Law of Tort 

Definition of Tort:
The word “Tort” came from Latin word “Tortum” which corresponds to the English word twist and to the Latin
word delict.
English equivalent word of tort is wrong.
A scientific, suitable and fulfill the definition of tort has not yet been formulated.
In general, tort means a breach of some duty independent of contract giving rise to a civil cause of action and
for which compensation is recoverable.
Evolution of the idea of tort:
Latin Principle “Alterium non leadere” which means don’t do any harm to anybody by your work or act.
Prof. Salmond: Tort is a civil wrong for which the remedy is a common law action for unliquidated damages
and which is not exclusively the breach of a trust or other merely equitable obligations.
Fraser: Tort is an infringement of a right in rem of a private individual giving a right of compensation at the
suit of the injured party.
Frederic Pollock:
Every tort is an act or omission whish as related in one of the following ways to harm suffered by a
determinate person;
i.            It may be an act which without lawful justification or excuse, is intended by the agent to cause harm.
ii.           It may be an act in itself contrary to law or an omission of specific legal duty.
iii.          It may be an act violating an absolute right and treated as wrongful without regard to the actor’s
intention or knowledge.
iv.          Unintentional act or omission causing harm.
Ratanlal: “A tort is an act or omission which prejudicially affects a person in some legal; private rights.”
Clerk and Lind sell: They described torts as “ the wrong independent of contract for which the appropriate
remedy is a common law action.”
Simply it can be said that Tort means a breach of some duty independent of contract giving rise of action and
for which compensation is recoverable and also give rise to some other form of civil remedy exclusively.
Characteristics of Tort: From the definition of tort we can find out the following characteristics of tort.
1. Civil wrong.
2. Independent of contract.
3. Duties for the whole society.
4. Not only intention but also implementation.
5. Remedies.
Differences between tort and breach of contract:
1. As to Definition: Tort is an infringement of right in rem of a private individual where remedies are available.
Contract is consent of two parties which can be implemented by law.
2.  As to Consent: No consent in tort. In contract consent of the parties are important.
3. Rights in rem and rights in personem.
4. As to Nature of the duty: In tort the duty is one imposed by the law and is owed to the community at large.
In case of contract the duty is fixed by the parties and is owed to a definite person.
 5. as to Laws: In tort common law principles are applicable. Contract Act of 1872 is applicable.
Differences between Tort and breach of quasi contract:
1. Tort is an infringement of right in rem of a private individual where remedies are available. Quasi contract
covers those situations where a person is held liable to another without any argument for money or benefit
received by him to which the other person is better entitled.
2. Tort is not any kind of contract. Quasi contract is a hypothetical contract implied by law.
3. Unjust benefit: In the matter of quasi contractual liability a person must get unjust benefit which belongs to
another person. But in the case of tortuous liability there may not any subject of benefit.
4. Rights in rem and rights in personem: In case of tortuous liability the duty is towards persons generally. But
in case of quasi contract the duty is towards a person.
5. Remedies: In case of tort the remedy unliquidated sum. in case of quasi contract the remedy is liquidated
sum
Differences between tort and crime:
1. A tort is an infringement or privation of the private or civil rights belonging to individuals whereas a crime is
a breach of public rights and duties which affects the whole community.
2. In tort the wrongdoer has to compensate the injured party. in crime he is punished by the state. Interest of
the society.
3. In tort the action is brought by the injured party. in crime the proceedings are conducted in the name of the
state and the guilty person is punished by the state.
4. In case of tort we can get remedy by the civil court. In case of crime it is the subject matter of criminal court.
5. In case of tort the remedy unliquidated sum. in case of crime accused get punishment under penal Code.
6. Intention.
7. In case of tort parties can withdraw the case under their mutual consent but criminal cases can not be
withdrawn.
8. Limitation: in tort there is limitation but in case of criminal cases there is no limitation.
Differences between Tort and Breach of Trust:
a. As to Definition:  A tort is an infringement or privation of the private or civil rights belonging to individuals
considered as individuals whereas trust is the branch of law of property. Under it a person called trustee
holds property in his name for the use and benefit of another person called beneficiary.
b. As to Development: common law principles of England; developed in the common law court. Trust is
related with equity. In the court of Chancery it is developed.
c. As to Claim of damage: In case of torts the damage claimed will be a liquidated sum. But in case of breach
of trust it is an unliquidated sum.
d. Right in rem and right in persona
e. Laws: In tort common law principles are applicable. Trust Act of 1882 is applicable.
Types of Torts
1) Intentional Torts: behavior that is intentional in some way, causes injury, and is deemed tortuous
2) Negligent Torts: Behavior that unreasonably risks personal/property injury to another.
3) Strict Liability Torts: Behavior that is tortuous because it causes unlawful personal/property damage to
another, regardless of fault, reasonableness, etc.
GENERAL PRINCIPLES OF TORT
Damnun Sine Injuria:
This maxim means damage without Infringement of any legal right injury. By damnun is meant damage in the
substantial sense of money, loss of comfort, service, health, or the like. By injuria it means a tortious act it
needs not to be willful and malicious. There are many acts which though harmful are not wrongful and give
no right of action to him who suffers from their affects. Damage so done and suffered is called dam
nun Sine Injuries. Damage without breach of a legal right will not constitute a tort. They are instances of
damage suffered from justification acts.
Gloucester Grammar School Masters Case (1410) Y B 11 Hen IV 27
Where it had been held that the plaintiff a school master had no right to complain the opening of a new
school. The damage suffered was mere damnun absque Injury or damage without injury.
Mogul Steamship Co. Vs McGregor(1892) A C 25
Damage done by competition in trade is not actionable.
Injuria Sine Damno
This maxim means that whenever there is an invasion of a legal right the person in whom the right is vested
is entitled to bring an action and may recover damage although he has suffered no actual harm. It can be
said as infringement of legal rights without Damage.
Ashby V White (1703) 2 Ld. Raym 938
The defendant a returning officer wrongfully refused to register a duly tendered vote of the plaintiff, who was
legally a qualified voter. The candidate for whom the vote was sought to be tendered was elected and no loss
was suffered by the plaintiff’s vote. Held that never the less an action lay. The action was allowed on the
ground that the violation of the plaintiff’s statutory right was actionable without proof of pecuniary damage.
There are cases in which an act is actionable as a tort although it has been the cause of no damage at all.
Ubi jus ibi remedium:
This maxim means that “Whenever there is a legal right there is a legal remedy.” sometimes it is expressed
as there is no wrong without a remedy.”
Malice:
The malice is used in two quite different senses in the law of torts. (i) in its ordinary sense it means ill-will,
spite, hatred, evil motive, etc. Such malice is called express malice or actual malice or malice in fact.
(ii) Malice in law means a wrongful act done intentionally without just cause or excuse. Bad will or intention is
Malice.
Shearer Vs Shield (1914) A E 808
Bromage Vs Prasser (1825) 4B 255
J. Bayley: “Malice in common acceptation means ill will against a person but in its legal sense it means
wrongful act done intentionally without just cause or excuse.”
Motive:
Motive has been described as ulterior intent. Motive means will of doing something. In case of tort motives
are irrelevant.
Intention:
Winfield: “Intention signifies full advertence in the mind of the defendant to his conduct which is in question
and to its consequence together with a desire for those consequences.”
Example: When I through a stone at you with the desire that it should hit you and accordingly it hits you. I
have intentionally thrown the stone upon you. Desire of particular consequence.
Such Cases- Natural consequence of your act.
Negligence:
 First sense, it is a mental condition and Secondly, Nature of specific tort. Negligence may sometime mean
Carelessness. Negligence is the breach of a legal duty to take care which results in damage, undesired by
the defendant to the plaintiff. In the modern law of tort the word negligence has two meanings;
1.  It indicates the state of mind of a party in doing an act.
2.  It means a conduct which law deems wrongful.
Blyth vs. Birmingham Waterworks Co. (1856) IIEX 781
Negligence is the breach of a duty caused by the omission to do something which a reasonable man guide
by those consideration which ordinarily regulate the conduct of human affairs would do or doing something
which a reasonable man not do.
Malfeasance, Misfeasance and Nonfeasance:
1. What Law does not permit? Malfeasance is the commission of an unlawful act, for example trespass.
2. Misfeasance is the improper performance of some lawful act. What is just but done unjustly (reading in
library).
3. Nonfeasance means failing to perform an obligatory act. What is yours legal duty- If you fail to perform that
(Primary school books).
Fault: Sir John Salmon was of the view that liability should always be based on fault. A man should be held
liable for a wrongful act only if he has done it either intentionally or with culpable negligence. There is no
justice in making a may, pay a certain amount to the injured party if the act of injury was unintentional or
accidental.
But today the view is difference. It is not now regarded as essential for tortuous liability.
Rayland vs. Fletcher (1868) LR 3HL 330
Defenses to an action in tort:
1. Act of state
2. Judicial acts and quasi judicial acts
3. Executive acts
4. Parental and quasi parental authority
5. Authority of necessity and works of necessity
6. Statutory authority
7. Leave and license
8. Act of God
9. Exercise of common rights
10. Private defense
11. Consent
12. Inevitable Accident
13. Mistake of fact
14. Act causing slight harm
Weaver v. Ward
 “No man shall be excused of a trespass . . . except it may be judged utterly without his fault.”
 Liability is defeated where it appears to the Court that the accident “had been inevitable, and that the
defendant had committed no negligence to give occasion to the hurt.”
Brown v. Kendall
“If, in the prosecution of a lawful act, a casualty purely accidental arises, no action can be supported for an
injury arising there from.”
 “To make an accident, or casualty, or as the law sometimes states it, inevitable accident, it must be such an
accident as the defendant could not have avoided by the use of [due care].”
Discharge of torts:
There are seven different modes in which a tort could be discharged that is to say the remedy ceases to
operate. Where there is a vested right of action may be discharged by seven methods. These are:
1. The death of parties
2. Waiver
3. Accord and satisfaction
4. Release
5. Acquiescence
6. Judgment recovered
7. Statutes of limitation.
Vicarious liability:
In general a man is liable for his own act, but there are exceptional cases where a person is liable for the act
of other person though he had no part in those act. Such liability is called vicarious liability. Some time it is
considered as liability without fault. eg: masters liability for his servant, parents liability for their wards etc. It is
sometimes considered as liability without fault.
Liability for another’s wrongs arises in three ways-
1. Liability by Ratification: Where the defendant has authorized or ratified that particular wrong.
2.  Liability by relationship: where the defendant stands to the wrongdoer in a relation which makes the former
answerable for wrongs committed by the other.
3. Liability by abetment.
1.Liability by Ratification: Where the defendant has ratified that particular wrong.
Ratification meaning: If one person commits a tort assuming to act on behalf of another but without his
authority, and that other subsequently ratifies and assents to that act, he thereby becomes responsible for it.
The person ratifying the act is bound by the act whether it be to his detriment or advantage.
Qui facit per alium facit per se:
He who does an act through another does it himself. In such a case the person authorizing is liable not only
for the tort actually authorized, but also for its direct consequences. The authority may be previous or
subsequent; in the latter case it is known as ratification.
Conditions of ratification:
Three conditions have to be satisfied before one person can be held liable for another’s tort on the ground of
ratification. This are-
1. Only such acts bind a principle by subsequent ratification as were done at the time on his behalf.
2. The person ratifying the act must have full knowledge of its tortuous character.
3. An act which is illegal and void cannot be ratified.
2. Liability by relationship:
Where the defendant stands to the wrongdoer in a relation which makes the former answerable for wrongs
committed by the other, though not specifically authorized.
Vicarious liability may arise where the doer of the act and the person sought to be held liable therefore are
related to each other as-
1.  Master and servant
2.  Owner and independent contractor
3.  Principle and agent
4.  Company and its directors
5.  Firm and its partners
6.  Guardian and wards
Master and servant:
The relation between a master and servant gives rise to four kinds of liabilities: (a) liability of master to third
person.
(b) Liability of servant to third person.
(c) Liability of master to servant.
(d) Liability of servant to master.
Owner and independent contractor:
An independent contractor is one who undertakes to produce a given result without being in any way
controlled as to the method by which he attains that result. Now, the general rule is that for the acts and
omissions of an independent contractor, his employer is not liable to stranger. Nor is the employer liable for
wrongs of servants engaged by the contractor to do the work. He who controls the work is answerable for the
workmen; the remoter employer who does not control is not answerable.
Exceptions to the rule-
1. Where the thing contracted to be done is itself unlawful.
2. Employer retaining control.
3. Legal duty
4. Damage to another
5. Implied warranty
6. Incompetent contractor employed
Principle and agent:
To make a principle responsible for a wrongful act of his agent it is necessary to show-
1. That the act was committed by the agent in the course of his employment although the principle did not
authorize, or participate in the act;
2. That, if the act was beyond the scope of the agency, it must have been expressly authorized by the
principal or subsequently ratified by him.
3. Liability by abetment:
Liability for another’s wrongful acts or omissions arises in three ways. In actions of torts, those who abet the
tortuous acts are as much liable as the tort-feasors themselves
Remedies available with respect to a tort:
Damage
A. Judicial                 Injunctions
Specific restitution of property
Remedies
Re-entry on land
B. Extra judicial       Expulsion of trespasser
Re-caption of goods
Distress damage feasant
Abatement of nuisance
Defamation
 Definition
 Essential elements of defamation
 Different types of defamation
 Differences between slander and libel
 Essentials of defamation
 Self defenses
Defamation
Dixon vs. Holden
“A mans reputation is his property, more valuable than any other property.”
Character and reputation different thing. The character of a person signifies the reality about him. Where as
reputation indicates only what is reported of him by others. It is constituted by public opinion.
Simply we can say that interference with some ones reputation, publishing of such speech which destroys
some ones reputation and which is speech of false that is defamation.
Definition by eminent jurist:
Prof. Salmond:
“The wrong of defamation consists in the publication of a false and defamatory statement respecting another
person without lawful justification or excuse.”
Underhill:
“Defamation means publication of false and defamatory statement about any person without any proper
cause.”
Blackburn and George:
“Publication of false statement which destroys some ones reputation in the sence of right thinking members
of the society it creates defamation.”
Prof. Winfield:
“Defamation is the publication of statement which tends to lower a person in the estimation of right thinking
members of society generally or which tends to make them shun or avoid that person.”
Neville Vs. Fine Arts Inst. (1987)AC 68 (72)
“A statement is said to be defamatory when it was a tendency to injure the reputation of the person to whom
it refers. Such a statement is one which exposes him to hatred, ridicule or contempt or which cause him to be
shamed / shunned or avoided or which has a tendency to injure him in his office, profession or calling.”
Essential elements of defamation:
1. Statement
2. Specific person
3.  Publication of the statement
4. False
5. In the estimation of the right thinking members of the society.
Classification of defamation:
1. Slander
2. Libel
Slander:
It is slander if it is made in some transitory form. Slander is defamation communicated by spoken words or
other sounds addressed to ear or by gestures. Such as word of mouth, gestures.
Libel:
 It is libel if the defamatory representation is made in some permanent and visible form. Libel indicates
something printed or written but it includes also anything recorded in a more or less permanent form
addressed to the eye or which could be seen. Such as painting, photograph, wax work, cartoon, sky writing
by an aero-plane.
Youssoupoff vs. Metro Godwyn Mayer Pictures Ltd. (1934) 50 TLR 581
Russian Princess, “Rasputin – the Mad Monk”
Seduced by Rasputin- vile character, Moral Turpitude.
Differences between Libel and Slander:
1. Permanent and Transitory
2. Oral- by ear and Written- by eye
3. Tortuous liability and criminal liability/ punishable.
4. Intention and Malice
5. Momentary and Actionable per-se
6. Self defense: easier and tuff
7. Repeater- Acknowledged
8. Seriousness: Libel more serious
Essential elements of defamation:
1. Defamatory statement
2. Statement must refer to the person
3. Published by the defendant
4. False
1. Defamatory statement:
 There must be a defamatory statement. Not only written or oral statement, but also cartoon, body language
movement can be considered as statement.
Ridge v. English illustrated Magazine (1913) 29 T.L.R 592
A badly written story written by a grocer’s assistant, was published by the defendants, purporting to have
been written by the plaintiff, a well known writer. Those who would read the story as published would infer
that the quality of the plaintiffs work had deteriorated. Held that the plaintiff was entitled to damage for libel.
Statement must be defamatory in the estimation of the reasonable men:
Sim V. Stretch (1936) 2 AER 1237
The expression reasonable man has been interpreted to mean the right thinking members of the society in
generally.
Three types of statement:
(i) Prima facie defamatory. Rubish, Scallywags etc
(ii) Words capable of innocent or defamatory meaning. Baby
(iii) Words prima facie non defamatory. Gandhizi, Sabina Yasmin etc.
Boydell Vs. Jones (1838) 4M&W 446
2. Statement must refer to the person:
In every action for defamation the plaintiff must prove that the statement refers to a specific person. It is
however not necessary to show that the defendant intended it to refer to the plaintiff.
E. Hulton & Co. Vs. Jones (1910) AC 20
The defendants, in their newspaper, published an article in which one Artemus Jones, described as a
Churchwarden, was accused of living with a mistress in France. The article was written as a fiction, and the
owners of the newspaper were ignorant of the existence of any person who bore that name. Unfortunately,
however, the name so chose was that of a real person, an English Barrister and journalist, and those who
knew him supposed the article refers him. The defendants were liable. Held that “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.”
Heremba Chandra Mitra vs. Kali Prashad (1897) ICWN p465
3. Published by the defendant:
Wenhak Vs. Morgan (1888) 20 QB 635
“Husband and wife is considered as same person in the eye of law. Their discussion is not considered as
publication.”
Ruth Vs. Huth (1915) 3KB 32
If any defamatory statement is communicated by a closed cover (though not sealed) addressed to the
plaintiff, the defendant has no reason to believe that it would be opened or read by any person other than the
plaintiff, the defendant to whom it is addressed. Hence in such a case the letter is, in fact opened and read by
a servant or other person who had no right to do so, there is no publication and the defendant is not liable.
4. False:
The defamatory statement must be false. No evil action lies for the publication of a defamatory statement
which is true.
Self Defences:
1. Justification
2. Fair comment
3. Privilege          
             i. Absolute privilege
             ii.Qualified privilege
a. Justification
Truth of the defamatory statement is a complete defence to a civil action brought in respect of it, and if the
matter is true the purpose or motive with which it was published is irrelevant. The defence that a statement is
true is known as a plea of justification, the defendant being said to justify his statement.
b. Fair comment
Nothing is libel which is a fair comment on a matter of public interest. The defendant has to prove that,
i. The word published related to some matter of public interest.
ii. They are a comment, not a statement of fact.
iii. The comment is fair.
c. Privilege
                        i. Absolute privilege
* Statement made in course of parliamentary proceedings.
* Statement made in course of judicial proceedings.
* Statement relating to affairs of state.
                          ii.Qualified privilege
* Statement made in performance of a duty.
* Statement made in the protection of an interest.
 * Fair reports of proceedings.
Trespass:
Trespass in its widest sense signifies any transgression or offence against the law of offence against nature,
of society or of the country, whether relating to a mans person or to his property.
According to famous Indian writer “Ratanlal & Dhirajlal” Trespass in its widest sense, signifies any
transgression or any offence against the law of nature of society, or of the country, whether relating to a
man’s person or to his property.
So we can say that, every invasion of private property be it ever so minute is a trespass.
In English common law trespass was of three kinds:
1. Trespass quare clausum freight. (Trespass of the Land)
2. Trespass viet armis. (Trespass of the Person)
3. Trespass de bonis asportatis. (Trespass of the Goods)
Definition of Trespass to the land:
Trespass to land is unjustifiable interference with the possession of it. Wrongful entry upon the land of
another. Possession is an important concept in law. The legal consequences which flow from the acquisition
and loss of it are many and serious. Possession is the evidence of ownership. Any unjustified intrusion by
one person upon land in the possession of another will constitute trespass.
Entic Vs. Carrington (1765) 19 Tr 1066
“Every invasion of private property be it ever so minute is trespass.”
Winfield: “If I plant a tree in your land that is trespass. But if the roots or branches of a tree on my land
project into or over your land, that is a nuisance.”
How trespass commits: Trespass to land may be committed by the following three ways.
1. Entry is essential to commit a trespass. (Trespass by wrongful Entry)
2. By remaining there. (Remaining on Land)
3. By doing an act affecting the sole possession of the land. (Placing thing on Land)
Trespass by wrongful Entry:A man is not liable for a trespass committed involuntarily, but he is liable if the
entry is intentional, even though made under a mistake.
Joliffe vs. Willmett & Co. (1971) 1 All ER 478
“An entry upon the lands of another constitutes trespass to land whether or not the entrant knows that he is
trespassing.”
But a person is not liable if his entrance is involuntary.
Aerial trespass:  Trespass in the airspace above land.
“Cujus est solum ejus est usque ad coelum”: Whose is the soil his is also that which is above it.
This maxim does not means any ownership over the infinite space but only means that if  one owns portion of
the earths surface, one also owns anything below or above that portion which is capable of being reduced
into private ownership.
It is also a trespass to place anything on or in land in the possession of another as by driving a nail into his
wall or placing rubbish against his wall. It will mean actual entrance.
Remaining on Land:A person who has lawfully entered into on land in the possession of another commits a
trespass if he remains there after his right of entry has ceased. A license whose license has been terminated
or is extinguished by expiry can be sued as a trespasser if he does not vacate after request and laps of a
reasonable time.
placing thing on Land:  Every interference with the land of another, throwing stones or materials over a
neighbors land is deemed constructive entry and amounts to trespass.
Constructive entry: Planting trees to others land. Placing any animal on others land.
Trespass ab initio:
Abuse of authority: If one who is entitled by law to do an act abuses his authority to do it he is said to be
trespass ab initio. His act is reckoned as unlawful from the very beginning however innocent his conduct may
have been up to the moment of his abuse.
Elias vs. Pasmore (1934) 2KB 174
Two policeman lawfully entered premises to arrest one of the plaintiffs and whilst on the premises took
possession of a large number of documents. Some rightfully and some wrongfully. They were not liable as
trespass ab initio.
Six Carpenters Case (1610) 1 SMLC 134
Six carpenters entered a tavern asked for wine and paid for it. After wards they asked a second supply, but
refuse to pay for it. Held that mere non payment was a nonfeasance which was not sufficient to render them
trespasser ab initio.
Conditions:
1. Authority abused must be given by the law not by an individual.
2. The abuse must amount to a positive wrongful act.
3. Stealing something from a common inn.
Trespass to the person
Trespass to a person means intentional misconduct with a person. Every man has the right to deserve
protection of his life and personality and the others obligation is to protect others right. But sometimes this
right is infringed. Sometimes it happens some wrong with a person, which we can say trespass to person.
The importance of trespass lies in that it can be used for protection of ones liberty and implementation of
constitutional rights, right to movement.
There are three forms of trespass to person:
1. Assault
2. Battery
3. False Imprisonment
Assault:
An assault is an attempt or a threat to do a corporeal hurt to another, coupled with an apparent present ability
and intention to do the act. Actual contact is not necessary in an assault.
Winfield: “Assault is an act of the defendant which causes to the plaintiff reasonable apprehension of the
infliction of battery on him by the defendant.”
Section 351 of the Penal Code provides that:“Whoever makes any gesture, or any preparation intending
or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he
who makes that gesture or preparation is about to use criminal force to that person, is said to commit an
assault”
Tuberville vs. Savage (1669) 1 Mod 3
 “If one strikes another upon hand or in the body it is no assault. But if on intending to assault strikes at
another and misses him, this is an assault. So if he holds up his hands against another in a threatening
manner and says nothing it is an assault.”
Mere words do not amount an assault, but the words which a person uses may give to his gestures
preparation such a meaning as may make those gesture or preparation amount to an assault.
Battery:
A battery is an intentional and direct application of any physical force to the person of another. It is the actual
striking of another person or touching him in a rude, angry, revengeful or insult ant manner.
Winfield says that “Battery is the intentional application of force to another person”
“Cole Vs Turner (1704) 6 Mod 149”
C. J. Holt said that “the least touching of another in anger is battery.”
Innes vs. Wtles (1844) I. C. and K 257 “an unwanted kiss will be a battery”
Differences between Assault and Battery:
1. Touch to body
2. Assault in battery
3. Intention. Gesture, capacity of doing
4. Offence- severe and normal
5. Examples
False Imprisonment:
Every man has the right to movement. False imprisonment is a total restraint of the liberty of a person for
however short a time, without lawful excuse. “Winfied say that” the detention must be unlawful.
To constitute this wrong two things are necessary:
1. The total restraint of the liberty of a person.
2. The detention must be illegal.
Prof. Blackstone: “Every confinement of a person is an imprisonment whether it is in a common prison or in
a private house or in the stocks or even by forcibly detaining one in the public streets.”
There must have been restriction of movement in all direction. If the plaintiff was free to move in any direction
and was only prevented from proceeding in one particular direction then it will not be considered the wrong of
false imprisonment.
Bird vs. Jones (1845) 7 QB 742
The defendant wrongfully enclosed part of the public footpath on hummer Smith Bridge. A person can be
imprisoned while he is asleep, while he is in state of drunkenness, while he is unconscious and while he is
lunatic. Even in these cases a person can go to the court.
Lawful imprisonment:
John Lewis and Co. vs. Times (1952) AC 676
A person was imprisoned in a departmental store. He was suspected of theft.
Self defences:
1. Consent: Volenti non fit injuria
2. Self defence
3. Parental authority
4. Inevitable accident
5. Public safety
 6. Necessity
7. Statutory authority.
Trespass to goods:
Trespass to goods is an infringement of the right of possession not of ownership. There are three types of
torts relating to goods
1. Trespass to goods
2. Conversion
3. Detinue
Prof. Salmond: “Trespass to goods consists in committing without lawful justification any act of direct
physical interference with a chattel in the possession of another person.”
Pollock:“Trespass to goods may be committed by taking possession of them or by any other act in itself
immediately injurious to the goods in respect of the possessor’s interest as by killing, beating or chasing
animals, or defacing a work of art.”
Two forms – it may assume:
a. Taking the thing away from the plaintiffs possession, when it is termed aspiration (removal, seizure etc.)
i. this would amount a crime of theft
ii. To robbery if it was also forcible.
b. Different application of force- damage
i. killing or injuring of an animal
ii. Defacing a work of art.
Damage is not always essential. Even the slightest application of force like touching is wrongful.
Essentials of trespass to goods:
1. Possession (Servant and master; trustee; administrator)
2.  A person in possession, though not the owner can sue.
3.  Jus tertii (Title of third person).
Self defences:
1. Rightful claim
2. Authority of law
3. Consent
4. Negligence of the plaintiff
5. Reception of goods.
# Conversion:
Conversion is the tort committed by a person who deals with chattels not belonging to him in a manner which
is inconsistent with the rights of the lawful owner, by which the latter is deprived of the use and possession of
the chattel.
It is the wrong done by an unauthorized act which deprives another of his property permanently or for an
indefinite time.
A person, who treats goods as if they were his when they are not, is liable to be sued in conversion.
Acts of conversion (How conversion commits?)
1. When the property is wrongfully taken.
2. When it is wrongfully parted with.
3. When it is wrongfully sold.
4.  When it is wrongfully retained.
5.  When there is a denial of the lawful owner’s right.
6. Conversion by denial of rights.
7. Conversion by delivery.
1. When the property is wrongfully taken: Conversion may be committed by wrongfully a chattel out of the
possession of another.
Mills vs. Broker (1919) 1KB
Where a person lopped the branches of fruit trees over hanging his land and appropriated the fruit it was held
that, as the right to pick and appropriate the fruit, he was guilty of conversion and liable to the owner for its
value.
2. Conversion by parting with goods:If a man, who entrusted with the goods of another, put them into the
hands of a third person contrary to orders, it is a conversion.
E.g. you took a book from me, but you gave it to another without returning the book.
Locschman vs. Machin (1818) 2 Stark 311
“The hirer of a piano, who sends it to an auctioneer to be sold, is guilty of conversion, and so is the
auctioneer who refuses to deliver it up unless the expenses incurred be first paid.”
3. Conversion by sell:Wrongfully sale of goods is conversion. Any person who however so innocently
obtains possession of the goods of a person who has been fraudulently deprived of them and disposes of
them whether for his own benefit or that of any other person is guilty of conversion.
4. Conversion by keeping:Where a man has possession of another’s chattel and refuses to deliver it. This
is an assertion of a right inconsistent with his general dominion over it. It amounts to an act of conversion.
Alexader vs. Southey (`1821) 5B & AID 247
“An unqualified refusal is always conclusive evidence of a conversion, but a qualified reasonable and justified
refusal is not”
5. Conversion by destruction:An unauthorized destruction of the plaintiff’s goods constitutes conversion. It
amounts to an adverse exercise of dominion.
Phillpot vs. Kelly (1835) 3 A & E 106
Taking wine from a cask and filling it with water is a conversion of the whole liquor.
6. Conversion by denial of rights
7. Conversion by delivery:  If the defendant delivery the goods of the plaintiff to a third person without the
plaintiffs authority, he is guilty of conversion.
Negligence:
Negligence is the breach of a legal duty to take care which results in damage, undesired by the defendant to
the plaintiff. In the modern law of tort the word negligence has two meanings;
1. It indicates the state of mind of a party in doing an act.
2. It means a conduct which law deems wrongful.
Negligence is a breach of a legal duty to take care. Negligence is a type of legal fault as it sets an objective
standard to which person behavior must conform
Definition given by eminent jurists:
Prof. Salmond: He considers negligence as a state of mind which was an element for liability for torts.
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.”
 Blyth vs. Birmingham Waterworks Co. (1856) IIEX 781
Negligence is the breach of a duty caused by the omission to do something which a reasonable man guide
by those consideration which ordinarily regulate the conduct of human affairs would do or doing something
which a reasonable man not do.
Carelessness:
The law takes cognizance of carelessness. It concerns itself with carelessness only where there is a duty to
take care and where failure in that duty has caused damage. In such circumstances carelessness assume
the legal quality of negligence. Cricket ball case:
Bolton vs. Stone (1951) AC 850
Stone injured by a cricket ball while standing on the highway.
Essentials of negligence:
1. Duty to take care.
2. Absence of due care
3. Actual damage.
1. Duty to take care:
There is no negligence unless there is in the particular case a duty to take care.
Donough vs. Stevenson (1932) AC 562
The law takes no cognizance of carelessness in the abstract. It concerns itself only when there is a duty to
take care and where failure to that duty has caused damage.
a)      The duty must be towards the plaintiff.
Thomas vs Quartermaine (1887) 18 QBD 695
“The dute to take care is not in the air, but towards particular people.”
b)     The duty must be in respect of the particular conduct complained of the duty to take care is not
universal.
Hedley Byrne & co vs. Heller (1963) 2 All E.R
The decision of Lords include the following preparation
1. Negligence may arise not only form the doing or the omission to do an act but also forms a statement; even
there is no contract nor any fraud involved.
2. But such duty to take care in making a statement would arise only where there is a special relationship
between the parties which gives rise to such responsibility. Banker and Customer.
3. Even where there is such special relationship any responsibility for the statement may be avoided by
disclaimer that.
4. Exempt for liability. Judges, Arbitrator etc.
2. Absence of due Care:
Whether the defendants conduct amounts to a breach of duty to take care has to be decided according to the
facts of each case.
Standard of due care is same in all cases: The standard of an ordinarily carful man highest degree of care
which human nature is capable of.
Donoghue V Stevenson (1932) AC 562
You must take reasonable care to avoid acts or omission which you can reasonably foresee would be likely
to injure your neighbor.
Fardon V. Harcourt Riving to (1932) 146 LT
 Defendant parked his car by the road side leaving his dog inside. The dog jumped about and broke the glass
of one of the windows plaintiff. Held defendant was not liable because the injury was due to a bare possibility
which could not have been reasonably foreseen.
“People must guard against reasonable possibilities but they are not bound to guard against fantastic
possibilities”.
Standard of care for negligence:
Stander as a reasonable person. Keeping an umbrella and keeping a loaded gun in the hand. The stander of
care must be different. Same care is not to be taken by a reasonable man.
Different responsibility:
1. In case of a deaf and dumb man.
2. In case of blind man, black glass, white stick.
3. Actual Damage:
It is not enough for the plaintiff to prove that the defendant’s conduct has been negligent; he must also prove
that actual damage has resulted to him in consequences.
Plaintiff must further prove that the negligent act of the defendant is the direct and proximate cause of the
damage.
Contributory negligence:
The term negligence means the breach of duty to another but contributory negligence is also failure to take
reasonable care of ones own self.
Lord Denning:
“Negligence depends on a branch of duty where as contributory negligence does not. Negligence is a man’s
carelessness in breach of duty to others Contributory negligence is looking after his own safety”.
“In pair delicto patio rest condition defendants”
Which means “When both parties are equally to blame, neither can hold the other liable. “
Butterfly V Forrester (1809) 11 East 60: pull in a road, sufficient light, and Driver heat the pull.
The plaintiff is guilty of contributory negligence if the ought reasonably to have foreseen that if he did not act
as a reasonable prudent man, he might be hurt himself.
Common Law – defence for plaintiff.
*Car-Collation with a cycle.
In every case the commonsense test is to be applied…. Where negligence has been the effective cause of
the accident which has resulted in the damage claimed.
Contributory negligence of children. “The age and mental development of the child becomes relevant”.
*Res Ipsa Loquitur (The thing it self speaks)
*The consequence says its own
Gee V metropolitan Railway (1873) R8QB 161.
Traditionally the common law did not impose liability for negligence. There are few offence where negligence
is the basis of liability.
Example: it is an offence to drive a motor vehicle on a road without due care and attention or without
reasonable consideration for other persons using the road (careless driving).
Proving liability for negligence:
Existence of a circumstance is sometime sufficient to establish liability for negligence. Objective test that
means dose the reasonable man share any of the accuser’s characteristics?
Nuisance
The word nuisance is derived from the French word nuire, which means to hurt or to annoy.
Winfield: “Nuisance may be described as unlawful interference with a persons use or enjoyment of land or of
some right over or in connection with it.”
Pollock:“Nuisance is the wrong done to a man by unlawfully disturbing him.
1. in the enjoyment of his property or in some cases
2. In the exercise of a common right.”
Two types of Nuisance:
1. Public nuisance
2. Private nuisance
1. Public nuisance:A public or common nuisance is unlawful act or omission which endanger the lives,
safety, health, Property or comfort of the public or by which the public are abstracted in the exercise of some
right which is common to all members of the community.
E.g: obstruction of a highway; public inn etc.
2. Private nuisance:Private nuisance is an act which affects some particular individual or individuals as
distinguished from the public at large. It is an act which unlawfully interferes with a person in the enjoyment of
his own land or premises.
Different types of Private nuisance:
Two types:     i. Injury to property
ii. Injury to comfort
i) Injury to property:It includes a very wide class of wrongs. Any unauthorized interferences with property or
proprietary rights of another, causing damage is actionable as nuisance.
Branch of a tree, Rights of light, water, air.
The right should be enjoyed
(i)                 peaceably,
(ii)               ii) as an easement
(iii)             iii) as of right,
(iv)             iv) Openly expect in the case light and air,
(v)                v) Without interruption
Public- 60 years;                               Private- 20 years
ii) Injury to comfort:The continual doing of something which interferes with another health or comfort in the
occupation of property is actionable nuisance.
Ringing of large bell; loud music; Shouting etc.
Differences between Public nuisance and Private nuisance:
1) Public and Private Damage: In public nuisance a group of people or commodity becomes harmful but in
case of private nuisance a particular person or person’s damage happens.
2) Civil and Criminal:Public nuisance though it creates tortuous liabilities but it often creates criminal
offence.Private nuisance is just only a tort.
3) Remedy:In case of public nuisance remedy is also punishment.
 But in private nuisance: compensation, injunction or removal.
4) Prescription:Apart from prescription private nuisance may be legalized by the authority.But public
nuisance is never legalized on the ground of prescription.
5) Initiatives:
Difference between public nuisance and private nuisance:
1. As to damage.
2. As to civil and criminal nature.
3. As to remedy.
4.  As to legalization on the ground of prescription.
5. As to initiative.
Condition of Actionable nuisance: (Essentials)
1) Actual damage
a) Material injury to property
b) Sensible personal discomfort in the beneficial use of property.
2) Reasonableness:
3) Malice
4) Interference
a. Unlawful interference
b. Title of the plaintiff
c. Damage
d. Malice
Self Defences:
1. Prescription
2. Statutory authority
3. Abatement
No defence:
1. Coming to the nuisance
2. Beneficial to the public
3. Contributory
4. Reasonable cause.
Liability of an occupier:
1. Though he is not the owner.
2. Occupier not liable- By taking reasonable steps- capacity and resources
Benjamin vs. Storr (1874) 9C.P. 400
Hares wagons kept outside the house of plaintiff for an unreasonable time. The access of custom was
abstracted. The house was darkened; the people in it were annoyed by bad smells. Held that the damage
was sufficiently particular, direct and substantial to entitle the plaintiff to maintain an action.
Manchester Corporation V. Fornworth (1930) Ac 171
When a satute expressly authorises an act to be done by a certain person…………………
Malicious prosecution
Every man has some reputation right every honest citizen wants protection from being unnecessarily dragged
before a court of law for unnecessary variation worry and unjust charge brought against him.
 When some body sue against an innocent man, file a criminal case, and it is proved that the case in vague.
Then it may be called malicious prosecution.
The tort of malicious prosecution consists in unsuccessful criminal proceedings against another person,
maliciously and without reasonable and probable cause.
Civil suit is not actionable
What things are to be proved by the plaintiff?
1) Prosecution by defendant
2) Termination of proceeding in favor of plaintiff
3) Reasonable and probable cause
4) Malicious intention
5) Damage of the Plaintiff
1) Prosecution by defendant:
a. Plaintiff was prosecuted
b. defendant was the prosecutor
Nagendra Nath Roy vs. Basanta das Bairagya (1922) 57 cal 25.
“Here the defendant had merely given information of his honest suspicion about the police without further
interference on his part launched a case against the plaintiff. Held there was no prosecution by the
defendant.”
2) Termination of proceeding in favor of plaintiff:
That the proceedings complained of terminated in favor of the plaintiff if from their nature they were capable
of terminating.
Herniman vs. Smith (1938) AC 305
“Even if the plaintiff is convicted by the trial court but the conviction is set aside in appeal, the plaintiff can sue
for malicious prosecution.”
Not on the date of filing criminal suit against plaintiff but on the date when it is terminated.
3) Reasonable and probable cause:
The prosecution was instituted without any reasonable or probable cause
Firstly – honest belief.
Secondly – existence of circumstances.
Thirdly – Circumstances based on reasonable grounds.
4) Malicious intention: If there is no reasonable and probable cause.
5) Damage:
Chief Justice Holt:  Three types of damage
1. The damage to a man’s as where the matter where of he is accused is scandal.
2. The damage done to the person as where a man is put in danger of loosing his life, limb or liberty.
3. Damage to his property.
a. Damage of reputation
b. Damage to person
c. Damage to property
Differences between malicious prosecution and False imprisonment:
1. Existence of a proceeding.
2. Movement.
3. Permission of judicial authority
4. Malice
5. Prove
6. Damage of the plaintiff
7. Constitutional and criminal
Differences between malicious prosecution and False imprisonment:
1. Malicious prosecution is wrongfully setting the criminal law in motion but false imprisonment is wrongfully
restraining the personal liberty of the plaintiff.
2. The action of false imprisonment owes its origin to the writ of trespass whereas the history of malicious
prosecution may be traced back to the old writ of conspiracy.
3. The purpose of the tort of false imprisonment is to protect the liberty of a person. The purpose of the law of
malicious prosecution is to check the abuse of legal process.
4. To constitute false imprisonment restraint on the freedom of movement is essential but restraint on
personal liberty is not an essential element of the tort of malicious prosecution.
5. In malicious prosecution must be before a judicial authority but in false imprisonment restriction on
movement is by the defendant or any other person for whose acts he is responsible.
6. In case of malicious prosecution damage must be proved by the plaintiff but in false imprisonment damage
is not an essential element.
7. In malicious prosecution malice is essential element and must be established by the plaintiff but malice is
not essential in an action for false imprisonment.