquidated Damages are unascertained.
designate during the formation of a contract
for the injured party to collect as compensation
upon a specific breach (e.g. late
performance).
2.
In general the liquidated damages can be set-
2.
off.
3.
Interest will be allowed on liquidated damages.
In general the unliquidated damages cannot
be set-off.
3.
No interest will be allowed on unliquidated
damages.
4.
Liquidated Damages is a fixed sum which is
4.
claimed. Damages may be fixed in the
contract itself as a consequence of a party
failing to perform a specified obligation, or the
sum may be able to be calculated precisely as a
Unliquidated damages are assessed by the
Court and are designed to compensate the
innocent party for any losses incurred as a
result of a breach of contract. However, where
loss cannot be proved, the innocent party will
result of the breach of contract.
only be entitled to claim nominal damages.
(Ashby vs. White)
5.
Where the liquidated damages are specified in
the contract itself, it must be a genuine pre
estimate of the loss which would be suffered in
the event of the specified breach of contract. If
it does not, it will not be enforced by the Court,
and the claimant will be left to its actual losses
suffered as a result of the breach. The case
of Dunlop Pneumatic Tires Ltd v New Garage
and Motor Co. (1915) set down guidelines to
distinguish between liquidated damages and
penalties. The Court was of the view that a sum
specified in a contract will be a penalty where;
(a) it is extravagant and unconscionable; (b) a
larger sum will be payable where a smaller sum
specified to be paid is not paid; and (c) the
same sum will would be payable whether the
breach is minor or major.
5.
Unliquidated damages are not a means by
which to punish the defendant and punitive
damages will not be awarded for a breach of
contract. They are also not a way to recover
any gain made by the defendant as a result of a
breach. Loss includes any harm or damage to
the claimant themselves or any of their property,
including any reduction of value of such
property caused by the breach of contract.
However, in calculating the loss and awarding
damages, if the claimant has obtained any
benefit from the breach the Court will not usually
allow the claimant to be put in a better position
than they would have been had the breach not
occurred. Therefore, any benefit received must
be set off against the loss.
213
Unit - V (Part - A) : Extinction of Liability
6.
Where the liquidated damages are specified in
the contract itself, it must be a genuine pre
6.
There are three ways of calculating loss and
which one is used will depend upon the type of
estimate of the loss which would be suffered in
loss incurred and which one will be best for the
the event of the specified breach of contract. If it
does not, it will not be enforced by the court,
claimant, (a) Expectation Loss- Expectation
Loss is also known as the loss of bargain,
(b) Reliance loss; and (c) Restitution.
and the claimant will be left to its actual losses
suffered as a result of the breach. The case
of Dunlop Pneumatic Tyres Ltd v New
Garage and Motor Co. (1915) set down
guidelines to distinguish between liquidated
damages and penalties. The court was of the
view that a sum specified in a contract will be a
penalty where: it is extravagant and
unconscionable; a larger sum will be payable
where a smaller sum specified to be paid is not
paid; and the same sum will would be payable
whether the breach is minor or major.
QUANTUM (MEASURE) OF DAMAGES
(EQ/SN)
If the fact of injury to the plaintiff is proved, then Court measures how much damage/harm is caused to
him by the defendant, and also comes to a conclusion how much amount of damages should be
awarded to the plaintiff. This is called as ‘the assessment of damages or measure of damages.
The assessment of damages depends upon the precedents. The term ‘precedent’ means the
decisions of the Supreme Court given in the previous case-laws. It depends upon the various principles
arrived by the Supreme Court in the previous case-laws.
In case of death or loss of limbs, money cannot compensate fully. The dependants of the deceased
suffer a lot of difficulties in the society. However, pecuniary damages are awarded by the Courts on
the basis of ‘full compensation’ on the of social and welfare grounds. In West vs. Shephard (1964
AC 326), Lord Morris strongly opined that a person injured is entitled to full compensation for the
‘financial loss’ suffered. While measuring the damages, three important points are taken into
consideration by the Courts. They are:—
(i)
Personal pains and sufferings, and loss of enjoyment of life;
(ii) Actual pecuniary loss resulting in any expenses reasonably incurred by the plaintiff; and
(iii) The probable future loss of income by reason of incapacity or diminished capacity for work.
Some Important points on measure of damages:
A. Attendant’s Expenses: The attendant’s expenses are awarded to the injured party. A and B are
wife and husband. Both of them are injured in an accident, and were admitted in Hospital. A’s sisters
come and serve them. A’s sisters are entitled to get the Attendant’s expenses.
B. Interest: Interest is awarded to the plaintiff by.the Court, either from the date of filing the petition or
from the date of judgment or from the date of injury. It depends upon circumstance of each case and
upon the discretion of the Court.
C. Who are entitled? In case of injuries or loss of limbs, the injured party himself is entitled to receive
compensation. If the victim dies, his dependents are entitled. The preference to the dependants is
given according to the personal laws. Generally, the spouse, sons, daughters and parents stand in the
first preferential list. Brothers, sisters, grand-father, etc. stand in the second.
D. Capacity of the deceased: If the victim dies, damages are awarded depending upon the earning
capacity of the deceased. If a doctor of high income dies in an accident, the Courts give higher
compensation. If a rickshaw puller dies in an accident, his successors get according to his earning
capacity.
E. Gratuity, Pension, etc.: While computing the damages of the victim, the payments of gratuity,
provident fund, family pension, insurance money, etc. shall not be deducted in the damages awarded.
Both of them are quite different.
F. Loss of consortium: In general meaning, “Consortium” means cohabitation of the spouse. The
association between husband and wife involves companionship, love, affection, comfort, mutual
services and sexual intercourse. A husband has a right to the consortium etservitium of his wife, i.e.
to her society and services. If any tortuous act committed against the wife is actionable. Her husband
can sue the defendant, who caused such tortuous act, for any period for which he was deprived of her
society or services. Similarly, a wife is entitled the damages for loss of consortium.
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The Law of Torts
G. Re-marriage: A widow of the victim can claim compensation
on her husband’s death.
If she
remarries, the damages are not allowed, and if awarded the amount shall be reduced. The aim of
awarding compensation to a widow is to support her financially. If she remarries, she automatically
gains the financial support and social security. Hence the Court considers this point going through the
circumstances, age, custom, caste, beauty, etc. of the window, while awarding the compensation.
H.
PROSPECTIVE LOSS OF EARNINGS
(SN)
In any personal injury case, a key component of the damages (the compensation the aggrieved will
receive) is the income he has lost and the income he can expect to lose due to his injuries. But while
his past lost income may be fairly easy to calculate, things get a little more muddy when it comes to his
expected future income losses, and especially his “lost earning capacity” — which means his
ability to make a living in either the job he had before or in a comparable one.
Proving his lost future earnings in a personal injury case usually comes down to a combination of
financial documentation and the testimony of expert witnesses who are qualified to offer an opinion
on his physical limitations and the potential impact that those limitations will have on his earning ability.
Every case is different, and there are too many variables to come up with a comprehensive list, but
here are a few common factors that will affect his lost future earnings in an injury case (and many of
these factors will need to be touched upon as part of his obligation to prove your damages):
•
A Comprehensive assessment of his injuries and a timeline of his prospects for a full recovery.
•
If full recovery is not anticipated or he has long-term injuries, a realistic picture of his capabilities
and limitations (from an employment standpoint) once he reaches maximum recovery.
•
An analysis of the nature of his current employment duties and any prospective employment
duties he is trained and qualified to carry out, in light of the limitations stemming from his injuries
— including the financial implications of different employment options.
•
A forecast of the income he could have reasonably expected to receive had he not been injured,
contrasted with a forecast of the income he can reasonably expect to receive post-injury.
•
Any promotion (in terms of position and salary) or other advancement that he could reasonably
have expected to achieve.
Especially in cases where his injuries will have a significant impact on his ability to earn a living, it’s a
good idea to discuss his case with an experienced injury attorney. His lawyerwill know what information
to track down, and the kinds of expert witnesses to retain, to best prove the financial side of his injury
case.
If a person dies in an accident, the above said procedure is adopted in calculating the prospective loss
of earnings, as if he survives in the future.
In the entire gamut of the law of tort damages, this is the most difficult problem in assessing the
claimant’s future loss of earnings. The advocates deal with the various scenarios which may arise in
assessing a claimant’s future loss of earnings. Practical guidance and worked examples are provided
to demonstrate the appropriate method of calculation for the following situations: (1) a simple future
loss of earnings calculation, (2) the claimant has residual earnings capacity, (3) the claimant has
variable future working periods requiring a split multiplier calculation, and (4) the claimant was injured
before they had established a career.
However, over the years, the Courts have, with the aid of modern techniques in the field of Demography,
Statistics and the Mathematical theory of Probability and Actuaries, developed systems which are to
day come perfect. First the present value of the future loss of earnings for the remaining period is to be
computed on a total disability basis. But if there is only partial disability, the said figure has to be
reduced proportionately, to net at the percentage of net lost; of earnings. There are three methods of
computing loss of future earnings. They are: (a) Interest Method; (b) Lump sum Method; and
(c) Multiplier Method,
(a) Interest Method: This method comprises in awarding a capital sum the annual interest (at
current rates of bank interest) upon which sum will be equivalent to the future annual loss. This
interest method has been rejected by almost all the Courts,
(b) Lump sum Method: The actual loss for all the future years of expected life is to be added up but
then a fixed fraction of 1 /3 or so is to be deducted
to off-set the two factors of (i) mortality or uncertainties
of life, and (ii) conversion of future annual figures to present value.
(c)
ACTUARY’S MULTIPLIER METHOD / DIPLOCK FORMULA
(SN)
An amount of damages calculated by multiplying the sum might be truly compensatory. It is a simple
method of computing the present value of future loss of earnings by using Actuary’s Tables, considering
Unit - V (Part - A) : Extinction of Liability
215
the real rate of interest, future inflation. This is a new system evolved by the combined analysis and
efforts of (i) Courts, (ii) Jurists; and (iii) Economists. Lord Diplock propounded this formula to use a
low rate of interest for conversion of future earnings to present value as being a benevolent method in
his famous judgment in Matiett vs. Me Monagle (1970 AC 166). This Formula later came to know
as the “Diplock Formula”. It is followed in Canada, Britain, etc. The Supreme Court of India is also
following it. The agreed range of rate of interest is 3% to 5%.
# Bhagawan Das vs. Mohd. Arif (1987 (2) ALT SC)
(Measure of Damages)
Brief Facts: Mohd. Arif-Respondent was working as a technician in the Merchant Navy. At that time
he was drawing Rs. 645/- salary, plus subsistence allowance of Rs. 39/- per month, an allowance of
Rs. 64-50 RM. and bonus of Rs. 51-25 P.M. apart from a permanent over-time allowance of Rs. 192/
- P.M. On 30-6-1978, Bhagawan Das-the appellant while driving his vehicle caused an accident to the
respondent, as a result the respondent’s right leg below the knee was amputated. The respondent
claimed compensation before the Tribunal under Section 110-D of the Motor Vehicles Act, against
the appellant Bhagawan Das who was the owner of the motor vehicle. The Tribunal awarded Rs.
97,000/- towards the present loss of future earnings and Rs. 3,000/- towards pains and sufferings.
The Appellant appealed before the Andhra Pradesh High Court, contending that the damages were
excess and were not calculated correctly and prayed for reduction in the damages. The Respondent
prayed to increase the compensation stating that the lower Court had considered his salary only, and
had not taken the allowances into consideration.
JUDGMENTiThe Andhra Pradesh High Court followed the Multiplier System in calculation adopting
“Diplock Formula”. The Court gave the judgment in favour of the respondent, and dismissed the
appeal.
The Court adopted a multiplier of 14.40 as the respondent’s age was 35 years at the time of the
accident, and calculated the salary and allowances of the injured-respondent as follows:
1)
Past loss of earnings up to date of trial = Rs.
2)
9816x 17/12
Rs.
13,906.00
Present value of Future loss of earnings
(from date of trial up to 60 years) Rs. 9816 x 14.40
Rs.
1,41,350.00
Total
Rs.
1,65,256.00
Total arrived at Rs. 1,65,256.00, and the Court assumed a disability of 65% as done in the lower Court,
this comes to Rs. 1,07,412/-.
Principles: 1. The Multiplier Table evolve a very simple method of computation of the present value of
future loss of earnings. The Actuary’s multiplier based on the Diplock method is now scientifically
accepted as the best simplest method of computing future loss of earnings.
2. For India a rate of interest of 4% is to be applied for conversion of future losses or earnings to
present values.
3. In cases of injuries, the relevant age for selecting the multiplier will be the age at the time of trial—
for computing present value of future earnings because the loss upto trial can be otherwise computed.
4. In cases of fatal accidents, the age at the time of death gives the relevant multiplier and this is
subject to lowering of the same if the dependants are of advanced age.
5. The various views of courts, jurists and of economists conform to the Diplock formula and agree
that it future inflation also, apart from taking into accountfuture uncertainties of life and the conversion
adequately combats future inflation also, apart from taking into accountfuture uncertainties of life and
the conversion of future payments to their present values.
# The General Manager, K.S.R.T.C., Trivandrum (Appellants) vs.
Mrs. Susamma Thomas and others (Respondents) (1994) 1 ALT 1 SC)
(Measure of Damages)
Brief Facts: The Andhra Pradesh High Court gave the judgment on a new path in Bhagawan Das
vs. Mohd Arif in 1987, adopting the principles of Actuary’s Multiplier Method with Diplock Formula.
In 1994, the Supreme Court accepted the principles and judgment of Bhagawan Das vs. Mohd.
Arif, and gave the judgment in similar way in the General Manager, K.S.R.T.C. vs. Mrs. Susamma
Thomas. Thomas Philip was an employee in Malayalam Manorama on a monthly salary of Rs.
1,032/-. On 19-2-1984, the bus driver of the Kerala State Road Transport Corporation negligently
and rashly drove the bus and did an accident at Plamood Junction causing the death of Thomas
216
The Law of Torts
Philip. He was aged 38 years at the time of death. Wife, parents and children were the dependants.
The dependants sued the K.S.R.T.C. for damages before the Motor Accidents Claims Tribunal
under Sections 110-Aand 110-B of the Motor Vehicles Act, 1939. The Tribunal awarded Rs. 58,760/
- to the dependants. The dependants appealed before the Kerala High Court contending that the
damages awarded by the Tribunal were very smaller, and not according to the rules of law. The Kerala
High Court admitted the contention of the dependants, and gave the judgment enhancing compensation
from Rs. 58,760/-to Rs. 2,64,000/-. The K.S.R.T.C. appealed to the Supreme Court.
JUDGMENT: The Supreme Court followed the multiplier method Diplock Formula in measuring
the damages, and modified the Kerala High Court judgment determining damages for Rs. 2,25,000/-.
Principles laid down: The multiplier method Diplock Formula as laid down in Bhagawandas vs.
Mohd. Arif has been approved by the Supreme Court.
BREACH OF CONTRACT DUTY (EX CONTRACTU)
(EQ/SN)
Breach of Contract Duty - (ex contractu): On a breach of contract by a defendant, a court generally
awards the sum that would restore the injured party to the economic position they expected from
performance of the promise or promises (known as an “Expectation Measure” or “Benefit-of-thebargain Measure of Damages”).
When it is either not possible or not desirable to award the victim in that way, a court may award
money damages designed to restore the injured party to the economic position s/he occupied at the
time the contract was entered (known as the. “Reliance Measure”), or designed to prevent the
breaching party from being unjustly enriched (“restitution”).
Parties may contract for Liquidated Damages to be paid upon a breach of the contract by one of the
parties. Under the Common Law, a Liquidated Damages clause will not be enforced if the purpose
of the term is solely to punish a breach (in this case it is termed Penal Damages). The clause will be
enforceable if it involves a genuine attempt to quantify a loss in advance and is a good faith estimate of
economic loss. The Courts have ruled as excessive and invalidated damages which the parties
contracted as liquidated, but which the court nonetheless found to be penal.
BREACH OF TORTUOUS DUTY (EX DELICTO)
(EQ/SN)
Damages in tort are generally awarded to place the claimant in the position that would have been taken
had the tort not taken place. Damages in tort are quantified undertwo headings: General Damages/
Hedonic Damages and Special Damages.
In personal injury claims, damages for compensation are quantified by reference to the severity of
the injuries sustained (see below general damages for more details). In non-personal injury claims,
for example, a claim for professional negligence against solicitors, the measure of damages will be
assessed by the loss suffered by the client due to the negligent act or omission by the solicitor giving
rise to the loss. The loss must be reasonably foreseeable and not too remote. Financial losses
are usually simple to quantify but in complex eases which involve loss of pension entitlements and
future loss projections, the instructing solicitor will usually employ a specialist expert actuary or
accountant to assist with the quantification of the loss.
GENERAL DAMAGES / HEDONIC DAMAGES
(EQ/SN)
General Damages, sometimes styled “Hedonic Damages”, compensate the claimant for the non
monetary aspects of the specific harm suffered. This is usually termed ‘pain, suffering and loss of
amenity’. Examples of this include physical or emotional pain and suffering, loss of companionship, loss
of consortium, disfigurement, loss of reputation, loss or impairhient of mental or physical capacity.
loss of enjoyment of life, etc. This is not easily quantifiable, and depends on the individual circumstances
of the claimant. Judges in the United Kingdom base the award on damages awarded in similar
previous cases.
General damages are generally awarded only in claims brought by individuals, when they have suffered
personal harm. Examples would be personal injury (following the tort of negligence by the defendant),
or the tort of defamation.
Hedonic Damages, an economic term of art, refers to loss of enjoyment of life damages, the intangible
value of life, as distinct from the human capital value or lost earnings value. Hedonic damages, the
loss of the value of life, are allowed in almost every State in a non-fatal injury case. Based on William
Daubert et al. v. Merrell Dow Pharmaceuticals, Inc., and other admissibility tests, many but not all
jurisdictions allow economic expert witness testimony on hedonic damages. For example, the Nevada
Supreme Court unanimously approved of such testimony in Banks v. Sunrise Hospital, 120 Nev.
822,102 P.3d 52 (2004). Similarly, the 4th Appellate District in Ohio allowed such testimony based
on Daubert in Lewis v. Alfa Leval,128 Ohio App.3d.200 (1998). The Court of appeals in the Lewis
case held that the trial judge properly ruled that the testimony met the Daubert Standards, and that it
Unit - V (Part - A) : Extinction of Liability
217
admitted hedonic damages testimony. The
measurement of hedonic damages is based on some 40 years of extensive, well-accepted, peerreviewed, economic research on the value of a statistical life. This measurement is controversial
among forensic economists. The Value of Statistical Life (VSL) literature is accepted by most
forensic economists, including those economists few who oppose the admission of hedonic damages
testimony. Many courts nationwide have allowed such testimony but judges have significant discretion
as to its admissibility. Economists generally agree that the VSL is in the $4 million to $5 million
range. This value is an average of many published results based on economic research using the
Willingness-to-Pay model (WTP).
was within the discretion of the trial court to have
Hedonic damages are not allowed in death cases in the great majority of the States. Some States
do allow recovery in wrongful death cases, including New Hampshire, New Mexico, Georgia, Arkansas,
Connecticut, Hawaii, and in Federal Section 1983 civil rights violation actions.
Hedonic damages also can apply in cases that Involve no injury. Cases involving inmates
wrongfully imprisoned have been won with Hedonic Damages approaches. Such were the plights of
two former inmates, William Gregory and David Pope, convicted and laterexonerated on rape charges.
William Gregory, who served seven years in a Kentucky prison, received a $4.5 million settlement,
while David Pope, who served 15 years in Texas, received $385,000. While the inmates were free,
according to David Hunt, another inmate laterfreed after serving 18 years, “we’re still living the nightmare
every day”. Hedonic damages attempt to compensate for that suffering with settlements.
A person injured after falling from a defective chair was able to recover hedonic damages.
SPECULATIVE DAMAGES
(EQ/SN)
The term ‘Speculation’ means “more or less risky investment of money for the sake of, and in
expectation of unusually huge profits”.
Speculative Damages are damages claimed by a plaintiff for losses that may occur in the future,
but are highly improbable. They cannot be used as a basis for recovery in tort or contract cases.
Speculative Damages are damages that have not yet occurred, but the plaintiff expects them to.
Typically, these damages cannot be recovered unless the plaintiff can prove that they are reasonably
likely to occur.
Speculative Damages are damages claimed by a plaintiff for losses that may occur in the future, but
are highly improbable. They cannot be used as a basis for recovery in tort or contract cases. Example:
A plaintiff claims the tortfeasor’s failure to deliver a shipment not only hurt his current sales, but also
customer satisfaction and thus future sales as well.
There is, however, one way that speculative damages can be recovered. If the plaintiff can prove that
the speculative damages are reasonably likely to occur, he can recover the damages up to the amount
that is reasonably likely to occur. The damages do not have to be proven with absolute certainty,
only reasonable certainty.
For example, if the aforementioned small business owner claims that the tortfeasor’s claims hurt
his customer satisfaction, and proved it by showing security camera footage of one of his most
frequent customers being so upset over the business’ inability to deliver the product that he ordered
that he stormed out of the store and vowed to never come back, then the business owner might have
something. However, he would only be able to collect on future sales for that one customer, as no
other customer’s future sales are “reasonably likely to occur”.
QUANTIFICATION OF PERSONAL INJURY CLAIMS
(SN)
The quantification of personal injury is not an exact science. In the English law solicitors like to call
personal injury claims as “General Damages” for Pain and Suffering and Loss of Amenity (PSLA).
Solicitors quantify personal injury claims by reference to previous awards made by the courts which
are “similar” to the case in hand. The guidance solicitors will take into account to help quantify general
damages are as hereunder:—
1.
THE AGE OF THE AGGRIEVED PERSON/COMPLAINANT
The age of the aggrieved person/complainant/plaintiff is important especially when dealing with fatal
accident claims or permanent injuries. The younger the injured victim with a permanent injury the
longer that person has to live with the Pain and Suffering and Loss of Amenity (PSLA). As a
consequence, the greater is the compensation payment. In fatal accident claims, generally the younger
deceased, the greater the dependency claims by the partner and children.
2.
THE NATURE AND EXTENT OF THE INJURIES SUSTAINED
Solicitors will consider “like for like” injuries with the case in hand and similar cases decided by the
courts previously. These cases are known as the Precedents (The case-laws in which decisions
218
The Law of Torts
were taken.) Generally speaking decisions from the highercourts will bind the lower courts. Therefore,
in England, judgments from the House of Lords and the Court of Appeal have greater authority than the
lower courts such as the High Court and the County Court. In India, judgmentsfrom the Supreme
Court have greater authority on the High Courts and the lower courts throughout the country. Similarly,
authority on the lower courts throughout the
^^e judgments of a High Court in a State have greater
A compensation award can only be right or wrong with reference to previous judgments. Sometimes
it is a matter of opinion of how much an injury claim is worth and the skill of the solicitor is persuading
the opponent and ultimately the judge that their assessment is right. Solicitors must be careful when
looking at older cases when quantifying a claim to ensure that the award is brought up to date and to
take into account the court of appeal case in Heil v Rankin (2000) 2 WLR1173). Generally speaking
the greater the injury the greater the damages awarded.
A quick guide to assess personal injury claims is by reference to the Judicial Studies Board,
Guidelines for the Assessment of General Damages in Personal Injury Cases. Some case
examples can also be considered.
3.
GENDER OF THE COMPLAINANT
Generally speaking damages for personal injury for males and females are the same. However where
there can be a difference weighted in favour of females is where the injury results in permanent
scarring to the skin. Where the scarring is clearly visible such as the face, legs, and arms, females
will usually obtain a greater amount of compensation than males. The compensation reflects the
general assumption that females will be affected more than males by scarring and thus will be awarded
more. However each case will be decided on its own particular facts. For instance a male model who
sustains a scarring tissue to his face may obtain just as much as a female.
4.
PERSONAL ATTRIBUTES AND FORTITUDE OF THE COMPLAINANT
This heading is inextricably linked with the other points above. Where two aggrieved claimants are of
the same age, experience and suffer the same injury, it does not necessarily mean that they will be
affected the same. We are all different. Some people will recover more quickly than others. The
Courts will assess each claim on its own particular facts and therefore if one claimant recovers more
quickly than another, the damages will be reflected accordingly. It is important to note here that
“psychological injuries” may also follow from an accident which may increase the quantum of
damages.
When a personal injury claim is settled either in Court or out of Court, the most common way the
compensation payment is made is by a lump sum award in full and final settlement of the claim.
Once accepted there can be no further award for compensation
at a later time unless the claim is
settled by provisional damages often found in industrial injury claims such as asbestos related
injuries.
5.
PROXIMATE CAUSE
(SN)
Recovery of damages is subject to the legal principle that damages must be proximately caused by
the wrongful conduct of the defendant. This is known as the Principle of Proximate Cause. This
principle governs the recovery of all Compensatory Damages, whether the underlying claim is based
on contract, tort, or both. Damages are likely to be limited to those reasonably foreseeable by
the defendant. If a defendant could not reasonably have foreseen that someone might be hurt by
their actions, there may be no liability.
This rule does not usually apply to intentional torts (for example, deceit), and also has stunted
applicability to the quantum in negligence where the maxim Intended consequences are never too
remote applies - ‘never’ is inaccurate here but resorts to unforeseeable direct and natural
consequences of an act.
6.
QUANTIFYING LOSSES IN PRACTICE - EXPERT EVIDENCE
(EQ/SN)
It may be useful for the advocates for the plaintiff and/or the defendant to employ forensic
accountants or forensic economists to give evidence on the value of the loss. In this case, they
may be called upon to give opinion evidence as an expert witness.
7.
CONTEMPTUOUS DAMAGES
(SN)
“Contemptuous” means “feeling or showing deep hatred or disapproval; feeling orshowing contempt”.
“Contemptuous Damages” means meager sum of damages. Avery small sum of damages awarded
when, although the claimant is technically entitled to succeed, the court thinks that the action should
not have been brought. Contemptuous damages are sometimes awarded in actions for defamation
where harm to reputation is deemed minimal. (Grobbelaar v News Group Newspapers Ltd [2002]
UK UL 40, [2002] 1 WLR 3024).
Unit - V (Part - A) : Extinction of Liability
219
This type of damages is rarely awarded. They are given when the plaintiff’s suit is trivial, used only to
settle a point of honour or law. Awards are usually of the smallest amount, usually 1 cent or similar.
The Court costs are not awarded.
8.
AGGRAVATED DAMAGES
(SN)
The term ‘aggravated’ means (of an offence) made more serious by attendant circumstances,
“aggravated damages” (of a penalty) made more severe in recognition of the seriousness of an
offence.
Damages awarded by a court to reflect the exceptional harm done to a plaintiff of a tort action. Aggravated
damages are not often awarded; they apply where the injury has been aggravated by the wrongdoer’s
behaviour, for example, their cruelty.
DISTINCTION BETWEEN THE AGGRAVATED DAMAGES AND PUNITIVE DAMAGES
(SN)
“Aggravated damages are compensatory in nature, while punitive damages are awarded as
punishment for egregious conduct....
“Punitive damages, as the name would indicate, are designed to punish. In this, they constitute an
exception to the general common law rule that damages are designed to compensate the injured, not
to punish the wrongdoer. Aggravated damages will frequently cover conduct which could also be the
subject of punitive damages, but the role of aggravated damages remains compensatory....
“Aggravated damages are awarded to compensate for aggravated damage.... They take account of
intangible injuries and by definition will generally augment damages assessed underthe general rules
relating to the assessment of damages. Aggravated damages are compensatory in nature and may
only be awarded for that purpose. Punitive damages, on the other hand, are punitive in nature and
may only be employed in circumstances where the conduct giving the cause for complaint is of such
nature that it merits punishment.”
‘Aggravated dainages are awarded to compensate for intangible emotional injury.
“Aggravated damages are an award, or an augmentation of an award, of compensatory damages for
non-pecuniary losses. They are designed to compensate the plaintiff, and they are measured by the
plaintiff’s suffering. Such intangible elements as pain, anguish, grief, humiliation, wounded pride,
damaged self-confidence or self-esteem, loss of faith in friends or colleagues, and similar matters that
are caused by the conduct of the defendant; that are of the type that the defendant should reasonably
have foreseen in tort cases or had in contemplation in contract cases; that cannot be said to be fully
compensated for in an award for pecuniary losses; and that are sufficiently significant in depth, or
duration, or both, that they represent a significant influence on the plaintiff’s life, can properly be the
basis for the making of an award for non-pecuniary losses or for the augmentation of such an award.
An award of that kind is frequently referred to as aggravated damages. It is, of course, not the damages
that are aggravated but the injury. The damage award is for aggravation of the injury by the defendant’s
highhanded conduct.
“Aggravated damages are not a separate head of damages. Rather, they are an augmentation of
general damages to compensate for aggravated injury.
“Punitive damages, on the other hand, are an exception to the general rule that damages are
compensatory.
“The origin of exemplary damages (probably better described as punitive damages), is usually said
to lie in two cases decided in 1763, Hackle v. Money and Wilkes v. Wood. In those cases substantial
damages awarded by juries for improper interference by public officials with subjects were justified
as exemplary damages. The purpose of the awards was said to punish and deter, and to express
the jury’s outrage at the defendant’s conduct. A related purpose mentioned in subsequent cases was
to appease the victim and to discourage revenge: for example Merest v. Harvey (1814), where the
Judge more specifically referred to the undesirable practice of duelling. Punishment and deterrence
are of course purposes which are served by the criminal law. The introduction of criminal law purposes
into the law of torts did not represent a new development, but reflected the common historical roots of
the laws of tort and crime. Both branches of the law being addressed in large parts to same type of
conduct, the modern separation of their different purposes and procedures were still being completed
at that time.”
“Punitive damages are triggered by conduct that may be described by such epithets as high-handed,
malicious, vindictive, and oppressive. They are awarded where the Court feels that the award of
compensatory damages will not achieve sufficient deterrence and that the defendant’s actions must
be further punished.
220
The Law of Torts
“Punitive damages may be awarded in situations where the defendant’s misconduct is so malicious,
oppressive and high-handed that it offends the court’s sense of decency. Punitive damages bear no
relation to what the plaintiff should receive by way of compensation. Their aim is not to compensate
the plaintiff, but rather to punish the defendant. They are in the nature of a fine which is meant to act as
a deterrent to the defendant and to others from acting in this manner. It is important to emphasize that
punitive damages should only be awarded in those circumstances where the combined award of
general and aggravated damages would be Insufficient to achieve the goal of punishment and
deterrence.”
9.
RESTITUTIONARY OR DISGORGEMENT DAMAGES
(SN)
In certain areas of the law another head of damages has long been available, whereby the defendant
is made to give up the profits made through the civil wrong in restitution. Doyle and Wright define:
“Restitutionary damages as being a monetary remedy that is measured according to the defendant’s
gain rather than the plaintiff’s loss. The plaintiff thereby gains damages which are not measured by
reference to any loss sustained. In some areas of the law this heading of damages is uncontroversial;
most particularly the intellectual property rights and the breach of fiduciary relationship.”
In England and Wales the House of Lords case of Attorney-General vs. Blake opened up the
possibility of restitutionary damages for breach of contract. In this case the profits made by a defecting
spy, George Blake, for the publication of his book, were awarded to the British Government for breach
of contract. The case has been followed in the English courts, but the situations in which restitutionary
damages will be available remain unclear.
The basis for restitutionary damages is much debated, but is usually seen as based on denying a
wrongdoer any profit from his wrongdoing. The really difficult question, and one which is currently
unanswered, relates to what wrongs should allow this remedy.
10.
LEGAL COSTS
(SN)
In addition to damages, the successful party Is entitled to be awarded their reasonable iegai costs that
they spent during the case. This is the rule in most countries other than the United States. In India, a
party generally is entitled to its advocate’ fees or for hardships undergone during trial unless the
parties agreed in a contract that advocate’s fees should be covered or a specific statute or law permits
recovery of legal fees, such as discrimination.
DiFFERENT LEGAL REMEDiES:—
1.
Compensatory Damages.
2.
Punitive Damages.
3.
4.
Speciai Damages: (a) incidentai Damages, (b) Consequentiai Damages.
Liquidated and Uniiquidated Damages.
5.
Reiiance Damages.
6.
Nominai Damages.
7.
Statutory Damages.
8.
Trebie Damages.
DiFFERENT EQUiTABLE REMEDIES:—
1.
Specific Performance.
2.
Restitution / Account of Profit.
3.
Constructive Trust.
4.
Injunction.
5.
Rescission.
6.
Rectification.
7.
Declaratory Relief.
DIFFERENT LEGAL REMEDIES:—
1.
COMPENSATORY DAMAGES
‘Compensation’ means anything given to make things equivalent, a thing given to or to make amends
for loss, recompense, remuneration or pay. It need not therefore necessarily be in terms of money.
DISTINCTION BETWEEN COMPENSATION AND DAMAGES: The expression
compensation is
not ordinarily used as an equivalent to damages, although compensation may often have to be measured
Unit - V (Part - A) : Extinction of Liability
221
by the same rule as damages in an action fora breach. The term compensation signifies that which
is given in recompense, an equivalent rendered. Damages, on the other hand, constitute the sum of
money claimed or adjudged to be paid in compensation for loss or injury sustained.
2.
PUNITIVE DAMAGES (NON-COMPENSATORY)
(SN)
Generally, Punitive Damages, which are also termed Exemplary Damages in the United Kingdom,
are not awarded in order to compensate the plaintiff, but in order to reform or deter the defendant
and similar persons from pursuing a course of action such as that which damaged the plaintiff. Punitive
Damages are awarded only in special cases where conduct was egregiously invidious and are over
and above the amount of compensatory damages, such
in the event of malice or intent.
The
great judicial restraint is expected to be exercised in their application. In the United States punitive
damages awards are subject to the limitations imposed by the Due Process of Law clauses of
the Fifth and Fourteenth Amendments to the United States Constitution.
In England and Wales, exemplary damages are limited to the circumstances set out by Lord Devlin in
the leading case of Rookes vs. Barnard. They are;—
1.
Oppressive, arbitrary or unconstitutional actions by the
2.
Where the defendant’s conduct was ‘calculated’ to make him a profit.
3.
Where a statute expressly authorizes the same.
servants of Government.
Rookes vs. Barnard has been much criticized and has not been followed in Canada or Australia or
by the Privy Council.
Punitive Damages awarded in a US case would be difficult to get recognition for in a European court,
'Where punitive damages are most likely to be considered to violate order public.
3.
SPECIAL DAMAGES - (a) INCIDENTAL AND (b) CONSEQUENTIAL LOSSES (EQ/SN)
Special Damages are sometimes divided into (a) Incidental Damages, and (b) Consequential
Damages.
Incidental Losses include the costs needed to remedy problems and put things right. The largest
element is likely to be the reinstatement of property damage. Take for example a factory which was
burnt down by the negligence of a contractor. The claimant would be entitled to the direct costs
required to rebuild the factory and replace the damaged machinery.
The claimant may also be entitled to any Consequential Losses. These may include the lost profits
that the claimant could have been expected to make in the period whilst the factory was closed and
rebuilt.
Special damages compensate the claimant for the quantifiable monetary losses suffered by the plaintiff.
For example, extra costs, repair or replacement of damaged property, lost earnings (both historically
and in the future), loss of irreplaceable items, additional domestic costs, and so on. They are seen in
both personal and commercial actions.
Special Damages can include direct losses (such as amounts the claimaht had to spend to try
to mitigate problems) and consequential or economic losses resulting from lost profits in a business.
Special Damages basically include the compensatory and punitive damages for the tort committed in
lieu of the injury or harm to the plaintiff.
Damages in tort are awarded generally to place the claimant in the position in which he would have
been had the tort not taken place. Damages for breach of contract are generally awarded to place
the claimant in the position in which he would have been had the contract not been breached. This can
often result in a different measure of damages. In cases where it is possible to frame a claim in
either contract or tort, it is necessary to be aware of what gives the best outcome.
If the transaction was a “good bargain”, contract generally gives a better result for the claimant.
Example: Neal agrees to sell Mary an antique Rolex for £100. In fact the watch is a fake and worth
only £50. If it had been a genuine’ antique Rolex, if would have iDeen Worth £500, Neal is in breach
of contract and could be sued. In Contract, Mary is entitled to an item worth £500, but she has only one
worth £50. Her damages are £450. Neal also induced Mary to enter into the contract through a
misrepresentation (a tort). If Mary sues in fort, she is entitled to damages that put herself back to the
same financial position place she would have been in had the misrepresentation not been made. She
would clearly not have entered into the contract knowing the watch was fake and is entitled to her£100
back. Thus her damages in tort are £1OO. (However, she would have to return the watch, or else her
damages would be £50.)
If the transaction were a “bad bargain”, tort gives a better result for the claimant. If in the above
example Mary had overpaid, paying £750 for the watch, her damages in contract would still be £450
The Law of Torts
222
(giving him the item he contracted to buy), however in tort damages are £700. This is because
damages in tort put her in the position she would have been in had the tort not taken place, and are
calculated as her money back (£750) less the value of what she actually got (£50).
4.
-
(SN)
LIQUIDATED AND UNLIQUIDATED DAMAGES
Liquidated Damages (also referred to as Ascertained Damages) are damages whose amount the
parties designate during the formation'of a contract for the injured party to collect as compensation
upon a specific breach (e.g., late performance).
When damages are not predetermined/assessed in advance, then the amount recoverable
be ‘at large’ (to be agreed or determined by a Court or Tribunal in the event of breach).
is said to
At the Common Law, a liquidated damages clause will not be enforced if its purpose is to punish the
wrongdoer/party in breach rather than to compensate the injured party (in which case it is referred to
as a penal or penalty clause). One reason for this is that the enforcement of the term would, in
effect, require an equitable order of specific performance. However, the Courts sitting in equity will
seek to achieve a fair result and will not enforce a term that will lead to the unjust enrichment of the
enforcing party.
In order for a liquidated damages clause to be upheld,
two conditions must be met.
First, the amount of the damages identified must roughly approximate the damages likely to fall upon
the party seeking the benefit of the term.
Second, the damages must be sufficiently uncertain at the time the contract
clause will likely save both parties the future difficulty of estimating damages.
is made that such a
UNLIQUIDATED DAMAGES: The damages that are sufficiently uncertain may be referred to as the
Unliquidated Damages, and may be so categorized because they are not mathematically calculable
or are subject to a contingency which makes the amount of damages uncertain.
5.
RELIANCE DAMAGES
(SN)
Reliance Damages is the measure of compensation given to a person who suffered an economic
harm for acting in reliance on a party who failed to fulfill their obligation. Reliance Damages are
valued by a party’s reliance Interest for the foreseeable amount. They put the injured party in the
same money position as if the contract had never been formed.
Under the Contract Law, in a bilateral contract two or more parties owe obligations to each other.
Each party acts in reliance that the other party will fulfill their respective obligation. If one party fails to
respect their obligation, then the other party or parties may suffer an economic harm. Reliance
damages compensate the harmed party/ies for the amount of damages they suffered for acting in
reliance on the other party’s contractual obligations. They are most often rewarded when the aggrieved
party’s damages are not capable of accurate estimation, and ordering Specific Performance would
be Inappropriate.
Reliance damages are the type of damages awarded in the promissory estoppel claims, although
they can also be awarded in the traditional contract breaches. This is appropriate because even if
there is no bargain principle in the agreement, one party has relied on a promise and thus is damaged
to the extent of their reliance. These damages must be proven with reasonable certainty. It is not
enough that one party simply guesses as to how much they are actually damaged.
In a losing contract, reliance damages will be reduced because the aggrieved party cannot be put in
a better position had the contract been performed, Here, the losses from the contract will be subtracted
from the reliance damages.
Naresh and Mohan formed a bilateral contract. Naresh
spent Rs. 1,000 in reliance on the contract,
which was foreseeable.
However, Mohan breached the contract. Reliance damages protect a
party’s reliance interest. Naresh spent Rs. 1,000 in reliance on the contract, which constituted Naresh’s
reliance interest.
Since reliance damages equal to the value of the reliance interest of the injured party, Mohan owes
Naresh Rs, 1,000. This puts Naresh in the same economic position as if the contract never happened.
6.
NOMINAL DAMAGES
(SN)
Nominal Damages are very small damages awarded to show that the loss or harm suffered was
technical rather than actual. Perhaps the most famous nominal damages award in modern times
has been the $1 verdict against the National Football League (NFL) in the 1986 antitrust
suit prosecuted by the United States Football League. Although the verdict was
automatically trebled pursuant to the antitrust law in the United States, the resulting $3 judgment
was regarded as a victory for the NFL. Historically, one of the best known nominal damage awards
Unit - V (Part - A) : Extinction of Liability
223
was the farthing that the jury awarded to James Whistler in his libel suit against John Ruskin. In the
English jurisdiction, nominal damages are generally fixed at £2.
Many times a party that has been wronged but is not able to prove significant damages will sue for the
nominal damages. This is particularly common in cases involving alleged violations of constitutional
rights, such as freedom of speech.
7.
STATUTORY DAMAGES / LEGAL DAMAGES
(SN)
Statutory Damages.are an amount stipulated within the statute ratherthan calculated based on the
degree of harm to the plaintiff. Lawmakers will provide for statutory damages for acts in which it is
difficult to determine the value of the harm to the victim. Mere violation of the law can entitle the victim
to a statutory award, even if no actual injury occurred. These are similar to, but different from,
nominal damages, in which no written sum is specified.
In India, the Motor Vehicles Act, 1988, the Employees’ State Insurance Act, 1948, the Employees’
Compensation Act, 1923, the Public Liability Insurance Act, 1991, etc., the legal damages are
fixed and are imposed on the defendants without their fault.
For example, the United States Civii Code 18 USC §§2520 provides for statutory damages to victims
of various wiretapping offences. The Lanham (Trademark) Act provides for minimum damages of
$500 per type of item, for goods sold with unauthorized use of a trademark (15 U.S.C. § 1117(c),
Lanham Act Section 35(c).). In the copyright law, the European directive 2004/48/EC on the
Enforcement of Intellectual Property Rights bases damages on, “the amount of royalties which would
have been due if the infringer has requested authorization”.
8.
TREBLE DAMAGES
(SN)
Treble Damages, in law, is a term that indicates that a statute permits a Court to triple the amount
of the actual/compensatory damages to be awarded to a prevailing plaintiff. The term “Treble”
simply means “triple” in the British English! The phrase “Treble Damages” survived the change
from “treble” to “triple” in the American English.
Treble damages are a multiple of, and not an addition to, actual damages. Thus, where a person
received an award of $100 for an injury, a Court applying treble damages would raise the award to
$300. Some statutes mandate awards of treble damages for all violations. Examples of statutes with
mandatory treble damages provisions are the Clayton Antitrust Act and RICO. Some statutes allow
for an award of treble damages only if there is a showing that the violation was willful. For example,
“up to three times the amount found or assessed” may be awarded by a Court in the United
States forwillful patent infringement. The object behind the creation of such damages is that they will
encourage citizens to sue for violations that are harmful to society in general.
The United States Supreme Court determined in Commissioner v. Glenshaw Glass Co. that, like
compensatory damages, which are not exempt from federal income tax (unless the award is from a
personal injury claim), such taxes must be paid on the excess amount (the amount that exceeds the
actual damages) of treble damages. Furthermore, some foreign governments will assist the U.S.
citizens in collecting damages, but not treble damage awards, which are considered penal.
DIFFERENT EQUITABLE REMEDIES:—
1.
SPECIFIC PERFORMANCE
In the Common Law legal systems, a contract (or informally known as an agreement in
some jurisdictions) is an agreement having a lawful object entered into voluntarily by two or more
parties, each of whom intends to create one or more legal obligations between them. The elements of
a contract are “offer” and “acceptance” by “competent persons” having legal capacity who
exchanges “consideration” to create “mutuality .of obligation”.
Proof of some or all of these elements may be done in writing, though contracts may be made entirely
orally or by conduct. The remedy for breach of contract can be “damages” in the form of compensation
of money or specific performance enforced through an injunction. Both ofthese remedies award the
party at loss the “benefit of the bargain” or expectation damages, which are greater than
mere reliance damages, as in promissory estoppel. The parties may be natural persons or juristic
persons. A contract is a legally enforceable promise or undertaking that something will or will not
occur. The word promise can be used as a legal synonym for contract, although care is required as a
promise may not have the full standing of a contract, as when it is an agreement without consideration.
Performance varies according to the particular circumstances. While a contract is being performed,
it is called an executory contract, and when it is completed it is an executed contract. In some cases
there may be substantial performance but not complete performance, which allows the performing
party to be partially compensated.
224
The Law of Torts
There may be circumstances in which it wouid be unjust to permit the defauiting party simpiy to buy
out the injured party with damages. For example where an art collector purchases a rare painting and
the vendor refuses to deliver, the collector’s damages would be equal to the sum paid.
The Court may make an order of what is called the “specific performance”, requiring that the contract
be performed. In some circumstances a Court will order a party to perform his or her promise (an
order of “specific performance”) or issue an order, known as an “injunction” that a party refrains
from doing something that would breach the contract. A specific performance is obtainable for the
breach of a contract to sell land or real estate on such grounds that the property has a unique value.
Both an order for specific performance and an injunction are discretionary remedies, originating
for the most part in equity. Neither is available as of right and in most jurisdictions and most
circumstances a Court will not normally order specific performance. A contract for the sale of real
property is a notable exception. In most jurisdictions, the sale of real property is enforceable by specific
performance. Even in this case the defence to an action in equity (such as laches, the bona
fide purchaser rule, or unclean hands) may act as a bar to specific performance.
Related to orders for specific performance, an injunction may be requested .when the contract prohibits
a certain action. Action for injunction would prohibit the person from performing the act specified in the
contract.
2.
RESTITUTION / ACCOUNT OF PROFIT
(SN)
A commits a wrong against B and B sues in respect of that wrong. A will certainly be liable to pay
compensation to B. If B seeks compensation then the Court award will be measured by reference to
the loss that B has suffered as a result of As wrongful act. However, in certain circumstances it will be
open to B to seek restitution rather than compensation. It will be in his interest to do so if the profit that
A made by his wrongful act is greater than the loss suffered by B.
Whether or not a claimant can seek restitution/account
of profit for a wrong depends to a large extent
on the particular wrong in question. For example, in the English law, restitution for breach of fiduciary
duty is widely available but restitution for breach of contract is fairly exceptional. The wrong could be
of any one of the following types:—
(a) A statutory tort;
(b) A common law tort;
(c) An equitable wrong;
(d) A breach of contract;
(e) Criminal offences.
Notice that (a) to (e) are all causative events. The law responds to each of them by imposing an
obligation to pay compensatory damages. Restitution for wrongs/Account of Profit is the subject
which deals with the issue of when exactly the law also responds by imposing an obligation to make
restitution.
Example: In Attorney General vs. Blake [2001] 1 AC 268, an English court found itself faced with
the following claim. The defendant had made a profit somewhere in the region of £60,000 as a direct
result of breaching his contract with the claimant. The claimant was undoubtedly entitled to claim
compensatory damages but had suffered little or no identifiable loss. It therefore decided to seek
restitution for the wrong of breach of contract. The claimant won the case and the defendant was
ordered to pay over his profits to the claimant. However, the Court was careful to point out that the
normal legal response to a breach of contract is to award compensation. An order to make restitution
was said to be available only in exceptional circumstances.
Restitution to reverse Unjust Enrichment: Cases of intentional torts or breaches of fiduciary
duty often allow for claims of unjust enrichment, as well as cases of statutory torts and breaches
of contract. A plaintiff can even have a claim in unjust enrichment when there is no other substantive
claim.
3.
CONSTRUCTIVE TRUST
(SN)
Constructive trusts in English law are a form of trust created by the courts primarily where the
defendant has dealt with property in an “unconscionable manner”, but also in other circumstances;
the property will be held in “constructive trust” for the harmed party, obliging the defendant to look
after it. The main categories of factors giving rise to a constructive trust are unconscionable dealings
with property, profits from unlawful acts, and unauthorized profits by a fiduciary. Where the
owner of property deals with it in a way as to deny or impede the rig hts of some other person over that
property, the courts will order that owner to hold it in constructive trust. Where profits are made from
unlawful acts, such as murder, fraud, or bribery, these profits will also be held in constructive trust;
Unit - V (Part - A) : Extinction of Liability
225
The most common of these is bribery, which requires that the person be in a fiduciary office. Certain
offices, such as those of trustee and company director, are always fiduciary offices; the Courts may
choose to recognize others where the circumstances demand it. Where someone in a fiduciary office
makes profits from their duties without the authorization of that office’s beneficiaries, a constructive
trust may be imposed on those profits; there is a defence where the beneficiaries have authorized
such profits. The justification here is that a person in such an office must avoid conflicts of interest,
and be held to account should he fail to do so.
Other types of constructive trust not relating to unconscionable dealings are constructive trusts over
property, mutual wills, and arguably secret trusts. Where property is sold or transferred, the signing
of an agreement to do so automatically transfers the equitable interest to the buyer or transferee;
until the property itself is transferred, it is deemed to be held on constructive trust for the recipient.
Mutual wills are irrevocable wills made by multiple people to come into force at the writer’s death;
similarly, these are also considered constructive trusts. Secret trusts are the subject of much debate
over their classification, but one theory holds them to be constructive in nature. Related to
constructive trusts are constructive trustees, or trustees de son tor,t these are where “one, not
being a trustee and not having authority from a trustee, takes upon himseifto intermeddie with trust
matters or to do acts characteristic of the office of trustee”.
Where their actions are reckless or
dishonest, the Court makes that person a constructive trustee, forcing them to account to the
beneficiaries for any loss suffered and look after the trust property in their possession.
DEFINITION: A constructive trust is a trust which is imposed by the courts whenever the defendant
knows that he has dealt with property in an “unconscionable manner”, such as stealing it, possessing
it via fraud, and accepting a bribe while in occupation of a fiduciary office. The constructive trust is
intended to take the property from the defendant’s control, preventing them from causing additional
harm with it. It thus acts regardless of the parties’ intentions.
In Paragon Finance pic vs. DB Thakerar & Co, Millet LJ defined a constructive trust as a trust
wh ich “arises by operation of law whenever the circumstances are such that it would be unconscionable
for the owner of property (usually but not necessarily the legal estate) to assert his own beneficial
interest in the property and deny the beneficial interest of another”. Essentially, a constructive trust
will arise whenever an owner either ignores, or interferes, with the rights of another person with an
interest in that property. There is a distinction between personal and proprietary rights to property. A
constructive trust normally gives a proprietary right to the beneficiary that can be enforced on any other
person. The alternative (a personal right) merely gives the beneficiary the right to recover money
equivalent to the value of the property.
Constructive trusts, under Section 53(2) of the Lawof Property Act 1925 (England), do not require
any particular formalities on creation, unlike express trusts. For them to be valid, however, the
defendant (or “trustee” of the constructive trust) must know that he has dealt with property in an
“unconscionable manner”.
In Westdeutsche Landesbank v Islington London Borough
Council, Lord Browne-Wilkinson wrote that “Since the equitable jurisdiction to enforce trusts depends
upon the conscience of the holder of the legal interest being affected, he cannot be a trustee of the
property if and so long as he is ignorant of the facts alleged to affect his conscience”.
PROFITS FROM UNLAWFUL ACTS: Where acts lead to profit and are illegal, under either the English
criminal law or an established legal principle, equity puts any property acquired through these acts into
a constructive trust. The most common type of trust here is one resulting from bribery; where
somebody in a fiduciary office makes unlawful profit, that money will be held on constructive trust for
the beneficiaries of his office. In Attorney General for Hong Kong v Reid, the Director of Public
Prosecutions in Hong Kong accepted bribes to not prosecute certain people. The Court held that this
was a violation of fiduciary duty, and put the money on constructive trust. An issue with this principle
is that the position of Director of Public Prosecutions is not normally understood to be a fiduciary one.
Rather, the Courts are using fiduciary duties as a method of punishing the defendant; Alastair
Hudson writes that they are “as concerned to punish the wrongdoer as to protect rights in property”.
Whether or not someone is a fiduciary depends on their position. Trustees, company directors, agents
and business partners are all fiduciaries, as in Yugraneftv Abramovich, but other positions may be
recognised by the Court if the misuse of powers in a particular circumstance renders them so, as
in Reid. In Brink’s Ltd v Abu-Saleh (No. 3), a security guard who was bribed to give information on
a cornpany’s security systems, allowing a gang of armed robbers to burgle their warehouse, was
found to be in a fiduciary position. While a security guard would not normally be a fiduciary due to not
holding a senior enough role, in relation to security arrangements the guard would be found to be
acting in a fiduciary capacity. Bribes may also be synonymous with “secret commissions”, where
somebody is given an undisclosed “kickback”.
Murder will make the killer a constructive trustee of whatever property they acquire as a result. This
applies to murder, as in in the Estate of Crippen, inciting someone to murder, as in Evans v
226
The Law of Torts
Evans, and causing death by reckless driving, as in Rv Seymour (Edward). In Re K, it was confirmed
that involuntary manslaughter will not require constructive trusts, and neither will situations where
there is a successful plea of insanity, as in found in Section 1 of the Criminal Procedure (Insanity)
Act 1964. Curiously, there is no requirement that the defendant be found guiity in criminal proceedings;
in Re Sigsworth, it was decided that claims can be brought without criminal proceedings having
taken place providing the defendant is held up to the criminal standards of guilt in the equity case.
In cases of fraud, the same principle applies; the property is held by the fraudster on constructive trust
for the original owner, unless the original owner was involved in the fraud, as in Lonrho pic v Fayed
(No. 2). An exception to this principle is fraudulent misrepresentation, where the courts disagree over
whether it immediatelyforms a constructive trust or requires action by the victim. In Collings v Lee, an
estate agent transferred property to a non-existent purchaser (in reality an alias) and then claimed that
as he was not the transferee, he did not have to pay the vendors; it was held that this fraudulent
misrepresentation meant he held the property on constructive trust. However, in Lonrho, Millett J
held that “A contract obtained by fraudulent misrepresentation is voidable, not void, even in equity.
The representee may elect to avoid it, but until he does so, the representor is not a constructive
trustee of the property transferred pursuant to the contact, and no fiduciary relationship exists between
him and the representee’’.
Fiduciary making unauthorised profits: Where a person in a fiduciary office earns unauthorised
profits as a result of their position, this money will be held on constructive trust. This principle origi
nated with Keech v Sandford, and the rule was first fully defined in Bray v Ford, where Lord
Herschell said: It is an inflexible rule of the Court of equity that a person in a fiduciary position...is
not, unless otherwise authorized, entitled to make a profit; he is not allowed to put himself in a position
where his interest and duty conflict. It does not appear to me that this rule is, as had been said,
founded upon principles of morality. I regard it rather as based on the consideration that, human
nature being what it is, there is danger, in such circumstances, of the person holding a fiduciaryposi
tion being swayed by interest rather than by duty, and thus prejudicing those whom he was bound to
protect. It has, therefore, been deemed expedient to lay down this positive rule. ”
The questions then are fourfold; what is the justification for such a constructive trust, how can
authorization be acquired, who does the fiduciary owe duties to, and what are the remedies for
unauthorized profit-making. The main case on this is Boardman v Phipps, where the House of
Lords espoused two possible justifications:—
The first one is that it is a strict rule that a fiduciary cannot allow for a conflict of interest. As such, if
a fiduciary does do so, he will be required to account to the beneficiaries of his office, regardless of
whether or not he is acting in bad faith.
The second justification is one given by Lords Hodson and Guest in Boardman, which concerned
the use of confidential information by a trustee for the trustee’s personal gain. Hodson and Guest
held that where such a situation arises, the constructive trust is justified not only to avoid conflicts of
interest but also because such information is trust property, and using it for personal gain is misuse.
There is no requirement that the profit be directly made from the fiduciary position, merely in a way that
causes a conflict between the fiduciary’s personal interests and his duties. If a trustee was informed
by the trust s stockbroker that only one parcel of highly sought-after stocks remained and chose to
purchase it for himself rather than forthe trust, he would be taking advantage of the trust and causing
a conflict of interest. On the second issue, Boardman confirmed a defence of authorisation; if the
fiduciary has informed the beneficiaries that he is and will be acting on his own behalf, and received
permission to do so, the property wouid not have been held on constructive trust. The third issue is
who does the fiduciary owe duties to. In Boardman the case was concerning a trust, and it was held
that the duties were towards the beneficiaries. Section 170 of the Companies Act 2006 (England)
provides that in situations concerning companies, the duties of the directors and other fiduciaries
to that company.
are
Where a fiduciary has made unauthorized profits, the remedy is for those profits to be held on
constructive trust. If that profit is no longer available, the fiduciary is “liable to account” to the
beneficiaries. In Sinclair Investment Holdings SA v Versailles Trade Finance (No. 3), Rimer J
explained that this meant the beneficiaries acquire rights over those profits, and the trustee must pay
that money or the money’s worth back to the beneficiaries. If the profits are mixed with other money or
used to purchase property, the beneficiary may trace that property and claim it.
Constructive Trusts relating to property: Many constructive trusts relate the transfer of property.
Those trusts over homes are known as trusts of common intention, and relate exclusively to family
homes. In Lloyds Bank v Rosset, the House of Lords set out the circumstances in which a trust
of common intention can arise. Firstly, where the parties demonstrate that there was an agreement
formed before the acquisition of the property. Secondly, where the parties contribute to the purchase
Unit - V (Part - A) : Extinction of Liability
227
price or mortgage payments and therefore practically demonstrate a common intention to claim
an equitable interest; this second form is similar to one form of resulting trust Common intention
trusts grant a claimant an equitable right to the home, calculated as a proportion of the total value that
corresponds to their financial contributions. The second occasion on which a constructive trust may
arise over property is where a piece of property is sold or transferred. The contract transfers the
equitable interest from the original owner to the other party, which takes place through a constructive
trust. This originated with Chinn v Collins, where it was decided that the creation of such a contract
automatically passes the equitable interest to the buyer, assuming the contract can be completed.
Until it is completed, that property is held on constructive trust by the sellerfor the benefit of the buyer.
This applies to both personal and real property, with additional rules for the transfer of real property
(land).
Constructive trusts also arise with mutual wills; wills created by two or more people at the same
time, with the intention that the wills are completely binding. Normal wills can be altered or revoked;
when one signatory to a mutual will dies, the will irrevocably binds the other signatories. This is
dependent on several things. Firstly, there must be evidence of a contract between the signatories
demonstrating that each would make a will in a certain form, and neither would revoke it, as in Walters
V Olins. Secondly, the will must make it clear that it is to apply to the other party after death. Until a
death occurs, the arrangement is simply a contract and has no effect in equity.
Secret trusts are sometimes considered constructive trusts. They do not follow the Wills Act, 1837
(England); a requirement for express trusts. The argument is that it is such trusts are intended to
prevent fraud by statute. Under this rule, secret trusts would be constructive trusts; the reason
they do not have to follow the Wills Act is because they are created by the Courts. This is a difficult
argument with which to justify half-secret trusts, because since the will mentions the trust, fraud is
not directly possible. A more modern argument is that secret trusts are independent and operate
outside the will. The trust was created by the donor and trustee during the donor’s life, and simply not
constituted until his death; it does not have to follow the Wills Act, because it was not created by a will.
This view was expressed by Megarry VC in Re Snowden, where he said “The whole basis of secret
trusts...is that they operate outside the will, changing nothing that is written in it, and allowing it to
operate according to its tenor, but then fastening a trust on to the property in the hands of the recipie