Dr. Bharat G. Kaurani Asso. Professor N. B. Thakur Law College, Nasik.

Law of Torts & Consumer Protection Act 1986

Topic 1 Nature of Tort
Introduction
The subject ‘Law of Torts’ is one of the most important branches of law, which owes its origin to the
Common Law of England. The subject is well developed in U.K., U.S.A and other advanced
countries. But in India, it is in the process of development. It is not codified like other branches of
law viz., the Indian Contract Act, 182, The Indian Penal Code, 1860, etc.
Meaning
The word tor has been derived from the Latin term ‘tortum’, which means ‘to twist’. It includes that
conduct which is not straight or lawful, but on the other hand, twisted, crooked or unlawful. It is
equivalent to the English term ‘wrong’.
This branch of law consists of various ‘torts’ or wrongful acts whereby the wrongdoer violates some
legal right vested in another person. The law imposes a duty to respect the legal rights vested in the
members of the society and the person making a breach of that duty is said to have done the wrongful
act.
As ‘crime’ is a wrongful act, which results from the breach of a duty recognized by criminal law, a
breach of contract is the non-performance of a duty undertaken by a party to a contract, similarly,
‘tort’, is a breach of duty recognized under the law of torts. For example, violation of a duty to injure
the reputation of someone else results in the tort of defamation, violation of a duty to not to interfere
with the possession of land of another person result in the tort of trespass to land and the violation of
a duty not to defraud another results in the tort of deceit (fraud).
Thus, it consists of those wrongs or unlawful acts which violate legal rights of a person for which law
provides the remedy of unliquidated damages. It is the duty of every person to respect the legal rights
of others. If a person violates his legal duty he does a wrongful act and if by his act an injury is caused
to the legal right of a person then the aggrieved person can file a suit against him for damages.
The expression ‘wrong’ is of two kinds, namely: (i) Public Wrong; and (ii) Private Wrong. All acts,
which are identified to be punishable under the Indian Penal Code, 1860 are called offences (section
40 IPC) or crimes or public wrongs and are tried in criminal courts.
The rest are called private wrongs and are tried in civil courts. Further, wrong takes place in two ways
viz (i) commission of an act, e.g. Negligent operation/surgery by a doctor, causing the death of a
patient; and (ii) omission of an act e.g. omission or failure to give medicine by a nurse, causing the
death of patient.
The term ‘tort’ literally means ‘a wrongful act committed by a person, causing injury or damage to
another, thereby the injured institutes (files an action in civil court for a remedy, viz., unliquidated
damages or injunction or restitution of property or other available relief. The expression “unliquidated
damages” means “the amount of damages to be fixed or determined by the court”.
The person who commits tort is called “tort feasor” or “wrongdoer”. The other person who suffered
injury or damage (as a consequence of tort) is called injured or aggrieved.

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Dr. Bharat G. Kaurani Asso. Professor N. B. Thakur Law College, Nasik.

Nature and Definition of Tort

The law of torts signifies violation of great variety of rights and duties and so it is very difficult to
give a concise and complete definition of it. Another difficulty is that the Law of Torts is not a codified
law. It is based on Common Law of England which is unwritten and uncodified.
Secondly, it is an ever growing law and the courts are expanding its horizon continuously by
recognizing new torts. In view of these reasons, it is not possible to give a perfect and scientific
definition of the law of Torts which would include all its aspects. Inspite of this difficulty, many
jurists have attempted to give some definition. Some of the leading definitions are as follows:
1. Section 2(m) of the Limitation Act, 1963
Tort means a civil wrong which is not exclusively a breach of contract or breach of trust.
2. Salmond – According to Salmond “A tort is a civil wrong for which the remedy in common law
is action for unliquidated damages, and which is not exclusively the breach of a contract or the breach
of trust or the breach of other merely equitable obligations.
Thus according to Salmond’s definition a tort consists of the following essentials:
(1) Tort is a civil wrong;
(2) This wrong is different from breach of contract or breach of trust or other equitable
obligations;
(3) This tort is redressable by an action for unliquidated damages.
3. Dr. Winfield - According to Dr. Winfield, “Tortuous liability arises from breach of duty primarily
fixed by the law, this duty is towards persons generally and its breach is redressable by an action for
unliquidated damages”.
Thus according to Dr. Winfield a tort has the following essentials:
1. Tortious liability arises from breach of duty fixed by law;
2. This duty is towards persons generally.
3. Breach of duty is redressable by an action for unliquidated damages.
The basic idea which is indicated by these definitions is firstly, tort is a civil wrong, and secondly,
every civil wrong is not a tort. There are other civil wrongs also, the important of which are a breach
of contract and breach of trust.
As stated above, no such scientific definition of tort has been possible which could explain this wrong
by mentioning various elements, the presence of which could be considered to be a tort. The various
definitions which have been attempted try to follow a negative approach. They explain the nature of
tort by either distinguishing it from other wrongs or by mentioning some of the elements which are
found in a tort but are not there in other wrongs.
When some wrongful act has been done, it has got to be seen first whether it is a civil or a criminal
wrong. If the wrong is found to be a civil one, we have to see whether it exclusively belongs to any
other recognized category of civil wrong like breach of contract and breach of trust. If we find that is
not exclusively any of the other civil wrongs, then we can say that it is a tort.
By examining any one of the above definitions we may be able to understand the real nature of the
law of Torts. As has been said above, none of the definition contains all the aspects of the law of torts.
However, the definition given by Dr. Winfield is considered better by majority of jurists.
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Dr. Bharat G. Kaurani Asso. Professor N. B. Thakur Law College, Nasik.

According to Dr. Winfield a tort has the following elements

1. Breach of Duty fixed by law
Being a member of society a man is bound to observe certain rules made by the society. The basis of
majority of these rule is Dharma (generally in English ‘religion’). For example, to give food to a man
who is starving, to save a man who is drowning in a river, to help such persons it is our social and
religious duty. But we are not bound by law to observe these duties. On the other hand, tortuous
liability arises from breach of a duty fixed by law.
In cases of breach of such duties the aggrieved party can initiate a legal proceeding against the
wrongdoer in a court of law. The court may award damages to the plaintiff. But for breach of social
and religious duties he cannot be compelled to give to any person.
Tortuous liability does not arise from contract or consent between the parties. It is fixed by the law,
for example a rule of law says that if a person makes a defamatory statement against the plaintiff then
the defendant’s liability does not arise on the basis that he has entered into contract with the plaintiff
not to make defamatory statement against him, but his liability arises because the law says that one
who makes defamatory statement will be liable to pay damages to the plaintiff. For the violation of
social rules a person may be condemned by society but he is not liable to pay damages to the plaintiff
for the injury suffered by him.
2. Duty is towards persons generally
In tort duty is towards persons generally and not against some particular persons. Law requires every
person that he should not publish defamatory statements against any person. In other words, some
rights are right in rem i.e., which are available against the whole world and some rights are right in
personam i.e. which are available against a particular person.
Duty is general, on every person and liability may attach to any person who makes a breach of duty.
This also goes to distinguish a tort from contract where duty is cast only on the party who has entered
into the contract.
3. Breach of duty is redressible by action for unliquidated damages
In tort, the plaintiff who suffers any harm from the wrongful act of the defendant, can bring an action
in the court for unliquidated damages because the damage does not arise out of a contract. In case of
breach of contract the defendant is liable for a definite amount of damages. The amount of damages
which an aggrieved person is entitled in tort will be determined by the court.
To sum up, we may define tort as a civil wrong which is redressible by an action for unliquidated
damages and which is other than a mere breach of contract or breach of trust.
Thus, it may be observed that:
1. Tort is a civil wrong;
2. This civil wrong is other than a mere breach of contract or breach of trust;
3. This wrong is redressible by an action for unliquidated damages.
1. Tort is a civil wrong
Wrongs can be classified into - 1. Moral Wrongs and 2. Legal Wrongs
Moral wrongs are not actionable in the court, while legal wrong is actionable in court.
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Dr. Bharat G. Kaurani Asso. Professor N. B. Thakur Law College, Nasik.

The legal wrongs can be classified into two parts;

1. Criminal Wrongs are the crime, against society at large.
2. Civil wrongs are those, which satisfies the condition of liabilities and are remedied by law, which
include tort, breach of contract, breach of trust, breach of other equitable obligations.
Thus tort is a separate, independent branch of civil wrongs.
Torts belongs to the category of civil wrongs. The basic nature of civil wrong is different from a
criminal wrong. In the case of a civil wrong, the injured party i.e., the plaintiff, institutes civil
proceedings against the wrongdoer, i.e., the defendant. In such a case, the main remedy is damages.
The plaintiff is compensated by the defendant for the injury caused to him by the defendant.
In the case of a criminal wrong, on the other hand, the criminal proceedings against the accused are
brought by the state. Moreover, in the case of a criminal wrong, the individual, who is the victim of
the crime, i.e. the sufferer, is not compensated. Justice is administered by punishing the wrongdoer
in such a case.
It is, however, possible that the same act done by a person may result in two wrongs, a crime as well
as a tort, at the same time. In such a case, both civil and criminal remedies would concurrently be
available. There would be civil action requiring the defendant to pay compensation as well as a
criminal action awarding punishment to the wrongdoer.
2. Tort is other than a mere breach of contract or breach of trust.
Tort is that civil wrong which is not exclusively any other kind of civil wrong. If we find that the only
wrong is a mere breach of contract or breach of trust, then obviously it would not be considered to be
a tort.
Thus, if a person agrees to purchase a mobile phone and thereafter does not fulfill his obligation, the
wrong will be mere breach of contract. It is only by the process of elimination that we may be able to
know whether the wrong is a tort or not. First, we have to see whether the wrong is civil or criminal,
if it is a civil wrong, it has to be further seen if it exclusively belongs to another recognized category
of civil wrongs, like breach of contract or breach of trust. If it is found that it is neither a mere breach
of contract nor any other civil wrong, then we can say that the wrong is a tort.
It may be noted that there is a possibility that the same act may amount to two or more civil wrongs,
one of which may be a tort. For example, if A delivers his horse to B for safe custody for a week and
B allows the horse to die of starvation, B’s act amounts to two wrongs breach of contract of bailment
and commission of tort of negligence.
Since both the wrongs are civil wrongs and damages is the main remedy for any kind of civil wrong,
the plaintiff can claim damages either under the law of torts of negligence, or for the breach of contract
of bailment. He cannot claim damages twice.
3. Tort is redressible by an action for unliquidated damages
Damages is the most important remedy for a tort. After the wrong has been committed, generally it
is the money compensation which may satisfy the injured party. After the commission of the wrong,
it is generally not possible to undo the harm which has already been caused.
If, for example, the reputation of a person has been injured, the original position cannot be restored
back. The only thing which can be done in such a case is to see what is the money equivalent to the
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Dr. Bharat G. Kaurani Asso. Professor N. B. Thakur Law College, Nasik.

harm by way of defamation and the sum so arrived at is asked to be paid by the defendant to the
plaintiff.
There are other remedies also which could be available when the tort is committed. It is also just
possible that sometimes the other remedies may be more effective than the remedy by way of
damages. For example, when a continuing wrong like nuisance is being committed, the plaintiff may
be more interested in the remedy by way of injunction to stop the continuance of nuisance rather than
claiming compensation from time to time, if the nuisance is allowed to be continued.
The idea of mentioning the remedy by way of damages in the definition is just to explain the nature
of the wrong. Apart from that, the fact that damages is the most important remedy for tort, and
generally, it is the only remedy after the tort is committed, indicates that the wrong is a civil wrong,
rather than a criminal wrong.
Damages in the case of a tort are unliquidated. It is this fact which enables us to distinguish tort from
other civil wrongs, like breach of contract or breach of trust, where such compensation which has
been previously determined or agreed to by the parties. When the compensation has not been so
determined but the determination of the same is left to the discretion of the court, the damages are
said to be unliquidated.
It is possible in the case of a contract that the contracting parties, at the time of making of the contract,
may make a stipulation as regards the amounts of compensation payable by either of the parties in
the event of a breach of the contract. If it is genuine pre-estimate of the compensation for the breach
of contract, it will be known as liquidated damages. There is no possibility of any such pre-
determination of damages by the parties in the case of a tort.
Generally, the parties are not known to each other until the tort is committed and moreover, it is
difficult to visualize beforehand the quantum of loss in the case of a tort and, therefore, the damages
to be paid are left to be determined at the discretion of the court such damages, therefore, are
unliquidated.
Tort feasor – is a person who commits the wrong and his wrongful act is termed as the tortuous act
or tort.
Example – If X slaps Y who is a complete stranger, X has committed a tort as it is committed against
an individual, the damage caused to Y cannot be calculated in money and both being complete
strangers there is no breach of contract or of a trust.
Conclusion: Thus, a tort may be defined as a wrong consisting of violation of a right recognized and
enforced by law for which the appropriate remedy is an action for unliquidated damages.
Characteristics of concept of Tort
From what is stated above, the following characteristic features of the concept of tort emerge. They
are:
1. A tort arises by the operation of law and not by the consent of any particular person. On this basis
tort may be distinguished from the breach of contract. In contract the wrong complained of arises
from the breach of agreement between the parties.
2. In many tort actions the appropriate remedy is unliquidated damages though it is not the only
remedy available in the field of tort. There are other remedies also, for example, injunction, self-help,
etc. But unliquidated damages is the dominant remedy.
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Dr. Bharat G. Kaurani Asso. Professor N. B. Thakur Law College, Nasik.

3. It is a civil wrong in which legal right of a person is violated.

4. It is different from a breach of contract or a breach of trust.
5. In an action for tort, it is not necessary that the plaintiff must have suffered any pecuniary damages
due to wrongful act of the defendant. Mere violation of any legal right of the plaintiff would render
the defendant liable to pay damages.
According to Federick Pollock tort is an act or omission resulting in breach of duty to an individual
for which he is entitled to get reparation from the wrong doer, and such reparation is unliquidated.1
The definition of tort will become quite clear by distinguishing it from crime, breach of contract and
other equitable obligations.
Distinction between Tort and Crime
Both a tort and a crime resemble each other in that both are violations of rights in rem, and in both,
the rights and duties are fixed by law, irrespective of the consent of parties.
1. Definition
Black Stone defines crime as “an act committed or omitted in violation of a public law either
forbidding or commanding it”. It is an offence against the public. Example murder, rape, theft, etc.
2. As to nature of wrong
Tort is a private wrong, which infringes the legal right of an individual or specific group of
individuals.
Crime is a public wrong which violates the rights and duties of a public as a whole.
The wrong which are comparatively less serious are considered to be private wrongs and have been
labeled as civil wrongs, whereas more serious wrongs have been considered to be public wrongs and
are known as crimes.
There are various wrongs which find, their place both under criminal law and law of torts. Some
examples of such wrongs are Assault, Defamation, Negligence, Conspiracy and Nuisance.
Generally, when the wrong is a serious one or affects a large number of members of the public, it is
placed under criminal law. For instance, if a person causes an obstruction outside a residential
building, as the wrong affects only the residents of the building, it would be considered as a tort of
private nuisance. If, however, a similar obstruction is caused in the middle of a public road, it would
amount to offence of public nuisance stated in section 268 IPC.
3. The person, who commits tort is called ‘tort-feasor’ or ‘wrongdoer’.
The person, who commits crime is called ‘offender’ or ‘criminal’.
4. Place of Trial
In tort the place of trial is civil court. Whereas in crime the place of trial is criminal court (or Juvenile
Court in case of Juvenile delinquents/child offenders).

1
Federick Pollock : ‘Law of Torts’ (15th Edn) p.15.
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Dr. Bharat G. Kaurani Asso. Professor N. B. Thakur Law College, Nasik.

5. As to the procedure
Since tort is considered to be a private wrong, the injured party himself has to file a suit as a plaintiff.
In the case of crime, on the other hand, even though the immediate victim is an individual, the criminal
wrong is considered to be a public wrong, i.e., a wrong against the public at large or wrong against
the state. The criminal proceedings against the wrongdoer are, therefore, not brought by the injured
party but by the state.
6. Tort litigation is compoundable, i.e. the plaintiff can withdraw the suit filed by him.
Criminal cases are not compoundable. However, section 320 Criminal Procedure Code provides for
the compounding of certain offences.
7. As to the remedy available
In the case of tort, the ends of justice are not by awarding compensation to the injured party. In case
of crime, the wrongdoer is punished.
The idea of awarding compensation to the injured party under civil law is to make good the loss
suffered by him. The punishment under criminal law protects the society by preventing the offender
from committing further offences and deterring him and other potential offenders from committing
wrongs.
In tort, the main aim is to recompense the plaintiff for the loss suffered by him from the wrongful act
of the defendant. But in crime, the main task is to teach him a lesson by punishing the accused so that
he may not repeat it in future as well as it becomes an example for others also. However, in certain
exceptional cases, the victim of the crime may be awarded damages from the amount of fine which
is recovered from the accuse i.e. the person sentenced by the court.2
Sometimes, the same set of facts may constitute both a tort and a crime. The civil and criminal
remedies in such a case are not alternative but they are concurrent. The wrongdoer may be required
to pay compensation under the law of torts, he may also be held liable under criminal law.
For instance, if A digs a ditch on a public road resulting in inconvenience to the public at large; A has
committed the offence of public nuisance as defined in section 268, IPC. If X, a passer-by, falls into
that ditch and thereby gets injured, A’s act also becomes a tort of private nuisance as against X. Not
only will A be punished under criminal law for the offence of public nuisance, he will also be liable
to compensate X under the law of torts.
Defamation is a tort, and also a crime under section 499 IPC. In such cases, the injured can file a civil
case for compensation or other relief and can also institute criminal proceedings to punish the
wrongdoer. Both these remedies are concurrent. The wrongdoer may be sent to jail and he may also
be sued for damages. For example, in assault, libel, theft and wrongs to property the wrongdoer may
be prosecuted and at the same time he may be sued for damages by the person suffering the injury.
8. Motive
In tort, barring a few exceptions3 the motive of the defendant is generally not relevant whereas in case
of a crime mens rea, i.e. motive of the accused is an essential ingredient of the offence.

2
Section 357 of the Code of Criminal Procedure, 1973.
3
Motive is relevant only in torts of defamation, conspiracy, deceit, malicious prosecution and nuisance because the very
nature of these torts is such that they cannot be committed without intention.
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Dr. Bharat G. Kaurani Asso. Professor N. B. Thakur Law College, Nasik.

Distinction between Tort and Breach of Contract

Section 2(h) of the Indian Contract Act, 1872 defines contract as “an agreement enforceable by
law”. In a contract, both parties have obligation. If one party fails to fulfill the contractual obligation,
it amounts to “Breach of Contract”. Then, the other party files a suit in the Civil Court to enforce the
agreement.
Both tort and breach of contract are alike, in as much as in both, there is an infringement of private
rights. Moreover, in both, action is taken by the person injured, and the remedy is by way of
compensation or damages.
The following are however, points of difference between the two –
1. Nature of right infringed
A tort is violation of a right in rem, i.e. a right exercisable against the whole world, whereas a ‘breach
of contract is an infringement of a right in personam, i.e. a right exercisable against a definite person
or persons.
A right in rem is a right available against the whole world. Thus, every person has a right not to be
defamed or assaulted, and this right is available to him, not against particular persons like X, Y, or Z,
but against everybody in general. A tort is always a violation of such rights in rem.
As opposed to this, a right in personam is available and enforceable only against a particular person
or persons. Thus, if X enters into a contract with Y, and Y fails to fulfill the terms of the contract, X
has a personal remedy against Y, and strangers to the contract are in no way concerned with the same.
A contract always give rise to a personal right, i.e. a right in personam.
2. Duty
A breach of contract results from the breach of a duty undertaken by the parties themselves. The
agreement, the violation of which is known as a breach of contract is made by the parties with their
free consent. A tort on the other hand, results from the breach of such duties which are not undertaken
by the parties themselves but which are imposed by law.
For example, ‘I have a duty not to assault or defame anyone, or to commit nuisance or trespass over
another person’s land, not because I have voluntarily undertaken any one of these duties, but because
the law imposes such duties on me, or rather on every member of the society. The breach of these
duties, imposed by law, is a tort.
But if I undertake to supply you a mobile phone and then fail to perform the obligation which I have
voluntary undertaken, it is a breach of contract.
Thus, if A assaults B or damages B’s property without lawful justification it is tort. In this case the
duty is a duty imposed by law and that is the duty not to do unlawful harm to the person or property
of another. However, if A agrees to sell 100 quintals of wheat to B for a price, and fails to performs
the contract within specified time; A will be liable for breach of contract.
3. As to damages
Damages is the main remedy both in an action for the breach of contract as well as in an action for
tort. In a breach of contract, the damages may be ‘liquidated’ whereas in an action for tort, they are
always ‘unliquidated’. Damages are liquidated when the sum payable by way of damages is
predetermined, for example, by a clause in the contract.
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Dr. Bharat G. Kaurani Asso. Professor N. B. Thakur Law College, Nasik.

Liquidated damages in a contract should be distinguished from penalty or penal damages. Damages
are liquidated, when it is a genuine pre-estimate of the loss. But when the damages are excessive with
an idea to penalize the party making the breach, they are penal. When the amount payable is not pre-
determined and inelastic sum of money, but the court is at liberty to award such sum at its discretion
as it thinks just, the damages are known as ‘unliquidated’.
There may be certain cases when the same fact results in a breach of contract as well as a tort. If for
example, due to the negligence of a driver, a railway passenger is injured, the railway authorities are
liable for the breach of the contract of safe carriage, there is also tort of negligence which results in
damage to the passenger. Similarly, if I leave my horse with my neighbor for one week and go out
and the neighbor allows the horse to die of starvation, there is breach of contract in as much as the
bailee has failed to exercise due care in the matter, and the bailee has also committed tort of
negligence. The plaintiff cannot claim the damages twice over. He has a choice either to sue for the
breach of contract or for the commission of tort.
Thus, in tort the damages are generally unliquidated and are determined by the court on the facts and
circumstances of the case. However, in contract, the damages are fixed according to the terms and
conditions of contract, for example, suppose A contracts to build a house for B within a year, and on
failure to do so he agreed to pay Rs. 10000 to B as damages. But in tort the damages are not fixed nor
there is any measure by which the plaintiff can estimate it correctly. It is determined by the court on
the basis of facts and circumstances of each case.
5. Consent
In a contract, the obligation is founded on the consent of the parties. In a tort, the obligation arises
independently of any consent, i.e. a tort is inflicted against the will and without the consent of the
other party.
6. Some torts are crime as well such as defamation, conspiracy, deceit, malicious prosecution,
nuisance, but a breach of contract can never be a crime, it shall always be a civil wrong.
Distinction between Tort and Breach of Trust
Breach of Trust means failure to maintain trust property for the benefit of beneficiary by the trustee:
Example A transfers certain property to B upon a trust for the benefit of C. Here A is called settler or
Trust owner; B is trustee and C is beneficiary. B has undertaken to maintain the property for the
benefit of the beneficiary, C. If B misappropriates the trust property, it amounts to breach of trust.
The following are differences between Tort and Breach of Trust
1. The law of torts owes its origin to the Common Law of England. The law relating to trusts owes
its origin to the Equity Courts or the Court of Chancery.
2. The main remedy in Tort is Civil action for unliquidated damages. In breach of trust the remedy is
for liquidated damages i.e. loss caused to trust property as a result of misappropriation by trustee.
Like contract, in trust also the damages are fixed, whereas in tort the damages are not fixed.
Distinction between Tort and Quasi Contract
A quasi contract is not a contract entered into by parties intentionally. It resembles a contract and is
based on the principle of equity that ‘a person shall not be allowed to enrich himself unjustly at the
expense of another’. In other words, a person should not receive or accept any benefit unjustly.

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Dr. Bharat G. Kaurani Asso. Professor N. B. Thakur Law College, Nasik.

For example, A leaves his umbrella at B’s house by mistake B has a quasi contractual obligation to
return the umbrella to A.
In certain situations the law requires that a person should conform to an obligation, although he has
neither committed the breach of any contract nor any tort. For instance, a person in whose house
certain goods have been left by a tradesman by mistake, treats the goods as his own and uses it, he is
bound to pay the tradesman for that goods, such obligations are generally described as quasi-
contractual obligations which Lord Mansfield has called the theory of unjust enrichment, that is,
enrichment of one person at the cost of another.
In a quasi contract, a person gets an undue advantage to which he is not entitled then it is his duty to
return such profit to the person who is entitled to get it. This type of duty is called a quasi contract.
For example if A and B jointly owe Rs. 100 to C, A pays the whole amount to C, B not knowing this
fact, pays again Rs. 100 to C, C is bound to return the amount to B.
As regards the question of duty is concerned both tort and quasi contract are similar because the duty
is fixed by law. Tort and quasi contract differ from each other in the following respects.
The main distinction between a quasi contract and a tort is that the law of quasi contract gives a right
only with respect to money, and generally, it is a liquidated sum of money. Law of torts, apart from
a right to damages, grants other remedies also. Moreover, a claim from damages under the law of tort
is always for an unliquidated sum of money.
Another distinctive point is that in a quasi-contract the duty is always towards a particular person,
whereas under the law of torts, the duty is towards persons generally i.e. against the world at large.
Quasi contract resembles more with contract. It resembles with tort only in this respect that the duty
to discharge, or pay for, benefits received is imposed by law. In one respect it differs both from
contract and tort i.e. where a person has to return anything delivered to him by mistake.
Is it the Law of Tort or Law of Torts? Foundation of Tortious Liability
There is difference of opinion among jurists regarding whether there is any general principle of
tortuous liability. In this respect two competing theories have been propounded by jurists which are
opposed to each other.
According to one theory the number of torts are specific or definite beyond which liability in tort does
not arise. In other words, it is a “Law of Torts”.
According to other theory, all injurious acts which cause harm to other persons are torts, unless there
is any legal justification for it. In other words, it is a ‘Law of Tort’.
First view: Sir, John Salmond is the propounder of this theory. According to Salmond in the
beginning there was no general law of tort in England, but only law of torts, i.e. action could be
brought by the plaintiff against the defendant for certain specific acts and omissions. If the plaintiff
could not bring his case under any of the legal titles then it was presumed that the plaintiff had no
legal complaint against the defendant.
Accordingly, in his famous book Salmond said:
“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”.

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Dr. Bharat G. Kaurani Asso. Professor N. B. Thakur Law College, Nasik.

Thus, according to Salmond there was no English Law of Tort, but it was merely an English law of
Torts, that is, a list of acts and omissions which, in certain conditions, were actionable. So according
to this theory, “there are a definite number of torts and outside these torts, no tortuous liability arises”.
In other words, a particular number of wrongful acts are named as torts. If the wrongful act
complained by the plaintiff comes within the purview of the said specific number of torts, then only
the plaintiff’s action is maintainable.
This theory limits the number and regulates the frequent creation of new torts by the courts. Salmond
propounded this theory on the ground that “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”.
It is because of this difference that Salmond has entitled his book as “Law of Torts” and not “Law of
Tort”. On the other hand, Dr. Winfield has entitled his book as “Law of Tort”. Salmond’s theory has
been criticized by Dr. Winfield who calls Salmond theory as the “Doctrine of Pigeon Hole” i.e. certain
specific heads of tort outside which there is no remedy.
Second view
Sir Fredrick Pollock was the founder of this theory. The main supporter of this doctrine is Dr.
Winfield. According to Dr. Winfield every wrongful act which causes harm to any person is tort
unless there is some legal justification for it. For example, if I cause injury to my neighbor then he
can sue me for damages even though there may be no particular name of my wrongful act such as
assault, battery, deceit or slander, etc.
According to Dr. Winfield, there is no law of Torts, but law of Tort and his book therefore is entitled,
“The Law of Tort”. This theory enables the courts to create new torts, to provide remedy to every
injured party.
Critical Appraisal
It is clear from the above analysis that, both the theories in fact, are far from reality. They have some
merits and demerits. The first theory regulates the position as particular number of wrongful acts are
listed as torts within the ambit of pigeon-hole. However, it denies remedy to certain injured parties
whose legal rights are infringed, though they deserve to get remedy. Whereas the second theory
enables the court to provide remedy to every injured party if, his legal right is infringed. But it gives
room for the creation of very many number of new torts and leads to complications.
Both the theories in reality may be regarded as not correct, since neither of the two theories is based
on a general principle of liability in tort. In the Second theory, the rules of liability are very wide,
while in the First theory some rules of absence of liability also are wide.
In view of the above, Dr. Winfield made a modification in his stand. He admits that both his, and
Salmond theories are correct, i.e. the second theory is correct from a broader point of view, while the
first theory is also correct from narrower point of view. In the words of Winfield, “From a narrow
and practical point of view, the first theory will suffice, but from a broader outlook, the second is
valid.
From the above discussions, it is clear that Dr. Winfield’s view is more correct and practical. It is true
that the law of tort has developed and is still developing. It is also true that as the law is expanding
we are heading towards a general principles of liability in the law of torts.

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Dr. Bharat G. Kaurani Asso. Professor N. B. Thakur Law College, Nasik.

Topic 2. General Principles/ Essentials of a Tort/ Constituents of Tort

There are certain conditions which must exist before a person is held liable in tort. After examining
various definitions the elements which have come before us are in fact the conditions on which
tortuous liability is determined.
When a person commits a tort, thereby another person suffers damage or injury, the injured party can
resort to a remedy by instituting a civil action. The injured party who has filed civil suit is called
plaintiff, and the person (wrongdoer) against whom the suit is filed is called defendant. The plaintiff
to be successful in his action against the defendant, has to prove the following conditions i.e. the
essential elements of liability in tort.
1. Wrongful Act (Act or Omission)
2. Injuria (Legal Damage); and
3. Legal Remedy. [unliquidated damages].
1.Wrongful Act (Act or Omission)
To constitute tort, there must be a wrongful act committed by the defendant, i.e. the plaintiff has to
prove that the defendant is guilty of committing a wrongful act. The expression ‘wrongful act’ denotes
to commission of an act, which is contrary to law or omission of an act i.e. not doing an act which
amounts to breach of a legal duty.
For example, A commits the act of trespass or publishes a statement defaming another person,
wrongfully detains another person, he can be made liable for trespass, defamation or false
imprisonment, as the case may be.
Similarly, when there is a legal duty to do some act and a person fails to perform that duty, he can be
made liable for such omission. For example, if a corporation, which maintains a public park, fails to
put proper fencing to keep the children away from a poisonous tree and dies, the corporation would
be liable for such omission. [Glasow Corporation v. Taylor (1922)].
Similarly, if the Municipal Corporation, having control of clock tower in the heart of the city does
not keep it in proper repairs and the falling of the same results in the death of a number of persons,
the corporation would be liable for its omission to take care in the matter. [Municipal Corporation of
Delhi v. Subhagwanti AIR 1966 SC 1750]. In the same way, an employer failing to provide a safe
system of work, would be liable for the consequences of such an omission.
It may be noted that the wrongful act or wrongful omission must be one recognized by law. If there
is a mere moral or social wrong, there cannot be liability for the same. For example, if somebody fails
to help a starving man or save a drowning child, it is only a moral wrong and, therefore, no liability
can arise for that unless it can be proved that there was a legal duty to help the starving man or save
the drowning child.
Thus, to constitute tort, the act must be wrongful in the eyes of law and not according to the parties.
Sometimes the question may arise that the act complained of is wrongful according to the plaintiff,
while the defendant contends that the act is not wrongful. Whether it is wrongful amounting to tort
or not, is to be decided by the court.
2. Injuria (Legal Damage)
In order to be successful in an action for tort, the plaintiff has to prove that there has been a legal
damage caused to him. In other words, it has got to be proved that there was a wrongful act (an act or
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omission) causing breach of a legal duty or the violation of a legal right vested in the plaintiff. Unless
there has been violation of a legal right, there can be no action under the law of torts.
If there has been violation of a legal right, the same is actionable whether, as a consequence thereof,
the plaintiff has suffered any loss or not. This is expressed by the maxim “Injuria sine damno”. Injuria
means infringement of a legal right conferred by law on the plaintiff, howsoever, trivial, with the
plaintiff’s right. “Damno” means substantial harm, loss or damage in respect of money, comfort,
health or the like. Thus, when there has been injuria or the violation of a legal right and the same has
not been coupled with a damnum or harm to the plaintiff, the plaintiff can still go to the court of law
because no violation of a legal right should go unredressed.
Since, what is actionable is the violation of a legal right, it therefore follows that when there is no
violation of a legal right, no action can lie in a court of law even though the defendant’s act has caused
some loss or harm or damage to the plaintiff.
This is expressed by the maxim ‘Damnum Sine Injuria’. It means that a damage without the violation
of a legal right is not actionable in a court of law. The reason for the same is that if the interference
in the rights of another person is not unlawful or unauthorized but a necessary consequence of the
exercise of his own lawful rights by the defendant, no action should lie.
Thus, the test to know whether the defendant should or should not be liable is not whether the plaintiff
has suffered any loss or not but the real test is whether any lawful right vested in the plaintiff, has
been violated or not.
The two maxims may be studied in detail:
Injuria sine damno
Injuria sine damno means violation of a legal right without causing any harm, loss or damage to the
plaintiff. Thus, if the plaintiff suffers injury to his legal right, he will have a cause of action to sue the
defendant even though he has not suffered any loss or damage.
The term ‘Injuria’ means infringement or violation of a legal right.
The term ‘Sine’ means without or in the absence of.
The term ‘Damno’ means damage – physical, mental or otherwise.
Thus, the above phrase “Injuria Sine Damno” means ‘infringement of legal right without damage’.
In other words, plaintiff’s legal right is affected, but he has not suffered any loss or damage. In such
a case, the suit is maintainable even though the plaintiff suffers no damage.
There are two kinds of torts. Firstly, those torts which are actionable per se, i.e. actionable without
the proof of any damage or loss. For instance, trespass to land is actionable even though no damage
has been caused as a result of the trespass. Secondly, the torts which are actionable only on the proof
of some damage caused by an act.
Injuria sine damno covers the first of the above stated cases. In such cases, there is no need to prove
that as a consequence of an act, the plaintiff has suffered any harm. For successful action, the only
thing which has to proved is that the plaintiff’s legal right has been violated i.e. there is injuria.
Ashby v. White (1703) – is a leading case explaining the maxim injuria sine damno. In this case, the
plaintiff succeeded in his action, even though the defendant’s act did not cause any damage. The
plaintiff was a qualified voter at Parliamentary election, but the defendant, a returning officer,
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Dr. Bharat G. Kaurani Asso. Professor N. B. Thakur Law College, Nasik.

wrongfully refused to take plaintiff’s vote. No loss was suffered by such refusal because the candidate
for whom he wanted to vote won the election inspite of that. It was held that the defendant was liable.
Holt, C.J. said: “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 of 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”.
In Bhimsingh v. State of J & K AIR 1986 SC 494 the petitioner, an MLA of J & K Assembly was
wrongfully detained by the police while he was going to attend the Assembly session. He was not
produced before the Magistrate within the requisite period. As a consequence of this, the petitioner,
W/O the said MLA sued on the ground that he was deprived of exercising his constitutional right to
attend the Assembly session and for the infringement of his personal liberty guaranteed under Article
21 of the Indian Constitution. By the time the petition was decided by the Supreme Court, Bhim Singh
had been released, but by way of consequential relief, exemplary damages amounting to Rs. 50000/-
were awarded to him.
Damnum Sine injuria
In this case, the plaintiff suffers loss or damage without any injury to his legal right. Hence, the
plaintiff’s suit is not actionable.
The term ‘Damnum’ means damage; physical, mental or otherwise.
The term ‘Sine’ means ‘without’ or in the absence of.
The term ‘Injuria’ means infringement of a legal right.
The above phrase means “Damage without the infringement of legal right”. An act that comes within
the meaning of this maxim is not regarded as a tort and the suit is not maintainable. For instance, A
opens a fancy shop opposite to B’s fancy shop, and the sales in B’s shop get diminished causing loss
to B. If B sues A, it is not actionable.
Thus, Damnum sine injuria means damage which is not coupled with an unauthorized interference
with the plaintiff’s lawful right. Causing of damage, however substantial, to another person is not
actionable in law unless there is also violation of a legal right of the plaintiff. This is generally so
when the exercise of legal right by one results in consequential harm to the other.
“The mere fact that a man is injured by another’s act gives in itself no cause of action; if the act is
deliberate, the injured will have no claim in law even though the injury is intentional, so long as the
other party is exercising a legal right.”
Relevant case law: Gloucestor Grammar School Case (1410)
In this case, the defendant started a school and collected reduced fee from students. As a result, the
students in plaintiffs school transferred to defendant’s school. Due to competition, the plaintiff had
to reduce their fees from 40 pence to 12 pence per quarter. Consequently, the plaintiff suffered loss
and sued the defendant. Hankford J. held that plaintiff’s suit is not actionable on the ground that his
legal right is not infringed by the defendant.
The principle laid down in the instant case is “every person has a right to carry on his trade or
profession in competition with others and if as a result of a healthy business competition, his rival
suffers a loss, then, he is not entitled to recover any compensation”. Here, the defendant by setting up

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Dr. Bharat G. Kaurani Asso. Professor N. B. Thakur Law College, Nasik.

his school near the plaintiff’s school had exercised his legal right and therefore, no action can lie
against him.
Judgment: The court held that the plaintiff is not entitled to any remedy since the defendant in setting
up a school exercised his legal right without infringing the plaintiff’s legal right. Hankford J., while
delivering the judgment observed, “if I have a mill and my neighbor builds another mill thereby 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 like sort, I shall have such
action as the law gives”.
Bradford Corporation (Mayor of) v. Pickles (1895)
The House of Lords went a step further and held that even if the harm to the plaintiff has been caused
maliciously, no action lie for the same, unless the plaintiff can prove that he has suffered injuria i.e.
violation of legal right.
In this case, the plaintiff, the Mayor of Bradford Corporation attempted to purchase the defendant
(Pickles) site. As the defendant demanded high price, the plaintiff purchase another site nearby and
started their work. The defendant for not purchasing their site, maliciously dug deep wells on their
land. As a result, plaintiff’s work were dislocated as the water got diminished and dis-coloured.
The plaintiff municipal Corporation sued the defendant alleging that the defendant was causing
inconvenience maliciously for not having purchased their site at a price demanded by him and
requested the Court to issue injunction restraining defendant’s act.
The House of Lords held that the plaintiff’s suit was not actionable and the defendant could not be
held liable on the ground that the defendant was exercising his lawful right though it was a malicious
one.
The principle laid down in the instant case was, “where a defendant exercises his legal right, though
it is motivated by malice, and such exercise of his legal right results in harm, injury or loss to the
plaintiff, the defendant is not held liable”.
Distinction between the two maxims injuria sine damno and damnum sine injuria
1. Injuria sine damno means an infringement of legal right without damage. Whereas damnum sine
injuria means damage without the infringement of legal right.
2. It is actionable. Damnum sine injuria is not actionable.
3. Plaintiff succeeds even without sustaining actual damage. In Damnum sine injuria plaintiff cannot
succeed though he had sustained damage.
4. Defendant’s act may or may not cause economic injury to the plaintiff. In Damnum sine injuria
defendant’s act causes economic injury to the plaintiff.
3. Legal Remedy (Ubi jus ibi remedium)
The third ingredient of tort is that the wrongful act complained of must be such that it gives rise to a
legal remedy in the form of civil action for damages.
Further, it is enshrined in the Latin maxim, “Ubi jus ibi remedium” that there is no wrong without a
remedy. Thus, legal wrong and legal remedy are co-relative. The principal remedy in tort is
unliquidated damages. However, there are other remedies in tort viz., injunction, abatement,
restitution of property, etc.
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Thus the law of torts is said to be a development of the maxim ‘Ubi jus ibi remedim’ i.e. there is no
wrong without a remedy. This maxim means that where there is a right there is remedy. That is to say
whenever a right is violated the person whose right has been infringed has a remedy against the person
who has violated it.
This principle has been established for the first time in the leading case of Ashby v. White (1703).
In this case it was held that the defendant was liable to pay damages to plaintiff as they had violated
his legal right i.e. right to vote whether he has suffered any loss or not. i.e. where there is a right there
is a remedy. It should, however, be noted that the maxim does not mean that there is legal remedy for
every moral or political wrong. There is no remedy for a solemn promise made without consideration.
A requests B to advance to him a loan of Rs.10000/- which the former needed for his marriage
expenses B agrees to advance the loan but fails. A has no remedy. There is no remedy for oppressive
legislation.
Mental Element in Tort or The Relevance of Motive and Malice for Liability in Tort
It is very important to note the relevancy of motive and malice in law of torts. Mental element is an
essential element in most of the forms of crime. Generally, under criminal law, mere act of a person
is not enough to create his liability, mens rea or a guilty mind is also required. A man, therefore, is
not ordinarily punishable for something which he never meant, or the consequences of which he could
not foresee. It is not so easy to make any such generalization about liability in tort.
In tort cases, it is generally immaterial whether the defendant did the wrongful act intentionally,
unintentionally or maliciously because the main consideration before the court in deciding the cases
is to see whether the act complained of by the plaintiff constitutes violation of any of his legal rights.
If the act does not constitute an infringement of legal right of the plaintiff, his case will be dismissed,
however maliciously it might have been done by the defendant.
Motive
Motive means the reason behind the act or conduct, or an object to be achieved in doing an act. Motive
is the ulterior object or purpose of doing an act. It differs from intention in two ways. First, intention
relates to the immediate objective of an act, whereas, motive refers to the ulterior objective. Secondly,
motive refers to some personal benefit or satisfaction which the actor desires whereas intention need
not be so related to the actor.
When A poisons B, the immediate objective is to kill B and so this is A’s intention. The ulterior
objective of A may be to secure B’s estate by inheritance or under a will executed by him and this
objective will be A’s motive. The motive may be good or bad (evil motive). It is irrelevant. Whereas
malice means evil motive or bad motive or ill-will.
Likewise, if a person in order to save his children from starvation enters into another person’s kitchen
and steals away some food his intention is evil that is committing theft but his motive is undoubtedly
good, as he wants to save the life of his children who were starving to death.
Relevancy of Motive in Tort
Generally, motive is irrelevant in tort. A person cannot be exempted from liability in tort if he
committed an act with good motive. For instance, A enters B’s house unauthorisedly to provide
drinking water to an old man on the road. Here A committed the tort of trespass A cannot be exempted
from the liability on the ground that he committed it with good motive.

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Similarly, a person cannot be held liable in tort on the ground of evil motive (bad motive) if the act
itself is not unlawful. Relevant leading case on this point is
Bradford Corporation v. Pickles (1895)
The defendant with an evil motive dug deep wells on his land to dislocate the plaintiff’s works, since
the plaintiff did not purchased his site. In an action instituted against the defendant on the ground of
evil motive, it was held that the defendant was not liable.
Thus motive is not an essential element in tort. But it is an important element in crime. If an act is
lawful then it will not become illegal because it has been done with bad motive. Similarly, if an act
is illegal then it will not be lawful merely because it has been done with good motive. It is the act, not
the motive for the act, which is regarded essential.
Therefore, a good motive is no justification for acts otherwise illegal and a bad motive does not make
wrongful an act otherwise legal.
Exceptions
Though motive is irrelevant generally, under the following exceptional cases motive becomes
relevant for liability in tort.
1. Evil motive or malice on the part of defendant is one of the essential elements to be proved by the
plaintiff in respect of torts viz., deceit, conspiracy and malicious prosecution.
2. Similarly, good motive becomes relevant to get exemption from liability in tort. In cases of
qualified privilege and fair comment as defence, the defendant can plead exemption in tortuous
liability on the ground of good motive.
Malice
The word ‘malice means ill-will or evil motive, bad motive. It also means to do an act willfully
without any excuse or just cause.
So malice in common acceptation means ill will against a person, but in its legal sense, it means a
wrongful act, done intentionally, without just cause or excuse”.
Malice is not the essential element of tort. Malice is immaterial. It may or may not be present in Tort.
[In Bradford Corporation v. Pickles it was held that malice is irrelevant unless there is injuria i.e.
violation of legal right].
As stated above, malice or evil motive is not relevant for liability in tort. However, it is relevant in
the following exceptional cases:
i.In the torts of deceit, conspiracy, malicious prosecution, and injurious falsehood, the plaintiff has to
prove malice on the part of the defendant.
Example, in case of malicious prosecution the plaintiff has to prove that the defendant started the
prosecution proceeding against him with malice and not for any lawful purpose.
ii.To plead qualified privilege as a defence in tort of defamation malice is relevant. Example
Defamation – when the motive becomes relevant. But when malice is proved then the defence of
qualified privilege will not be available to him.
iii. Causing personal discomfort by an unlawful motive may turn an otherwise lawful act into
nuisance.
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Hollywood Silver Fox Farm Ltd v. Emmett, (1936) – in this case the plaintiff company set up a
farm for breeding foxes and erected a sign saying “Hollywood Silver Fox Farm”. This annoyed his
neighbor, who wanted to develop a housing estate on his land and the said sigh would deter his
customers.
The defendant asked the plaintiff to remove the sign, but plaintiff refused to do so. The defendant
threatened the plaintiff to shoot along the boundary and did accordingly on four subsequent evenings.
It disturbed the animals on the plaintiff’s land. They are extremely nervous and do not breed to loud
noise and may kill the young ones.
In an action by the plaintiff, the defendant was held liable for firing on his land maliciously. The
plaintiff was entitled to an injunction and damages.
Intention
Intention is irrelevant in law of tort. If a person is injured by the act of the defendant then he will be
liable, even though his intention might not be to cause injury to that person. In law of torts, the liability
is determined on the ground that every person knows the natural consequences of his act.
In Guille v. Swan (1882) [Balloon case]
The defendant flew in a balloon but unfortunately has to embark in the garden of the plaintiff. a huge
crowd entered the garden of the plaintiff to witness him as a result of which his garden was damaged.
The plaintiff sued the defendant for damages. The defendant pleaded that he never intended to harm
the plaintiff in such a manner but it happened accidently.
But the court held that defendant was liable because loss to the plaintiff’s garden was the natural
consequence of defendant’s act as crowd would naturally wish to see the person flying in the balloon.
The defendant could force the consequence of his act, and it was sufficient that plaintiff had suffered
loss.
In Wilkinson v. Downston (1879) the defendant in a joke told the plaintiff that here husband had
broken her legs in an accident and was admitted in a hospital. This shocked her and she got seriously
ill. She sued the defendant for damages. The defendant contended that he never intended to cause any
harm to the plaintiff but cut a joke only. But the court held that intention is not an essential element
in tort. the defendant knew the natural and probable consequences of his act which caused the
defendant damages and therefore he was liable, whether he intended it or not.
Fault whether essential element in Tort
According to Salmond ‘Fault’ is the basis of all tortuous liability. There are areas in the law of torts
where state of mind of a person is relevant to ascertain his liability. For example, in assault, battery,
false imprisonment, deceit, malicious prosecution and conspiracy mental element may be necessary
to determine his liability. We have to see whether a particular wrongful act was done intentionally or
maliciously. In such cases mental element becomes necessary.
But there are cases where the mental element is quite irrelevant in determining the liability of the
wrongdoer. In such cases liability may arise even without any wrongful intention or negligence on
the part of the defendant. In such cases defendant cannot take the pleas that he was innocent or there
has been an honest mistake on his part.

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No Fault liability
Thus, there are cases where liability arises without fault for example, cases of strict liability and
Absolute liability. In Rylands v. Fletcher the court has laid down the rule of ‘Strict Liability’ where
liability arises without fault. In that case it has been held that the occupier of land who brings and
keep’s on it anything likely to cause damage if it escapes is bound at his peril to prevent its escape
and is liable for the direct consequences of its escape even if he has not been guilty of negligence.
Another example is the principle of Absolute Liability laid down in M.C. Mehta v. Union of India
AIR1987 SC 1086
According to this principle if an enterprise is engaged in a hazardous or inherently dangerous activity
it is strictly and absolutely liable for the harm resulting from the operation of such activity. The third
example of liability without fault is liability of a master for the tort committed by his servants in the
course of employment. Fourth in modern times liabilities are also imposed by statutes on employee
e.g. Factories Act, the Workmen’s Compensation Act, where the element of fault is absent but they
are held liable.
In case of vicarious liability such as master’s liability for the wrongful act of his servant committed
in course of employment or parent’s liability for tortuous acts of their children or principal’s liability
for the acts of his agent, the defendant i.e. master, parent or the principal as the case may be, is held
liable though his not at fault, or there is no negligence on his part.
In cases covered under the Rylands v. Fletcher rule, the principle of Strict liability applies and it is
not necessary for the plaintiff to prove the fault, negligence or malice of the defendant. This principle
extends to damages caused due to escape of dangerous chattels, explosives, dangerous animals,
electricity, water, etc.
Topic 3 General Defences/ Exceptions/ Justification in tort
When a suit for liability in tort is filed both the parties i.e. the plaintiff and defendant try to win the
case. The plaintiff tries to win by providing the essential elements of the tort complained of similarly,
defendant also tries to win by establishing some defence available against the tort. the defendant can
get exemption from liability in tort by proving a defence available against the tort. in other words, the
defendant justifies the tort committed by establishing a defence and gets exemption from the liability.
Such justification is called “Justification in Tort”.
Thus, acts done in certain special circumstances are not torts, that is, in absence of those
circumstances the same act may become a tort. Acts done in such circumstances are known as
defences of tort or justification of torts.
There are different defences for different torts, for example in case of defamation, the defence of
justification of truth (privilege, fair comment) are available. But there are some general defences
which may be taken against action for number of wrongs. For example, the general defence of
‘consent’ may be taken, whether the action is for trespass, defamation, false imprisonment or some
other wrong.
The following are the general defences;
1. Volenti non fit injuria or consent or leave and licence:
Meaning: Harm suffered voluntarily doesn’t constitute a legal injury and therefore is not actionable.
This principle of law is generally known as volenti non fit injuria i.e. what is consented to is not an
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Dr. Bharat G. Kaurani Asso. Professor N. B. Thakur Law College, Nasik.

injury. When the person consent to the infliction of some harm upon himself, he has no remedy for
that in tort. In case, the plaintiff voluntarily agrees to suffer some harm, he is not allowed to complain
for that and his consent serves as a good defence against him.
So where a plaintiff suffers harm voluntarily due defendant’s act which he has consented to, and the
plaintiff sues the defendant the suit is not actionable. For example, if a patient gives his consent to
the surgeon to perform a surgical operation and the operation is not successful, the surgeon cannot be
sued. Similarly consent given by a player in a lawful game and injury suffered by him. The case of
Raman Lamba a famous cricketer is the best example on this point.
In the same way if I invite you to my house, can I sue for trespass? Answer is no, because I have
consented to your entry upon my land. But if a guest who is to be entertained in the drawing room
enters into my bedroom without my permission, he can be sued for trespass, because his entry into
the bedroom is unauthorized.
A postman entering into the house for delivering letter cannot be sued if he remains within a
permissible limit, because in such a case the consent is inferred but if the postman crosses that
permissible limit he can be sued. Thus, harm suffered voluntarily does not constitute a legal injury
and is not actionable in tort. This principle is enshrined in a Latin maxim ‘volenti non fit injuria’. It
means ‘no act is actionable as a tort at the suit of any person who has expressly or impliedly assented
to it’. The maxim is also known as consent. There may be express consent or implied consent.
i. Express consent
when a person gives direct consent to other person is called an express consent. For example, consent
(or authorization) given by a patient or the parent or guardian of a child, to a surgeon to perform an
operation. I cannot sue the surgeon because I have given express consent for it. Similarly, if a man
enters my house on my invitation then I cannot take an action for trespass against him because he
enters my house with my consent.
ii.Implied consent
Here there is no direct consent is given, but it is inferred from the conduct of the parties. For example
if you are a spectator at a cricket match, you cannot recover the damages if you are injured by ball
while playing by the players because you have impliedly given the consent to sustain the damages
arising out of the match. Therefore, you cannot take any action against the player for any loss caused
to you while playing.
In this way, ‘volenti non fit injuria’ means when the plaintiff gives express or implied consent to the
defendant; and if the defendant commits any wrong due to which plaintiff suffers some hare or loss,
plaintiff cannot bring an action against the defendant. Even though action is brought, defendant can
take the consent as defence and he may avoid his liability.
Following are the different cases which illustrates the ‘volenti non fit injuria’ maxim:
In Hall v. Brooklands Auto Racing Club, (1932) (Racing car case) the plaintiff was a spectator at
a motor car race being held at Brooklands on a track owned by the defendant company. During the
race, there was a collision between two cars, one of which was thrown among the spectators, thereby
injuring the plaintiff. It was held that the plaintiff impliedly took the risk of such injury, the danger
being inherent in the sport which any spectator could forsee, the defendant was not liable for the

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injury caused to the plaintiff as he had impliedly consented to suffer the damage which was incidental
to such sports. Here the defendant can take ‘volenti non fit injuria’ as a defence and avoid his liability.
In Padmavati v. Dugganaika (1975) – while the driver was taking the jeep for filling petrol in the
tank, two strangers took lift in the jeep. Suddenly one of the bolts fixing the right front wheel to the
axle gave way toppling the jeep. The two strangers were thrown out of the jeep and sustained injuries,
and one of them died as a consequence of the same.
It was held that neither the driver of the jeep nor the master of the jeep were liable because firstly, it
was a case of accident and secondly, the stranger had voluntarily got into the jeep and therefore the
rule of volenti non fit injuria was applicable to the case.
Essential conditions of the maxim
To plead the defence of volenti non fit injuria the defendant has to prove the following conditions:
1.Free consent
For successful application of the maxim, the consent must be freely given. If it is obtained by means
of undue influence, coercion, fraud or misrepresentation, it is no consent.
R v. Williams (1923) is a good illustration on the point. In this case, the appellant, a music teacher
was appointed to teach music to a girl under the pretence that his act was an operation to improve her
voice. The girl had no knowledge that he was going to commit rape with her, otherwise, she would
not have given her consent for the act. She gave her consent to the act under the impression that the
appellant was doing the act for improving her voice and not to commit rape with her. She did not
know the nature of act. She misunderstood the very nature of the act which was being done to her.
She had given consent to the act under the mistaken impression that it was a surgical operation. The
plaintiff was held guilty of rape.
2. Consent must given for lawful act. Consent cannot be given to an illegal act
The act to which the plaintiff gives his consent and undertakes to suffer the risk must be lawful and
the method of doing it must also be lawful, otherwise even consent will not be a good defence for the
defendant. Consent cannot make an unlawful act lawful. No person can give consent to commit a
crime.
Thus the maxim is not a licence for the commission of a crime. Example Boxing is lawful but if either
of the competitors uses knife in boxing competition and other party is injured, the party may file a
suit for damages. The reason is that process is unlawful.
3. Mere knowledge is no consent: [Knowledge of risk is not the same thing as consent to run the
risk]:
It is to be noted that volenti non fit injuria is a defence, Scienti non fit injuria is not a defence. The
maxim is not ‘scienti non-fit injuria, which means ‘knowledge implies consent’, but ‘volenti non fit
injuria’, which means ‘mere knowledge as to the risk of danger is no consent’.
To constitute consent and to plead it as a defence the following conditions are to be satisfied:
i. The plaintiff must have knowledge as to the existence of risk.
ii. Voluntary acceptance of such risk by plaintiff.
This principle was enunciated in the case of Smith v. Baker (1891): In this case the plaintiff was
employed by the defendant to work on a drill for cutting rock. The crane which was taking the stones
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Dr. Bharat G. Kaurani Asso. Professor N. B. Thakur Law College, Nasik.

from one side to the other was passing over the plaintiff’s head. A stone fell on plaintiff’s head and
was injured. In an action by the plaintiff, the defendant pleaded the defence of consent on the ground
that the plaintiff had a knowledge as to the existence of the risk.
The House of Lords held the defendants liable on the ground, mere knowledge would not constitute
consent.
Principle: The Principle involved in the instant case is, Employers undertaking dangerous and
hazardous manufacturing processes have a statutory duty to provide safety devices to the
workers/employees and must strictly comply with the safety provisions provided for under the
Factories Act, 1948, Workmen’s Compensation Act,1923; Environment [Protection] Act, 1986 etc.
Failure to comply with the above provisions amounts to breach of statutory duty and is held liable to
pay compensation and hence, the defence is not allowed.
Further, the liability of the employer is strengthened as a consequence of the principle of absolute
liability evolved by the Supreme Court through P N Bhagwati C J in M C Mehta v. Union of India
[Oleum Gas Leak Case AIR 1987 SC 1086].
4.Breach of statutory obligation – i.e. legal duties maxim not applicable
An employer, who is under statutory obligation to protect the employees, cannot take plea of volenti
non fit injuria, and avoid liability.
Exceptions/ Limitation to the maxim: The defence of volenti non fit injuria does not apply in the
following cases:
1. Consent under compulsion or fraud
If the defendant obtains the consent from the plaintiff by fraud, misrepresentation, coercion or undue
influence, it is no consent and the defendant cannot plead the defence.
2.Negligence of the defendant
The defence does not extends to the acts done negligently by the defendant e.g. the surgeon cannot
plead the defence, if he performs the operation negligently.
3.Rescue cases
The maxim volenti non fit injuria is not applicable in rescue cases, where the plaintiff voluntarily
faces a risk to rescue someone from imminent danger created by the defendant. Example X is
negligently driving a car. Y a policeman to save or rescue a child, crossed the road and he himself
was injured. Y can sue X and X cannot plead the defence.
Haynes v. Harwood (1959) In this case, the defendants servant left a two horse driven carriage
unbolted in a busy street. A mischievous boy threw a stone at the horse and it started running
uncontrollably. The plaintiff, a police man in order to rescue women and children stopped the running
horse driven carriage and was injured. In an action by the plaintiff (rescuer), the defendant was held
liable.
4.Unfair Contract Terms Act, 1977(England)
The rule of volenti non fit injuria has now been abolished in case of personal injury or harm resulting
from negligence. It means that the defendant cannot take the plea that the plaintiff had consented to
suffer the risk to his person by a contract. section 2 of the Unfair Contract Terms Act, 1977 limits the

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Dr. Bharat G. Kaurani Asso. Professor N. B. Thakur Law College, Nasik.

right of a person to restrict or exclude his liability resulting from his negligence by a contract term,
or by notice.
2.Act of God or Vis Major [Loss resulting due to natural forces]
Act of God is a good defence available to the defendant to get exemption from liability in tort. It
means act of nature independent of human intervention, which cannot be foreseen by any amount of
human ability and skill, and if foreseen, it cannot be prevented by any means of human care and skill.
Example Earthquake, storm, lightening, heavy rainfall, flood, etc. According to Lord Mansfield, “Act
of God means – something in opposition to the act of man”.
According to Salmond “Act of God” includes those acts which a man cannot avoid even by taking
reasonable care such accidents are the result of natural forces and are unconnected with the agency
of man. Thus the following are the two essential elements of this defence.
i. There must be operation of natural forces
ii. The incident must be extraordinary and not which could be anticipated and reasonably
guarded.
Nichols v. Marsland (1876) is the leading case on this point. In this case, the defendant had
constructed three artificial lakes by damming up a natural stream. The lakes were well constructed
and adequate in all normal circumstances. Once there was an extraordinary heavy rain, which could
never have been reasonably anticipated, and the excessive flow of water from defendants lakes
washed away four bridges that belong to the plaintiff. In an action by plaintiff the defendant was held
not liable on the ground that the loss was due to Act of God. (because the rainfall was extraordinary
i.e. stated to be heaviest in human memory0.
There are three requisites for Act of God as a defence;
i. The activity should be result of a natural cause,
ii. It should be extraordinary in nature and
iii. It should not be within human contemplation.
Occurrence must be extraordinary
In Nichols v. Marsland, the rainfall was extra ordinary heavy, and could not be anticipated. If the
rainfall is a normal one which could be expected in a certain area, the defence of Act of God cannot
be pleaded.
In Kallulal v. Hemchand, AIR 1958 M.P. 48 the wall of a building collapsed on a day when there
was a rainfall of 2.66 inches. That resulted in the death of the respondents two children. The Madhya
Pradesh High Court held that the defendant (appellant) could not take the defence of Act of God in
this case, as that much of rainfall during the rainy season was not something extraordinary but only
such as ought to have been anticipated and guarded against. The appellant was, therefore, held liable.
In Saraswati Parabhai v. Grid Corporation of Orissa AIR 2000 Orissa 13 on 21/7/1995 an electric
pole was uprooted and fell down. The deceased, who was going on the road, came in contract with
live wire. It was contended that it was an act of God as the pole was uprooted because of the rain and
storm. The court rejected the defence on the ground that rains accompanied by lightening and storm
were natural during rainy season. Authorities were expected to ensure that due to rains and storms
there should be no chance of pole with live wire getting uprooted that was not done. Authorities were
therefore, held liable to pay compensation.
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3. Inevitable Accident
By ‘Accident’ we mean sudden occurrence of an event resulting in evil consequences. Accident
means an unexpected injury and if the same could not have been foreseen and avoided, inspite of
reasonable care on the part of the defendant, it is inevitable accident. For example, if the driver of a
vehicle becomes unconscious suddenly and if the accident occurs, it is an inevitable accident.
It is, therefore, good defence if the defendant can show that he neither intended to injure the plaintiff
nor, could he avoid the injury by taking reasonable care. This defence is not available if there is a
negligence on the part of defendant.
According to Sir Fredrick Pollock “Inevitable accidents” are those incidents which a person of
ordinary prudence cannot avoid in spite of all reasonable care on his part in the circumstances in
which they occur”.
If a person does a legal act with reasonable care and another person is injured which occurs in the
circumstances which cannot be avoided, no action can be brought against him. For example, if a
person walks on the public road with sword or drives a motor then it is his duty to take necessary care
and to see that no person is harmed. But if inspite of requisite care accident takes place, and someone
is injured, then he is not liable for that. Law expects a person to take an ordinary care in a special
circumstance, it does not require a person to avoid such incidents which cannot be avoided by any
amount of care.
In Stanley v. Powell (1891) the plaintiffs and the defendants were members of a shooting party. The
defendant fired at a pheasant (kind of bird) but unfortunately the shot from his gun hit an oak tree and
rebounded and injured the plaintiff. It was held that the injury to plaintiff was the consequence of an
inevitable accident and, therefore, the defendant was not liable.
In Padmavati v. Dugganaika (1975) two strangers took lift in a jeep. When the driver was taking
the jeep to the petrol pump station for filling petrol the bolt fixing the right front wheel of the jeep to
the axle gave way and the right wheel flew away from the axle and consequently the jeep toppled and
the two strangers were seriously injured and one of them died. On inquiry it was found that it was a
sheer accident and there was no evidence to show that the defect was patent and could have been
detected by periodical check-up. It was held that the driver and the master were not liable.
In Brown v. Kendall (1850) the plaintiffs and defendants dogs were fighting with each other. The
defendant was beating them in order to separate them and the plaintiff was looking on. (i.e. defendant
friend was trying to separate them, by beating them with the stick in his hand and the plaintiff was
looking from behind the defendant).
In so doing the defendant accidentally hit the plaintiff in the eye inflicting upon him a severe injury.
The plaintiff brought an action against the defendant for damages. It was held that the injury was the
result of accident for which no action could lie. To separate fighting dogs was a legal act and there
was no negligence on the part of defendant in doing the act.
To plead the defence of inevitable accident, the defendant has to establish that the even is
unforeseeable and the consequences are unavoidable inspite of reasonable precautions.

Distinction between Act of God and Inevitable Accident

1.Act of God occurs without intervention of human agency.
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Dr. Bharat G. Kaurani Asso. Professor N. B. Thakur Law College, Nasik.

Whereas inevitable accident occurs with intervention of human agency or by natural force.
2. Act of God cannot be prevented despite utmost care and caution. Whereas Inevitable accident can
be prevented by necessary care and precaution.
3.Act of God is predictable, but cannot be preventable. Whereas inevitable accident is not predictable,
but can be preventable.
4. Plaintiff a wrong doer
When a plaintiff himself has committed a wrong under certain circumstances defendant is not liable.
But Plaintiff is not disabled from recovering by reason of being himself a wrongdoer, unless some
wrongful act or conduct on his own part is connected with a harm suffered by him as a part of same
transaction.
This is also a general defence where defendant can avoid his liability by taking the defence that the
plaintiff was the wrongdoer. Even this principle is well recognized in law of contract also. It means
a person who found his action in upon an immoral or an illegal act, he has no cause of action in the
court of law.
According to the Latin maxim ‘Ex turpi causa non-oritur actio’ which means from an immoral cause
no action arises. In simple words we can say that it the basis of the action is unlawful contract, plaintiff
cannot succeed for his action in court of law.
In other words, we can say that; whenever the plaintiff himself is at fault or wrongdoer he is morally
prohibited to take action against the defendant. For example, if A is going wrong side of the road and
B knocks him, in such situation B is not held responsible for any damage to A because A is wrongdoer
here, (he is at wrong side) provided there is no negligence on the part of B.
If a trespasser enters my premises. I cannot inflict unnecessary injuries upon him and if ay such injury
is caused, the ‘trespasser is liable to an action for the injury which he does; but he does not forfeit his
right of an action for injury sustained”.
In Bird v. Holbrook (1828) the plaintiff was a trespasser as he climbed over defendant’s wall in
pursuit of a fowl, but he was held entitled to damages for the injury caused by a spring gun set by the
defendant without notice of his garden, although the injury would not have occurred if the plaintiff
had not trespassed on the defendant’s land.
As to the question whether defendant can take a defence and escape liability on the pleas that at the
time of his wrongful act the plaintiff was also engaged in doing something wrong. Sir Frederick
Pollock has opined that the mere fact that the plaintiff was also a wrongdoer does not ipso facto
disentitle him from claiming damages from the defendant unless there was some unlawful conduct
on his part which is connected with the harm suffered by him. However, he may be disentitled if his
wrongful act is the real cause of his harm.
Pollock illustrates this by an example. A bridge which was under the control of defendant, gave way
when an overloaded truck of the plaintiff was passing through it. The defendant had put a warning on
either side of the bridge prohibiting carriers which were loaded beyond a certain limit. In this case,
the bridge would not have collapsed had the plaintiffs truck not been overloaded and therefore, the
conduct of the plaintiff itself was the cause of collapse. However, the plaintiff would have succeeded
if he could have proved that the bridge was so ill-maintained that it would have given way even if the
truck had not been overloaded.
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Dr. Bharat G. Kaurani Asso. Professor N. B. Thakur Law College, Nasik.

5.Private defence
Every person has the right to protect his property or person and for this purpose he can use necessary
force. Thus, if a person uses necessary force to protect his person or property and causes harm to
another person, no action can be brought against him.
There are two conditions for the use of force for self-defence. First, the use of force for self defence
will be justified only when there is imminent threat to the person or property of a man. Secondly, the
use of force must be in the proportion in which it is necessary in the circumstances.
In other words, the use of force should not be more than is the anticipated harm; for example, if a
person strikes me, I cannot be justified to use sword or gun against him in self defence. The force
should not be excessive. What force is necessary in the circumstances, in order to protect person’s
property, by a person, is a difficult question to decide. This depends on the facts and circumstances
of each case.
This right of private defence is not only recognized as a defence in law of torts but in criminal law
also. Even the sections 96 to 106 of the Indian Penal code gives right of private defence to every
accused person who acted to protect his life, liberty and property. In simple words, in civil (tort) and
in criminal law every man can take private defence as defence and can be exempted from his liability.
For example, for the protection of your house or property you can fix the broken pieces of glasses on
your compound wall and if any body is injured while climbing it, you are not held responsible. But
whenever you are protecting yourself or property the force used should not be excessive or it must be
a reasonable force. And what force is reasonable, it necessary depends upon the circumstances of he
each case or it differs from case to case.
In Morris v. Nuegent [1836] when the defendant was passing in front of the plaintiffs house he aimed
to shoot plaintiff’s dog who attempted to bite him. The dog ran away. But when the dog was returning
the defendant shot the plaintiff dog dead. It was held that the right of private defence could not be
pleaded. The act was unlawful because he shot at the dog at the time when it was not attacking and
the force used was excessive and, therefore, he was liable.
So if my neighbour’s dog attacks me or my tamed animals, then I have right even to kill him if no
other means are available for self defence.
Now, it is accepted that measure adopted for the protection of property must be reasonable. If the
measures are not reasonable or excessive then this defence of private defence will not be available.
In Bird v. Holbrook (1828) the defendant had put up spring guns his garden but he has not fixed any
notice to public about this. A trespasser entered his garden and was seriously injured by the automatic
discharge of these spring guns. It was held the plaintiff (trespasser) was entitled to recover damages
because the force used in the circumstances was excessive. But if the defendant enters the place
inspite of the notice about the fixing up of the spring guns and is injured, he cannot take any action
against the damage because he takes the risk voluntarily.
Similarly, in Ramanuj Mudawali v. M. Gangan AIR 1984 Mad 103 the defendant had put up live
electric wire on his premises for security purposes but he had not given any notice about the same.
(i.e. no visible warning) about such wire). When the plaintiff was going to his house through, the
defendants property at about 10 ‘o’clock in the night he was seriously injured by electrocution. It was
held that the defendant was liable for the damages.

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Dr. Bharat G. Kaurani Asso. Professor N. B. Thakur Law College, Nasik.

In India the right to private defence has been given a statutory recognition in sections 96 to 106 of
the IPC. Though provisions of these sections are applicable to the criminal law, the principles
contained therein may profitably be imported into the law of torts. Self defence as a permissible
defence against an action in torts has recently been discussed by Orissa High Court in Devendra Bhai
v. Megha Bhai AIR 1986 Orissa 226 the principle extends not only to the right of person to protect
himself but also to protect other’s life, his wife, his parents and his child. He is to use only necessary
force or not to use force in excess of what is necessary.
6.Necessity
When any act is done under necessity to prevent a greater evil is not actionable; even though harm is
caused intentionally. For example, throwing the goods from the ship if it is lighten. By the same way
pulling down the house to stop a further spread of fire.
In time of necessity individual interest is sacrificed. Therefore, damage caused by acts for preventing
greater damage is not actionable even though harm is caused intentionally. For example, if my
neighbor house catches fire and a person pours water on it in order to put it off and thereby causes
some damage to it, he will not be liable. Such acts can be considered to be lawful when there is
immediate necessity for doing it provided it has been done with reasonable care and precaution.
Following are the examples of acts of necessity:
i. Throwing cargo into the sea to lighten the ship in order to save the ship as well as persons on board
of the ship.
ii. To throw water on a house in fire, or putting it down, in order to stop the further spread of fire.
iii. To compel a surgeon to perform operation of an unconscious person to save his life.
In Leigh v. Gladstone [1909] In this case, a lady prisoner was on hunger strike. She was about to
die. The defendant i.e. jail officials had forcibly feeded the prisoner [as it was duty of the jail officials
to preserve the health and lives of the prisoners]. Plaintiff filed a suit against the defendant for battery.
It was held that here defendant was not liable for any compensation or battery because he acted in
necessity to save the life of lady prisoner.
In the above cases the interference had been justified because they were done in order to prevent
greater harm. But if, in the circumstances the interference is not reasonable, or justifiable, the
defendant cannot take the defence of necessity for absolving him from liability. If however, the
interference is not reasonably necessary, the defendant will be liable. In Carter v. Thomas, (1891) –
the defendant, who entered the plaintiff’s premises in good faith to extinguish fire at which the
firemen had already been working, was held liable for trespass.
So the term ‘necessity’ means if a person commits an act intentionally, causing harm or damage to
another, with a view to prevent or reduce the evil consequences thereon, with a view to prevent or
reduce the evil consequences thereon, we say that the act is committed out of necessity. In such a case
that person is exempted from the liability.
In other words, a tort committed by the defendant out of necessity without any negligence on his part
is not actionable. So necessity justifies an act which would otherwise be wrongful.
7. Mistake

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Dr. Bharat G. Kaurani Asso. Professor N. B. Thakur Law College, Nasik.

By the expression, ‘mistake’ we mean an act committed under an honest belief and without any
knowledge that it would injure the right or property of another. Mistake is of two heads namely (i)
mistake of fact; and (ii) mistake of law. Whether it is a mistake of fact or of law it is no defence for
liability in tort.
When a tort is committed by defendant by mistake, i.e. without an intention or knowledge of its evil
consequences to the plaintiff he is liable. For example X enters Y’s house thinking it to be his friend,
Z’s house X is liable for tort of trespass.
In Consolidated Company v. Curtis (1894) An auctioneer was given certain goods by his customer
for auction. The auctioneer, honestly believing that the goods belonged to the customer, auctioned
them and paid the sale proceeds to the customer. But later on it was disclosed that the goods belonged
to some other person. The true owner brought an action for the tort of conversion against the
auctioneer. The defendant took the plea that he had no knowledge of true owner of goods. It was held
that the defendant was liable for the tort of conversion. [Reason it would be difficult for Courts to
decide whether the mistaken belief was infact honest and reasonable].
A mistake of fact is no excuse, except in the cases where motive is an essential ingredient constituting
the wrong.
Exceptions : to this rule there are certain exceptions when the defendant can avoid his liability. If it
is proved that a person of ordinary prudence would have done the same in the circumstances in which
the defendant had done it the defendant will not be liable for his mistake.
For example, in malicious prosecution the plaintiff has to prove that the defendant had acted
maliciously and without any probable and reasonable cause. If the defendant initiates a prosecution
against an innocent person by mistake and no malice or probable cause is proved on the part of the
defendant, he will not be liable. In deceit an honest belief in the truthness of statement is a good
defence.
Similarly, the arrest of an innocent person honestly believing him to be guilty of felony is not
actionable provided there being reasonable grounds for such arrest and the offence must have actually
been committed.
8.Statutory Authority
The expression ‘Statutory Authority’ means power or authority given by law or legislature,
empowering to do an act. If the defendant commits a tort in discharge of a duty under statutory
authority, the injured party has no cause of action unless there is negligence on the part of the
defendant.
For example Maintenance of Railways – if the plaintiffs land is taken over for the construction of
a railway line, he cannot have any cause of action except claiming compensation as provided under
the statute. Similarly no action can be instituted for the harm caused as a result of noise, vibration,
smoke, sparks, etc by running railways. Here the interest of the defendant is outweighed in the interest
of the public as a whole.
The defence of statutory authority cannot be pleaded when there is a negligence on the part of the
defendant. In this way statutory authority is also a good defence to the Government authorities.
In Hammer Smith Rail co. v. Brand (1869) the defendants had been authorized to run trains on a land.
The plaintiff had a land near the railway line. Due to noise, vibration and smoke caused by running
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Dr. Bharat G. Kaurani Asso. Professor N. B. Thakur Law College, Nasik.

of trains, the value of the plaintiff’s property was considerably depreciated. The plaintiff sued the
railway company for damages.
The court held that the damage done to the plaintiff was incidental to the running of trains authorized
by the statute and, therefore, the defendant railway company was not liable.
Absolute and Conditional authority
Under the statute the authority may be of two kinds absolute and conditional. The damage caused by
an act done under absolute statutory authority is not actionable. In the case of conditional authority
the statute permits doing of such acts, but at the same time puts a condition on the manner of its
exercise so that they may not cause any harms to others. Such restrictions may be express or implied.
Thus the statutory authority may be absolute or conditional. When it is absolute or mandatory, it
confers immunity not only in respect of act itself, but also all the necessary consequences of the act.
Example to acquire land for laying down the rail road.
Conditional statutory authority on the other hand confers immunity provided the act has been done
in strict conformity with the private right of an individual.
In Metropolitan Asylum District v. Hill 91881) – the appellants a local Municipal Corporation had
authority to set up a small pox hospital. They started contracting the hospital in a residential area
which created the danger of infection of disease to the residents of the area. It was held that to establish
a small pox hospital in a residential area was a nuisance and the appellants were prevented to construct
the hospital by issuing injunction.
In such a case like construction of small pox hospital, the statutory authority is generally conditional.
The appellants could construct the hospital provided that could be done without creating a nuisance.
It does not mean that a person should be prevented to do an act on the ground of nuisance. Whether
there had been nuisance or not will be determined on the basis of facts and circumstances of each
case. The Railways Acts are generally construed to be conferring an absolute authority to set up the
railway, whether any nuisance is thereby caused or not.
9.Parental and Quasi Parental Authority
The acts of parents, quasi parents i.e. teachers and the masters of the Disciplinary Authorities for the
purpose of correcting the children, and to mould them as good citizens, are not subject to any liability
in tort. No suit for assault, battery or false imprisonment can be instituted against them, provided the
acts are reasonable, bonafide and within the moderate limits.
Parental Authority
Parents, under authority of law have right to inflict moderate and reasonable pains on their children
and confine them in the interests of their bright future. But the right of parents to punish the child is
subject to reasonable cause and within the moderate limits. For instance, if the parents confine the
child or young daughter to abandon bad company, the parents act is justified and the parent’s cannot
be sued for wrongful confinement.
Quasi Parental and Disciplinary Authorities
School Teachers, and masters of disciplinary authorities are not subject to liability in tort for their
acts provided they have the consent of the parents. They can take the liberty of inflicting reasonable
punishment with the consent of the parents.

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Dr. Bharat G. Kaurani Asso. Professor N. B. Thakur Law College, Nasik.

The authority of a teacher on his students are like the authority of a father on his son. A teacher can
give reasonable punishment to his pupils. A teacher gets this authority from the parents for their pupils
when they send their child to a school for study.
In Rex v. New Port L R (1929) a school teacher punished a pupil by canning five times for smoking
outside the premises of the school. According to a rule smoking was prohibited in the premises and
outside the premises of the school. It was held that when a father sends his son to the school he
authorizes the teacher to give reasonable punishment for the violation of the school rules. It was held
that the punishment was reasonable and necessary.
The exercise of force or restraint for the purpose of correction, chastisement of training, whether it
be towards the child by its parents, or towards the pupil by the school master; or towards the lunatic
by his custodian, gives no cause of action, provided it be done reasonably and bonafide, and within
moderate limits.
10. Judicial Acts
No suit will lie against a judge for acts done and words spoken in his judicial capacity. This rule of
judicial immunity is founded on the principle of public benefit that judges should be at liberty to
exercise their functions with independence and without any fear of consequences. If they have to
perform their functions in continuous fear, they cannot give impartial justice to the people. Impartial
justice is the foundation of judicial independence.
The law in respect of judicial officers in India has been enacted by the Judicial Officers Protection
Act, 1850. Section 1 of the Act provides that “no judge, magistrate, justice of peace, collector, or
other person acting judicially shall be liable to be sued in any civil court for any act done or ordered
to be 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, believe himself to have jurisdiction to do the
act complained of”. The Act provides for the protection of the ministerial staff who execute the
warrants of the courts.
In India, the Act provides immunity to higher and subordinate both courts from Civil liability in tort.
But there is an important restriction on this immunity in India, that is, the judges must in good faith
believed himself to have jurisdiction to do the Act.
In Saijanand Pande v. Suresh Chandra Gupta AIR 1969 Pat 194 – the Patna High Court did not
extend the protection to the Magistrate under Judicial Officer’s Protection Act, 1850, and held him
liable for the wrong of false imprisonment as he acting mala fide, illegally and outside his jurisdiction
ordered the arrest of the plaintiff. Indian Parliament has enacted the Judges Protection Act, 1985. The
Act has further widened the scope of protection to Judges while doing Judicial work. It has also
widened the definition of the word ‘Judge’.
11.Executive Authority
The state and its executive officers are given certain privileges by the constitution and statutes passed
by the legislatures. They can under the exercise of their duties invade certain rights of the individuals
without being liable to any damages. No action can be brought against these authorities for nay injury
done in exercise of their authority. But it must be borne in mind that if the public officers do illegal
acts or if their authority is improperly exercised they can be held liable.

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Dr. Bharat G. Kaurani Asso. Professor N. B. Thakur Law College, Nasik.

An officer who commits a tort in direct obedience to the orders of a public authority, civil or military,
which are apparently valid, is not, liable to an action in tort. The principle of the rule is that unless
the officers enjoy such immunity, public administration would not be possible. In fact, that principle
has been extended to this extent that even private persons are in many cases entitled and in some,
bound to give aid and assistance, or to act by themselves in executing the law; and in doing so they
are similarly protected.
No action will lie against an officer who executes the orders of a public authority, which are
apparently valid. So is the case with the execution of the orders of a court of law. This immunity is
based upon the principle that if officers are not accorded this immunity, it will not be possible to carry
on the administration.
In Indian Judicial Officer’s Protection Act, 1850 protects not only the judges but also the officers
of the court. There are other legislative enactments for the protection of other public officers. For
example, Police Acts protects the police officers. If the officers discharge some statutory duties, they
cannot be held liable unless it is proved that they had dishonest intention and wanted to injure the
plaintiff.
12. Exercise of Common Rights
Every person has complete freedom to exercise his common or ordinary rights, even though it may
cause damage to others. But the restrictions is that the rights must be exercised in good faith and in a
lawful manner. This is indeed true because otherwise it will not be possible to carry on the common
affairs of like without doing various things which are more or less likely to cause loss or
inconvenience to others. It includes those cases to which the maxim damnum sine injuria applies.
Thus completion in trade or business is permissible even though it may cause damage to others,
provided legal rights of others are not infringed and unlawful means had not been used in the
completion.
Every person is entitled to make lawful use of his property or land. Even, the bad intention or motive
will not have any effect on this right. Thus if a business man sells his goods to a lower price than
other business man and more customers go to him, no action can be brought against him. Similarly,
if a man dug a well on his land and thereby causes some damage to his neighbour, no petition can be
brought against him.
13. Acts causing slight harm
The law does not take account of trifles or an ordinary damage to a person caused by an act of person.
Such acts are not wrongs under the law of torts against which an ordinary prudent person will never
complain. Every man, every time, does certain acts which causes some harm to others, such as,
dashing a person while walking on public road, falling of dust or water caused by fast running of a
car. After the end of a show in cinema, A without any bad intention and in order to come out quickly
touches B’s person; court will not take this trifling an immaterial matter in account. Similarly, a
number of persons in their anxiety not to miss the train, may push incidently each other to enter the
door of the compartment first. These are such acts which the life of man in society will become
impossible.
But the maxim will not apply in cases which involve infringement of legal rights of person. For
example, A walks across B’s field without B’s leave, doing no damage A has wronged B, because

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the act, if repeated, would tend to establish a claim to a right of way over B’s land. In such type of
cases the maxim injuria sine damnum, which has been discussed in detail earlier applies.
Under section 95 of the Indian Penal Code no action can be taken for such trifles. But this maxim will
not apply to cases where legal rights of a person is infringed because smallest harm caused to the
legal right of a person is actionable under the law of torts.
14. Act of State
An act of State is an act which the king executes of his absolute and extraordinary power. An act of
state is basically an exercise of sovereign power of a state and hence it cannot be challenged in a court
of law because the courts cannot question its validity. Act of state is thus, an exercise of power by a
state against an alien, that is, a foreigner.
An act done in exercise of sovereign power in relation to another state or subjects of another state is
an act of state and cannot be questioned by municipal courts. The sanction behind these Acts are not
law but of sovereign power. Acts done by the public officials, if done with the prior approval of the
state may render their acts as an act of state. The acts of state affects only foreign nationals living in
a country. It is not available against the citizens of own country. The citizens of the country are
governed by its own laws.
If the Government of India acquires a foreign territory and annexes it to the Indian territory the
residents of that territory or that state cannot take any action against the Indian Government. If an
injury is caused to a foreign nationals by an act done in exercise of its sovereign power, he cannot
take any action against it, such as declaration of war and peace, blocked, treaty of peace, acquisition
of foreign territory, etc. In such cases the foreign national to whom injury had been caused by such
acts could seek remedy through diplomatic means/actions.
In India, the English law relating to act of state is followed. An act of state is not available against a
citizen. Acts of state are used against another sovereign state or its subjects, and is based on policy
consideration and not on law and therefore they are not justifiable by the municipal courts.
Sovereignty and act of state
The act of State is out of Sovereign power and hence cannot be challenged, controlled by any court.
The act of the state is classified in two:
Sovereign act, and (b) Welfare Act.
The Sovereign act of state is justified and Indian Courts are debarred from taking cognizance of act
done in exercise of sovereign power example military, defence, destruction by war.
Ramachandra Gunda Kulkarni v. State of Mysore – the state Government constructed water
reservoir across river. Construction was over but there was no outlet for excess water to go. There
was heavy rain. Water was stored in excess. As there was no outlet excessive water flooded in the
agricultural land of plaintiff. crops were washed out. Therefore, plaintiff sued Govt. for damages for
negligence. As it was a welfare act the Government was held liable to pay compensation for losses.

Topic 4 Personal Capacity [Capacity of Parties]

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Dr. Bharat G. Kaurani Asso. Professor N. B. Thakur Law College, Nasik.

The expression ‘Capacity of parties’ refers to the persons who are competent to sue and be sued for
liability in tort. The general rule is, everyone has a right to sue and is liable to be sued. However, this
rule is subject to certain exceptions, as there are certain persons or entities that enjoy some special
privileges and immunities in an action in tort.
According to Pollock there is no limit of personal capacity to sue for damages for personal injuries.
There are, however, certain exceptions to this rule, i.e. there are some persons who are incapable to
sue and there are others who are incapable to be sued. It may be explained as follows:
Who cannot sue?
Who cannot be sued?
(A) Who cannot sue?
Ordinarily, all persons are entitled to sue in tort. But the following are the exceptions to this rule. In
other words, such persons cannot sue in tort due to their personal disabilities.
The following persons are not capable to sue the defendant under the law of torts:
1.Convicts
A convict is a person who has convicted for an offence and sentenced to imprisonment. [In England,
a felon is a person who has committed a serious crime such as murder or rape or any crime of this
type]. In other words, a felon or convict is a person against whom a judgment of death or penal
servitude has been pronounced on any charge of treason or felony.
Originally, under the common law i.e. in England, a convict had no right to sue for any injury to his
property or for recovery of a debt. This disability had been imposed under the Forfeiture Act, 1870.
But now the position has changed. The Criminal Justice Act, 1948 has removed this liability of the
convicts. Now in England, convict can also bring an action for personal injury, such as assault,
battery, defamation or injury to his property even during his imprisonment.
Indian Law
In India until 1921 certain offences entailed forfeiture of the property of the offender (IPC section
121). But, forfeiture has now been abolished except in three cases (sections 126, 127 and 169 IPC).
Thus, in India convict can sue both for a wrong to his person or to his property except where his
property has been forfeited under sections 126, 127 and 169 IPC.
In D.B. Patnaik v. A.P. AIR 1974 SC 2092 the Supreme Court of India has held ‘convicts are not, by
mere reason of the conviction, denuded of all fundamental rights which they otherwise possess (also
other constitutional rights i.e. right to acquire, hold and dispose of property).
So a convict can sue for enforcement of his right against the defendant who causes injury to his person
or property. Thus he can sue for battery or assault if prison authorizes use excessive force for
enforcing discipline in prison or apply force for improper purpose.
In Smt. Kewal Pati v. State of U.P. (1995) a convict was attacked by another convict in Jail and was
killed due the failure of the Jail Authorities to protect him. The widow of the deceased convict filed
a petition under Article 32 of the constitution for damages. The court awarded Rs. 100000/- as
compensation to the widow for violation of her fundamental right to life under Article 21.
2. Alien Enemy

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An alien enemy is a person of enemy nationality or a person residing or carrying on business in enemy
territory, whatever may be his nationality.
At Common Law i.e. in England, an alien enemy had no right to sue in his own capacity. But if he
was residing in the British Dominions he could sue with the express or tacit license/permission of the
Crown (the King or Queen).
In India, the above rule applies and under section 83 of the Civil Procedure Code – an enemy can sue
in India for tort with the prior permission of the Central Government 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.
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 license on that behalf granted by the Central Government shall
for this purpose deemed to be alien enemy residing in a foreign country.
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. Hence a firm in India, some of whose partners are living in a hostile country cannot
sue in Indian courts.
3.Husband and wife (married women)
In a primitive society, particularly in the joint family system, a married woman was regarded as a tool
in the kitchen room and toy in the hands of her husband and collaterals. But in the present society,
the legal status of woman has been accelerated through various legislations conferring the equal rights
and status on par with men and also certain privileges and immunities in addition.
Prior to the passing of the Law Reforms (Husband & Wife) Act, 1962 the position of married women
under the common law of England was not satisfactory. A married woman could not sue for any tort
committed by a third person unless her husband joined with her as plaintiff and could not be sued
unless her husband was made a defendant alongwith her. She had no right to sue her husband and the
husband had no right to sue her for any tort committed by her.
Prior to 1882, the position of the women in society was very low and the husband was considered to
be the owner of her body and property and it was necessary to join him as a party in all proceeding
before the court. She had no independent status of her own. These shortcomings of the Common Law
were gradually removed by legislation. The Married Women’s Property Act, 1882 has abolished this
rule of procedure and she can now sue and can also be sued in cases of a tort committed by any person
against her or by her against other.
Suits by husband and wife against each other:
According to the common law neither a married woman could sue her husband not the husband could
sue his wife for any tort committed by one against the other. This was based on the concept that
husband and wife are the same person in the eye of law.

The Married Women’s Property Act, 1882

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While retaining this rule, accepted an exception to the rule that a wife could sue her husband for the
protection of her personal property, as if she was an unmarried woman. But this rule did not apply to
the husband and he could not sue her wife. [But she could not sue her husband for personal wrong
i.e. assault/battery]. It was humorously but rightly said in that period that a husband can break the
wrist of his wife but not her wrist watch].
The Law Reforms (Husband and Wife) Act, 1962 has abolished the above rule and has given equal
status to both wife and husband to sue each other as if they were not married to each other.
But under section 2 of the Act the Court had been given discretion to stay the proceedings to prevent
them from using it as a forum for trivial domestic disputes without any chance of substantial benefit
to either of them.
In Indian Law
In India, the marital status of Hindus, Muslims, Buddhist, Sikhs, Jain is regulated by their personal
laws and not by the Common law. Marriage under personal laws does not affect the capacities of
parties for suing or for being sued nor does it confer any protection to any of the spouses for any
tortuous act committed by one against the other.
Even if there was any anomaly in the Indian law similar in any manner to those in Common Law, it
could not survive after the coming into force of the constitution of India on 26th Jan, 1950. Article 14
of the Constitution guarantees equality before the law and equal protection of laws to every person.
It is a guarantee against arbitrariness and unreasonableness.
Article 15 prohibits discrimination on the ground of sex. From this, it is clear that marriage does not
affect the rights and liabilities of wife and husband to sue and to be sued in respect of any tort
committed by either of them against the other. The wife can sue the husband for any tort committed
by him against her and the husband can sue the wife for any tort committed by her against him.
The wife can sue another person for tort committed by him against her without joining her husband
and similarly the husband can sue another person for tort committed against him without joining the
wife. So in India, there is no such discrimination and the actions between the spouses are
maintainable.
4.Corporation
A corporation is a legal person. As a legal person it enjoys certain rights and duties. It can sue and
can be sued. A corporation is independent and separate from its members. A corporation may sue and
be sued in its own name. It can sue for any defamatory statement or other torts affecting its property
or business in its own name. But it cannot sue for personal injuries. Such as, assault, battery or false
imprisonment, etc. because such acts cannot be committed against a corporation.
Capacity of corporation to sue:
Corporation, being a fictitious/legal person acts through its servants. It can sue others through its
officials provided the following conditions are satisfied:
1.The tort complained of must be of such kind which is not impossible to be committed against the
corporation, i.e. a corporation cannot sue for assault, battery, false imprisonment, etc.
2. The tort must refer to its business affairs or reputation and not to the personality of its servants or
employees.

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Mayor of Manchester v. Williams (1891) – In this case, defendant made a statement alleging the
corrupt practices of the employees of the plaintiff corporation. Held that the defendants were not
liable on the ground that it refers to its employees and would not affect its business or reputation.
In modern times, the liability of a corporation has been considerably widened. A corporation being
an artificial person acts through its agent or servants. If an agent r servant of a corporation commits
a tort during the course of his employment, a suit for damages can be instituted against it on the basis
of principal and agent relationship.
Capacity of corporation to be sued:
A corporation can be sued through its officials provided the following conditions are satisfied
1.The tort is committed by its servant with the scope of employment or authorized or ratified byit.
2. The act committed by its servant must be within the power conferred on him by the corporation
(i.e. intra vires powers).
The torts committed by the servants of the corporation are categorized under the following 2 heads:
1.Intra vires torts
Corporation is liable for intra-vires torts. If the tort is committed by its servant within the powers
conferred on him, it is called intra-vires tort.
2.Ultra vires Torts
Corporation is not liable for ultra vires torts. If a tort is committed by its servant outside the powers
conferred on him it is called ultra vires tort.
In Poulton v. London South Western Rly co. (1867) the station master of the defendant railway
company arrested the plaintiff because he had refused to pay the freight for a horse that had been
carried on by the defendants railway. The railway company had authority under the Act of Parliament
to arrest a person who did not pay his fare but had no power to arrest a person for non-payment for
the carriage of goods. The plaintiff filed a suit against the defendant railway company for damages.
It was held that the railway company was not liable because when the company had no power itself
to arrest for such non-payment, it could not give the station master such a power. So the act of the
station master was beyond the course of his employment.
5. Unborn Child
Prior to the passing of the Congenital Disabilities/Civil Liability Act, 1976, the position of law in this
respect was uncertain and was based on judicial decisions. The question whether an unborn child
could claim damages for the injury caused to him by the defendant while he was in the womb of his
mother.
The question for the first time came before the court in a case of Walker v. Great Northern Railway
of Northern Ireland, (1890) (Ireland). In this case a pregnant women was travelling in the defendants
train. As a result of an accident she was injured and gave birth to a deformed child. An action for
damages was brought in the court on behalf of unborn child against the defendant of railway company.
It was held that an unborn child was not entitled to sue for damages.
The plaintiff was supported on 2 grounds. Firstly, the unborn child is not a person in the eye of law,
and secondly, even if it is accepted that he is a legal person the wrongdoer had no knowledge of his

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existence. But Salmond did not agree with this view and supported the view that an unborn child was
entitled to damages.
Present English Law
By passing the Congenital Disabilities (Civil Liability) Act, 1976 the British Parliament has removed
the uncertainty in law. But under this act an action on behalf of an unborn child can be brought when
the child is born alive and is deformed. But in spite of this damages will not be given for expectancy
of life unless he survives at least 48 hours after his birth. It means that if the child dies just after his
birth, the liability of the wrongdoer would be limited to the extent of paying the funeral and medical
expenses.
Generally, action can be brought on behalf of a child if the mother of the child is herself responsible
for child’s deformity. But Section 2 of the Act provides that if a women drives a motor with the
knowledge that she is pregnant she would be responsible for the safety of her unborn child in the
same way as the law expects from others.
Thus, if a child is born deformed as a result of mother’s negligence then she would be liable. But in
this case the pre-condition is that the child must be born alive and must have remained alive at least
for 48 hours, otherwise no damages will be given for the expectancy of life (Section 4).
In India, there is no such law governing the liability for pre-natal injury to unborn child. It is therefore,
suggested that the legislature should pass an enactment on the lines of English Law and make the
position clear. In the absence of any enactment, the Indian Courts should take guidance from the
decisions of the English courts.
The Hindu law recognizes right of an unborn child and in case of partition of property he is allocated
a share in it along with other heirs. In case the child is not born alive, it is only in that event that his
share may be equally distributed among the other heirs. A partition made without allocating a share
to a child in mother’s womb will be wholly unlawful and liable to be set aside. Similar provisions
exist in law relating to property and the law of trusts etc. That apart, section 316 of the IPC makes
causing death of a child in mother’s womb a punishable offence. Again causing illegal abortion is an
offence under section 312 and 313 of IPC.
The Supreme Court of India in Union Carbide Corporation v. Union of India AIR 1992 SC 248
referred to the English Congenital Disabilities (Civil Liability) Act, 1976 and held that those children
who were en ventre sa mere (in the mother’s womb) at the time of Bhopal Gas Tragedy, if they are
born with any deformity or abnormity due to the ill effect of poisonous MIC gas, will be entitled for
compensation from the defendant Union Carbide Corporation.
In S. Syuddin v. Court of Welfare Commissioner, (1996) 3 SCALE 28 (SC): a lady pregnant at the
time of Bhopal gas tragedy (i.e. midnight of 2-3 December 1984) gave birth to a girl child who died
after 4 months due to ill-effect of the poisonous MIC gas, a fact which was medically proved. The
father of the child recovered Rs. 1.5 lakh as compensation for the untimely death of the child.
6.Insolven Person
The general rule is that an insolvent cannot bring an action for any wrong committed to his property
because according to English law when a person is declared an insolvent all his property is vested in
the trustee and he no longer remains the owner of his property. It is only the trustee who can bring

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Dr. Bharat G. Kaurani Asso. Professor N. B. Thakur Law College, Nasik.

action for any injury caused to the insolvent’s property. In India, the English law is followed in this
respect. [Official Receiver/Assignee is appointed by the court for the benefit of his creditors].
But if any bodily injury is caused to an insolvent such as, assault, defamation, etc he shall have right
to bring action against the wrongdoer and official assignee or receiver cannot interfere. But where an
injury is caused to both, to the person and property of the insolvent, the right of action will be split,
as regard to his person the insolvent can sue and as regards his property the action can be brought by
the official assignee. In such a case both the insolvent and official assignee can bring a suit jointly
also.
7. Foreign Sovereigns
No foreign state can file suit in Indian Courts for torts, unless such a state is recognized by India.
Such states can only do so with the prior permission of the Central Government (Section 86 CPC).
Who cannot be sued:
A suit for tort cannot be brought against the following persons:
1.Foreign Sovereign: (Ambassadors, etc):
According to English law no suit can be filed against an independent foreign sovereign or a sovereign
state in municipal courts, unless they submit to the jurisdiction of the courts. The privileges available
to the sovereign of other states are called legal immunities.
So foreign sovereigns, Ambassadors, etc, are not subject to the jurisdiction of Municipal Courts in
England, unless they submit themselves to the jurisdiction of the court. This principle of immunity
was developed in early 19th century. This sovereign immunity is not confined to his person, but
extended to his property also. This immunity is accorded on the principle of international policy.
These persons enjoy certain privileges. They are diplomatic personnel on behalf of their states
representing the country in another state. So even if a tort is committed by them in their official
capacity they are exempted from liability. They are exempted from local jurisdiction. But they may
voluntarily submit to the jurisdiction of court of that state.
Mighell v. Sultan of Jahore (1894) in this case the defendant, Sultan of Jahore, during his stay in
England promised to marry the plaintiff. But he did not fulfill his promise. The plaintiff sued the
defendant for the breach of the promise. The defendant contended that the court had no jurisdiction
over him as he did not submit to its jurisdiction. The Court dismissed the suit in favour of the
defendant.
This immunity is extended in India also. The provisions relating to such immunity are enshrined in
Sections 86 & 87 of CPC.
Section 86 of the Civil Procedure Code provides the lengthy procedure for obtaining the consent.
Practically, the Central Government has not given any such consent upto 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.
Ambassadors cannot be sued for torts either in the courts of England or in the Courts of India on
principles of international policy. The immunity extends also to the family of such minister or
ambassador. In India the provision of Section 86 of the Code of Civil Procedure apply in case of
Ambassador also. The remedy against an ambassador is to move one’s own Government to induce

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Dr. Bharat G. Kaurani Asso. Professor N. B. Thakur Law College, Nasik.

the ambassador and his staff, which they may think fit to satisfy the Government which complains.
[Here foreign sovereigns also means President, Prime Minister, King or Queen of foreign country].
2. Former Rulers of India Territory:
Section 87-B of the CPC 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 can sue and can be sued liker ordinary citizens
in India for tortuous acts.
3.Minor:
Generally, minority is no defence to action in tort. a minor may sue for wrongful acts in the same way
as an adult. But the condition is that a minor can sue only through by his next friend. Thus, minor can
be held liable for assault, false imprisonment, libel and slander, trespass and nuisance.
In law of torts age is immaterial and a boy aged 7 years can be made liable for trespass like an adult.
But in cases where liability is to be imposed on the basis of certain mental element, minority of the
person will be a good defence. For example, in case of fraud the wrongdoer can take the defence of
his minority and it is presumed that necessary element to commit the tort is not present in him.
Liability of parents
A father is not liable for the tort of his son even though he is a minor and living with him. But in the
following circumstances a father will be liable for tortuous acts of his son:
i.Where the son is acting as servants of his father. In such case the liability of father is similar to the
liability of an employer. For example, if the son is driving a car for the purpose of the father, the son
will also be liable of negligence,
ii..The father will be liable for his own negligence if due to his negligence his son gets an opportunity
to do a wrongful act or permits him to doo such acts. For example, if the father negligently leaves his
gun in the hands of his son without giving him proper guidance for handling it he will be liable for
the tort of his son.
The parent 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.
Bebee v. Sales (1916):Parents must be very careful in handling the dangerous things, and especially
take the care that the child 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.
Generally, speaking infancy or young age is no defence for any wrong in law of torts. At the same
time it must be remembered that extreme youth may afford a defence where intention, malice,
knowledge or some other condition of the mind of the wrongdoer form an essential ingredients of the
wrong.

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In Mullin v. Richards, (1998) the claimant and the defendant, both were 15 years old school girls.
They were fighting with plastic rulers using them as swords, when one of the rulers broke and a
fragment of plastic entered the claimant’s eye. Held, the defendant was not liable being a minor. The
standard by which the conduct of minor tortfeasor is to measured is not that of a reasonable adult but
that expected of a minor of that age, his intelligence, understanding, foresight, experience, etc.
As per the Minor’s Contracts Act, 1987 in England, the court has a discretion to order the transfer
back of money or property acquired under a contract entered into fraudulently, if the money or
property is still in possession of the minor, but if has been spent or changed its form, there is no
remedy available to the aggrieved party.
4.Lunatics
A lunatic is not competent to contract according to Section 10 of the Indian Contract Act, 1872.
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.
Lunacy, like infancy is not a good defence in an action for tort except in case where intention,
knowledge, malice, or any other mental condition is essential to create a tortuous liability, and the
lunatic may be found incapable of having such mental condition or intention or knowledge sufficient
to impose liability upon him. So lunacy is no defence in the law of torts and a lunatic is liable for his
wrong. But he would not be liable for those torts in which some mental condition forms an essential
ingredient.
Insanity is not a good defence in case of strict liability. Interference with the property and body of a
person knowingly, for example, trespass, assault, etc. insanity is not a good defence. But it is proved
that the insanity is of such a serious nature that the defendant was unable to know the nature of his
act, he would not be liable in tort because the act will not be voluntary act which is a necessary
element in tort.
In certain tortuous acts, such as deceit, defamation, malicious prosecution, etc which acts require
malice and ill motive the plaintiff has to prove the lunatic persons malice and ill motive successfully,
which is very had to prove in case of insane persons. So in such cases he cannot be sued.
5. Trade Union
In England according to the Trade Dispute Act, 1906 no suit can be filed against the trade union or
its members or employees for torts committed by the trade union. In 1927 the Act was amended and
it was provided that a trade union can be held liable for strike. As a result of this amendment, now
the position is that a trade union can be sued in its registered name and it can also sue in its registered
name.
A trade union may be registered under the Indian Trade Union Act, 1926, or it may not be so
registered. If it is registered under the Act, it may be sued in its registered name and if it is not so
registered, any one or more of its member may be sued on behalf of all members of the Union.
A registered trade union and its officers and members are exempted from liability for certain torts. It
has thus been provided by section 18 of the Indian Trade Unions Act that no suit, shall lie against
them or any of them in respect of any act done in contemplation or furtherance of a trade dispute to
which a member of the trade union was 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

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employment of some other person or with the right of some other person to dispose of his capital or
labour as he wills.
In Rohtas Industries Ltd. v. Staff Union, (1976) 2 SCC 82, a suit was filed against the employees of
Rohtas Industries for the recovery of compensation for loss of business profits due to strike by the
workmen. Dismissing the claim, the Apex Court observed that there is no provision under the
Industrial Disputes Act, 1947, which contemplates a claim of money by an employer from the
workmen.
6. State and its Subordinates [Sovereign Immunity]:
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”.
Position in England
Earlier, the King or the State enjoyed immunity from tortuous liability i.e. state was not liable for the
torts committed by its servant. This immunity from tortuous liability was enjoyed by the state under
the doctrine “The King can do no wrong”.
This is a well known principle in English Law. And the immunity enjoyed by the state is called
“Sovereign Immunity”. But with the increase in functions of the state and expansion of the
Government machinery, such immunity is not possible in the interests of justice. Hence, the British
Parliament enacted “The Crown Proceedings Act, 1947” which provides for Government liability i.e.
it has changed the concept of English law and the present law is that, the Crown is liable for the
wrongful acts of his servants and can be sued in vicarious liability as any other employer subject to
certain conditions.
Position in India
Article 361 of the Constitution of India provides that the President, Governors and Rajpramukhs of
States shall not be answerable to any court (i) for the exercise and performance of the power and
duties of their office or (ii) for any act done or purporting to be done by them in the exercise and
performance of those powers and duties.
But a distinction is made between acts done by them in their public and personal capacity –
i. for acts done or purported to be done by them in their public capacity their immunity is absolute,
and no action lies against them in a court of law.
ii. But for acts done by them in their personal capacity i.e. as individuals, there is no such immunity
but a suit would lie only if 2 months notice in writing has been delivered to them, stating the nature
of the proceeding, cause of action, etc.
Present legal position in India is as follows:
(i)The Government is liable for the torts committed by its servants in their official capacities and in
the course of transactions which any private person can engage himself.
(ii)No action will lie against the Government for acts done by its servants in exercise of its sovereign
powers like making a war or treaty, etc.
(iii)The Government is liable to its citizens for injurious acts done by it or its servants by doing some
act under the municipal law example unlawful acquisition of property.

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(iv) A suit can lie against the Government for the recovery of property or money wrongfully obtained
or detained by it or by its servants.
There is no enactment like the Crown Proceedings Act prescribing tortuous liability of the State.
However, Article 300 of Indian Constitution lays down the provisions relating to the liability of State
or Government for the torts committed by its servants. In India, the State or the Government is
vicariously liable like an individual or an employer in respect of the torts committed by its servants.
However, the existing position in India is not satisfactory.
Immunity from tortuous liability
Under the provisions of the Crown Proceedings Act, 1947 in England and under the provisions of
Article 300 of the Constitution in India, State or Government is vicariously liable for the torts
committed by its servants.
However, the State or the Government, is not liable in certain cases. In other words, the State or the
Government is exempted from tortuous liability or enjoys immunity for the torts committed by its
servants provided the following conditions are satisfied:
1.The tort is committed by its servant.
2. That the tort is committed in discharge of a statutory function i.e. in discharge of obligations
imposed on him by law.
3. The discharge of such statutory function must be in delegation of sovereign power.
Sovereign power and non-sovereign power
If the tort is committed by the servant in discharge of his statutory function, which is in delegation of
sovereign power, the state is not liable. Now the question is, what is sovereign power? And what is
non-sovereign power?
It is very difficult for the court to adopt any test to find out whether a particular function is sovereign
or non-sovereign functions which are exclusively maintained by the state are regarded as sovereign
functions, while the functions which can be delegated to any private person or body of individuals
are non-sovereign functions.
For instance, maintenance of Army, Navy, Law & Order, Administration of justice are to be carried
alone by the state, so they are sovereign functions. The other functions like Trade, Commerce and
Welfare activities, etc may be carried on through private persons as they are non-sovereign .
7. Corporation
Corporation is not liable for ultra vires torts. If a tort is committed by its servant outside the powers
conferred on him it is called ultra vires tort and the corporation cannot be sued.
8.Married women
Prior to 1882 A married woman could not sue for any tort committed by a third person unless her
husband joined with her as plaintiff and could not be sued unless her husband was made a defendant
along with her. She has no right for sue her husband and the husband had no right to sue her for any
tort committed by her.
Prior to 1882, the position of the women in society was very law and the husband was considered to
be the owner of her body and property and it was necessary to join him as a party in all proceedings
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before the court. She had no independent status of her own. These shortcomings of the common law
were gradually removed by legislation. The Married Women’s Property Act, 1882 has abolished this
rule of procedure and she can now sue and can also be sued in cases of a tort committed by any person
against her or by her against other.
9. Judicial Officers:
Judicial officers are conferred immunity from harm caused to anyone in course of discharging their
official functions and no suit shall lie against them for such acts. The immunity also extends to courts
and judicial officers of Army, Navy and Air-force and no action shall lie against them for acts done
in good faith in discharge of their official duties.
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Topic 5 Discharge of Torts [Extinction of Liability in Tort]
In certain circumstances the right of action in tort is extinguished. In such cases the tort is committed
but no action can be maintained and if a suit is brought it shall be dismissed. In such cases the
wrongdoer is discharged from the liability of tort. Discharge of torts differs from justification of tort.
Justification are exceptions, under certain circumstances the wrong is justified in doing it i.e. rule of
non-liability is provided. Whereas, in discharge of tort, the circumstances are such that the liability
exists but remedy does not exists.
In law of torts, the person whose legal right has been violated and who has suffered injury or loss due
to wrongful act of the defendant has the right to sue the latter for damages. But he may choose to
waive off his legal right and discharge the defendant from his liability for the wrongful act. Thus, the
rights of action for a legal wrong may be extinguished or discharged in several ways, some of them
by act of the parties while others by operation of law. Extinction of liability by act of parties may take
place by waiver, accord or satisfaction, release, acquiescence whereas the liability comes to end or
discharge by operation of law in case of judgment, operation of statute of limitation or due to death
of a party. The circumstances in which a person is discharged from the liability of tort committed by
him are following:
(a) Death of the parties
It is the general principle of the law that the personality of a human being exists on his birth, and
ceases on his death. Dead man is no longer person in the eye of the law. The common law maxim in
England is ‘Actio personolis moritur cum persona’, which means “personal action dies with the
person”. With certain exception in the case of torts affecting interest in chattel and in land i.e.
property.
Under the Common law the death of the wronged i.e. plaintiff or of the wrongdoer i.e. defendant
would put an end to the cause of action. Therefore, a suit could not be instituted by or against his
representation. However, in some of the torts, the action can be taken by the dependents of the
deceased. In some torts, the action dies with the person. In case of death of wronged person, the legal
heir can claim damages from the defendant for proprietary wrongs i.e. tort against property i.e.
Trespass, nuisance, fraud, waste, etc but for personal tort defendant cannot be sued. Even in case of
death of wrong doer the legal heir of deceased are not liable for personal tort of wrongdoer.
Personal torts are those torts, which are affecting mind and body of the person i.e. assaults, battery,
false imprisonment, etc. In case of personal tort legal heir of wrong doer are not liable but in case of

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proprietary torts legal heirs are liable. So in short a tort is discharge with the death of either party if
the tort was personal, but if the tort is proprietary than the tort is not discharged.
But there are exceptions example, Fatal Accident Act, 1976. The Law Reforms Act, 1934. The maxim
has been modified by statutes. Thus the Fatal Accidents Act provides for action by the representative
of the deceased for damages for the benefit of the wife, husband, parent and child of the deceased
against the wrongdoer notwithstanding the death of the injured except defamation, assault or other
personal injuries.
Indian Law
The maxim action personalis moritur cum persona i.e. the right of person dies with the person does
not fully apply in India. Like in England, a number of exception have been admitted to this rule and
as a result of which the rules has almost been abolished.
The Indian Acts which have affected this rule are the following:
Fatal Accidents Act, 1955 – this Act has been enacted on the lines of the English Fatal Accidents’
Act. The provisions of both the Acts are similar. (English Act).
Workmen’s Compensation Act, 1923 – This Act gives right to the dependents of a worker who dies
during the course of service to bring an action for damages.
(b) Waiver (to give up) (waiver by election):
If a person has several remedies for the same wrong but choses only one of them, the other remedies
are taken to have been waived. So if out of the several civil remedies available for a wrong, the injured
person elects to pursue only one of them, he shall be precluded from persuing others afterwards, e.g.
if he elects to base his action on the ground of breach of contract, he cannot after words sue for it as
a tort, for he will be deemed to have waived the rest of the remedies.
The waiver of remedies may be express or implied. This is based on the rule that a person cannot both
approbate and reprobate at the same time.
The phrase, “waive the tort” does not mean that the tort itself is waived, it is only the right to recover
damages for the tort committed that is waived. But he can alternatively claim all the remedies in the
same suit, e.g. he can say that if he be held to be not entitled to damage on the ground of breach of
contract, then he may be awarded damages in tort.
Similarly, if a person is compelled to purchase an article by fraud then he can return the article and
take his money back, but he cannot do both keep the article as well as the money. But there are certain
torts where the doctrine of waiver cannot be applied, such as defamation and assault.
The principle underlying the doctrine is two-fold. The first is to avoid multiplicity of proceedings,
and the second is that if a person reasonably gives the impression that he has waived a particular
remedy, it would not be equitable to allow him to go back to that alternative remedy.
(c) Accord and Satisfaction
Tortuous liability can be discharged by means of accord and satisfaction. If the plaintiff accepts or
agrees to accept valuable consideration for the injury caused to his legal rights by the tortfeasor, it
extinguishes the tortuous liability of the wrongdoer.
An accord – mutual agreement to pay something as compensation.

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Satisfaction – actual payment of the sum agreed.

Accord means an agreement, whereby a person agrees to accept some valuable consideration in lieu
(instead) of right of action that he has against the other. Satisfaction means actual payment of amount
of consideration. So agreed to, when there is an agreement and it is satisfied it discharges the tort.
So tortuous liability can be discharged by accord and satisfaction, i.e., it can be extinguished by an
agreement for valuable consideration between the injured party and the tort-feasor.
Example: If a person is injured in a train accident, he may agree to accept a specific sum of money as
compensation and agree further not to sue the Railway authorities for injuries suffered by him.
(d) Release
If the injured party wishes he can release the tort-feasor from liability to pay damages. This is known
as right to release . A release means the surrender of a right of action against the wrongdoer i.e. the
wronged or aggrieved person surrendering the entire claim or right of action, which he has against
the wrongdoer. This release should be voluntary and should not be obtained by threat, compulsion or
force.
So any surrender of a right of action may be called release. A release under English law, if without
consideration, is not valid unless it is embodied in a formal document and signed, sealed and
delivered.
In Indian law, however, according to Section 63 of the Indian Contract Act, consideration is not
essential to a release and hence a valid release can be made even without consideration although it is
not embodied in formal document.
In English law a release without consideration will be valid only if it is effected by a deed and not
otherwise. Where however a man has been induced to execute a release by fraud, the release is not
binding. Release closely resembles accord and satisfaction with the difference that a release is usually
embodied in a formal document.
(e) Acquiescence (Knowingly delay in filing the suit)
Where a person having knowledge about the existence of his right to bring an action against the
defendant for tort neglects to do so for a length of time, it may be inferred that he has acquiesced his
right. If a person deliberately does not bring an action against the wrongdoer for a long time then it
is presumed that he has waived his right to take action. Only delay does not prove that the person has
waived his right, it must be proved that he has done it by acquiescence.
Whether in a particular case the plaintiff has waived his right to take an action against the wrongdoer
by acquiescence will be decided on the facts and circumstances of each case. Sometimes there may
be a special reason for delay. In such a case the right to take action does not come to an end merely
by acquiescence.
If an injured person, with full knowledge of his rights to bring an action for tort, neglects to do so for
a long time, it may fairly be inferred that he has waived or abandoned the right, and the tort is
discharged. The law helps the active and the diligent and not those who sleep or slumber over their
rights.

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Today, the statutes of limitation categorically lay down the period after which the legal remedy of
recovering damages for various torts would become time-barred. [see under the heading, “Limitation”
–below].
(f) Limitation
The Limitation Act, 1963 prescribes the period within which an action may be filed. If the suit is not
filed within the time prescribed; it becomes time barred. The Act prescribes different period of
limitation for different type of cases. For example, it prescribes one year for compensation for libel
& slander, three years for trespass on immovable property, three years for infringing copy right, one
year for compensation for false imprisonment and malicious prosecution.
The law prescribes time limit within which an action must be brought for the wrong and if this
prescribed period is over, expired, the right of action is barred and remedy ceased to operate. Law
helps to those only that is diligent/active about their right. Delay defeat equity. Law will not help to
those who were sleeping over their right for pretty long time.
So action for tort must be brought within the prescribed statutory period, otherwise the right to sue is
barred. In India the Indian Limitation Act lays down the respective period within which to sue for
different torts.
(g) Judgment recovered:
If in a case the court has given a decision then no action can be brought for the same cause of action
again. The injured party cannot bring an action against the wrongdoer twice on the same cause of
action. Section 11 of the Indian Civil Procedure Code provides that if a suit has been brought on the
basis of a cause of action and the decision has been given then no action can be brought again on the
same cause of action. This is known as the doctrine of res-judicata.
If the matter is decided conclusively and finally by the competent court, then for the same cause of
action, between the same parties the matter cannot be re-agitated (complained). In short, if a plaintiff
suffers two injuries, a broken arm and a broken leg out of one single tort (assault or battery) he must
claim damages in on single suit for both injuries and if has only sued for broken arm and the judgment
has been given, he cannot file a new suit for his broken leg, because the remedy has stopped to operate,
because the tort is discharge. This principle is based on the maxim of Res judicata, which is also
incorporated under section 11 of CPC.
Exceptions
The above rule admits of the following exceptions
(i) where two or more distinct rights are violated, a fresh suit can be filed for violation of each right.
Bruden v. Humphrey, (1884) - The plaintiff, a cab-driver, in an action (i.e a suit) had already
recovered compensation for damages done to his cab by a collision with the defendants van. He brings
another action in respect of personal injuries suffered by him consequences of the same accident. The
defendant objects to the second suit brought on the same cause of action. Here, two distinct rights are
violated, viz., damage to property and damage to person. The cab-driver is, therefore, entitled to bring
the second action for his personal injuries, for they were caused by the violation of a different right.
(ii) secondly, in cases in which damages is not of the essence of the action (as in trespass), a fresh
cause of action arises every time the tort is committed.

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(iii) Thirdly, in cases in which damage is of the essence of the action (as for instance in nuisance), a
fresh cause of action arises as often as fresh damage accrues. In cases of continuing nuisances,
successive actions may, from time to time, be brought in respect of the continuance.
(iv) Lastly, where the injury is of a continuing nature, the bringing of an action and the recovery of
damages for the reparation for the original wrong do not prevent the injured party from bringing a
fresh action for the continuance of the injury.
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Topic 6 Vicarious Liability
Generally, a person becomes liable for a tort committed by him. But there are certain circumstances
in which one person becomes liable for the tort committed by another. For instance if A the driver of
a Lorry commits an accident for which B, the owner is held liable, the liability of B is vicarious
liability.
Meaning and Definition
According to Webster’s Dictionary, the term ‘vicar’ means the person who performs the functions of
another, a substitute. Vicarious liability means liability which is incurred for or instead of another. In
order that the liability of A for the act done by B can arise, it is necessary that there should be certain
kind of relationship between A and B, and the wrongful act should be, in a certain way, connected
with that relationship.
The common examples of such a liability are:
Liability of the principal for the tort of his agent;
Liability of partners of each other’s tort;
Liability of the master for the tort of his servant.
When an agent commits a tort in the course of performance of his duty as an agent, the liability of the
principal arises for such a wrongful act. The agent is liable because he has done the wrongful act. The
principal is liable vicariously because of the principal-agent relationship between the two. Both can
be made liable for the same wrongful act. They are considered to be joint tort feasors and their liability
in tort is joint and several. In such a case, the plaintiff has a choice either to sue the principal, or the
agent, or both of them.
Similarly, when the wrongful act is done by one partner in the ordinary course of the business of the
firm, all the other partners are vicariously liable for the same. All the partners of the firm, i.e. the
guilty partner and the others are considered to be joint tort feasors. Their liability is also joint and
several. The same rule applies in the case of master-servant relationship. The master is vicariously
liable for the wrongful act done by his servant in the course of employment. The liability of the
master, of course, is in addition to that of the servant.
Underlying principles
The doctrine of vicarious liability emerges from the following principles:
(i).Qui facit per alium facit per se
The maxim means “he who does an act through another, is deemed in law to do it himself”. When a
person authorizes another to perform an act and a tort is committed while performing the act, the
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former is liable as if he had committed it himself. A master is liable for the torts of his servants on
the basis of this doctrine. A person who gets his work done through another is liable for all the
consequence from that act.
(ii) Respondeat Superior
It means “let the superior be liable”. If the liability is imposed on a superior/stronger man ignoring
the weaker man, the injured party would get appropriate remedy. The master is liable for all such acts
of his servants, which he does in the course of his employment, as the master is capable of meeting
the liability.
1.Principal and Agent
In case of principal and agent for the wrongful acts of agent, principal is liable, but the agent has to
commit such wrongs in course of his duties. There principal is liable because due to the relationship
between principal and agent. both can be made liable for the wrongful act i.e. they are jointly and
severally liable. So they are considered as joint tortfeasors. In such situation, the plaintiff has a choice
either to sue the principal or the agent or both of them.
This concept is based upon a principle ‘Qui facit per alium per se’, i.e. ‘he who acts through others is
deemed in law to do it himself’. The authority to do the act may be express or implied. The principal
generally does not expressly ask his agent to do the wrongful act, but when the agent acts in the
ordinary course of the performance of his duties as an agent, the principal becomes liable for the
same.
Lloyd v. Grace, Smith & Co. (1912)
Lloyd was 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 attended/approached her at her residence and advised her to sell the
two cottages and invest the money in a better way.
She was asked to sign two documents, which were supposed to be sale deeds. She having good faith
on the defendant company signed on the 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.
Judgement: 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, the
principal was liable for the fraud.
For the purpose of vicarious liability, even a friend, driving my car for me, may be my agent. In
Ormrod v. Croville Motor Service Ltd (1953) the owner of a car asked his friend to drive his car.
While the car was being driven by the friend, it collided with a bus. The owner of the car was held
liable. Lord Denning observed – “The law puts an special responsibility on the owner of a vehicle
who allows it go on road incharge of someone else, no matter whether it is his servant, his friend, or
anyone else. It is being used wholly or partly for the owner’s purpose, the owner is liable for any
negligence on the part of the driver.
The owner only escapes liability when he lends it or hires it to a third person to be used for purposes
in which the owner has no interest or concern.
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2. Firm and Partners

According to the Partnership Act of 1932, if any one of the partners commits any tort in the ordinary
course of the business of the firm, then all the other partners are vicarious liable for the wrong
committed by one partner to the third party . [his co-partners complete innocence is irrelevant].
The relationship as between partners is that of principal and agent. The rules of the law of agency
apply in case of their, liability also. For the tort committed by any partner in the ordinary course of
the business of the firm, all the other partners are liable therefore to the same extent as the guilty
partner. The liability of each partner is joint and several.
Hamlyn v. Houston and Co. (1903)
Acting on behalf of a firm, a partner bribed the clerk of the plaintiff (a competitor in the same line of
business), and induced him to communicate some secret information with regard to the plaintiffs
business, as a result of which the plaintiff sustained a loss. It was held that the firm was liable i.e.
both the partners of the firm were liable for this wrongful act (including breach of contract) committed
by only one of them.
3.Master and servant
In the case of master and servant also, if servant commits any wrongful act in course of his
employment, master is liable for that tort. The servant, of course, is also liable. This master servant
relation is also governed by the vicarious liability principle – the wrongful act of the servant is deemed
to be the act of the mast as well.
The doctrine of liability of the master for the act of his servant is based on the maxim respondeat
superior, which means let the principal be liable and it puts the master in the same position as if he
had done the act himself. It also derives the validity from the maxim qui facit per alium facit per se,
which means – he who does an act through another is deemed in law to do it himelf.
Since for the wrong done by the servant, the master can also be made liable vicariously, the plaintiff
has a choice to bring an action against either or both of them. This liability is joint and several as they
are considered to be joint- tort- feasors. the reason for the maxim respondeat superior (let the principal
be liable) seems to be 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. The liability arises even though
the servant acted against the express instructions, and for no benefit of his master.
For the liability of the master to arise, the following 2 essentials are to be present:
(a)The tort was committed by the servant
(b) The servant committed the tort in the course of his employment.
(a) The tort must be committed by his servant
Servant means when any person who works under the directions and control of the employer is called
as servant. The master not only instructs as to what is to be done, but also directs him as to how the
work is to be done. In this way servant is an agent of the master, so master is liable for the torts
committed by his servant. The master is liable for the servants act because whatever servant does, he
does for the benefit of master.
(b) The servant committed the tort in the course of his employment

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Such servant must commit the tort in course of his employment. Here, this point refers or denotes the
time of wrong committed by the servant. In other words, an act falls within the course of employment
when the master authorizes some to do.
For example in Century insurance Co. Ltd v. Northern Ireland Road Transport Board [1942]: In this
case, the driver of a lorry while transferring the petrol from lorry to an underground tank, struck a
match to light a cigarette and threw it on the floor. This resulted in a fire and an explosion causing
damage to B’s property. It was held that, the act of the driver being in course of employment, owner
of the driver was held liable. Because the driver has committed the act in course of his employment.
Even if the servant himself negligently delegates his authority or allows the same to be negligently
performed by somebody else, the master will be liable for such negligence of the servant. For
example, if the S.T. driver allows any other person to drive the S.T. Bus and if that another person
causes injury to others, the S.T. department is liable. The reason for the liability is the original
negligence of the driver in delegating his authority instead of performing the duty himself.
Servant and Independent contractor distinguished
As a general rule, master is liable for the tort of his servant but he is not liable for the tort of an
independent contractor. It, therefore, becomes essential to distinguish between the two. A servant is
an agent who is subject to the control and supervision of his employer regarding the manner in which
the work is to be done. An independent contractor is not subject to any such control. He undertakes
to do certain work and regarding the manner in which the work is to be done. He is his own master
and exercise his own discretion.
An independent contractor is one – who undertakes to produce a given result, but so that in the actual
execution of the work, he is not under the order or control of the person for whom he does it, and may
use his own discretion in things not specified beforehand.
For example: my car driver is my servant. If he negligently knocks down X, I will be liable for that.
But if I hire a taxi for going to railway station and the taxi driver negligently hits X I will not be liable
towards X because the driver is not my servant but only an independent contractor. The taxi driver
alone will be liable for that.
4. Employer and Independent Contractor
An employer is liable for the tort committed by his servant and is not liable for the tort committed by
an independent contractor. The reason is the employer exercise control over the work done by his
servant, and does not have any control over the independent contractor who exercises discretionary
power in performing the work entrusted to him.
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. Example if a owner of a vehicle sends it
to a garage for repairs and a mechanic in the garage commits an accident while testing the vehicle,
then the owner of the vehicle is not liable, but the owner of the garage who is an independent
contractor will be held responsible for the tort.
Example:
(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 A’s Servant.

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(b) 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 A’s
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.
General Rule:
It is a general rule that a person i.e. principal or 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.
The servant is under the control and supervision of the employer. The independent contractor is not
under the control and supervision of the employer. He acts independently. Employer-employee
relationship exists between the Employer i.e. master servant. Contractual relationship exists between
the Employer and Independent contractor.
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 recognizes certain circumstances under which a master is held responsible for his independent
contractor’s tortuous act, and he is held liable under the principle of “Respondeat Superior”.
Following are the exceptions in which the employer is held liable/responsible for the acts of
independent contractor:
1.Illegal or Unlawful Act:
Where an employer employs an independent contractor for undertaking an unlawful or illegal act,
and a tort is committed thereby, the employer is liable.
In Maganbhai v. Ishwarbhai AIR 1984 Guj 69- the trustee or the proprietors of a temple asked a
contractor to make arrangements of light and milk in the temple for a month. The trustee directed the
contractor to have supply of electricity from electric connection at tube well of an agriculturist without
informing the Electricity Board. The contractor while drawing service line from tube well use naked
iron wire which was somehow snapped after a fortnight and an agriculturist working in his field was
injured, the trustee was held liable on the ground that the act of the trustee to employ independent
contractor for diverting connection without informing the Electricity Board was an illegal act.
2 Personal fault of employer
Where an employer employs an incompetent contractor and a tort is committed due to such
incompetence, the employer is liable. similarly if the employer intervenes as to the mode of work, the
employer is liable for a tort as a consequence of such interference. Thus, where the employer sits by
the side of a taxi driver and instructs him to race it, he will be liable for accident which may be caused
by negligent driving.
3.Strict liability
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There are certain circumstances under which a person becomes liable in tort without any fault of his
own of any intention or negligence on his part. The liability is strict. This liability arises from breach
of duty. The concept of strict liability was created for the first time in the case of Rylands v. Fletcher
(1868) in this case, the defendant, who employed a competent engineer for construction of a reservoir
was held liable for the tort committed by the servants by the engineer.
4.Statutory Duty
Where provisions of a statute require a thing to be done by a person it must be done by him in the
prescribed manner. If the work is entrusted to an independent contractor and the contractor fails to do
it or fails to do it in the manner prescribed the person on whom the duty was imposed by statute
remains liable. For example – to provide safety provisions under the Factories Act, if the employer
appoints a contractor to provide safety provisions to his employees. If there is negligence on the part
of independent contractor and the employee is inured, the employer is still liable as it is a statutory
duty.
5.Implied Warranty
Where there is an implied warranty by employer, he is liable for the negligent act of an independent
contractor.
5.Company/ Corporation and its Directors
In modern times, the liability of a corporation has been considerably widened. A corporation being
an artificial person acts through its agents or servants. If an agent or servant of a corporation commits
a tort during the course of his employment; a suit for damages can be instituted against it on the basis
of principal and agent relationship.
So companies are liable for the torts committed by their servants in the course of their employment.
But the wrongful act complained of should be intra-vires and not ultra vires, i.e. it should be within
the power of the company and should be done for the company. Directors are personally responsible
for any tort which they themselves commit or directs others to commit, although it may be for the
benefit of the company.
In Tirveriamuthu Pillai v. Municipal Council AIR 1961 Mad 230 – the Municipal Council had
authority to arrest and kill stray dogs. The plaintiffs dog was killed by the employees of the Municipal
council in the course of discharge of his function of killing stray dogs.
The plaintiff filed a suit for damages against the Municipal Council for the loss of his dog. It was held
that the council was liable for the wrongful act of its servant because he had exercised his power
negligently. If they had been a little careful they would have distinguished between a tamed dog of
the plaintiff and stray dogs. The servants had no authority to exercise their power arbitrarily.
6. Guardian & Ward [Father and child]
Guardian are not personally liable for the tort committed by minors under their charge. But they can
sue for personal injuries to minors under their charge on their behalf. As a general rule, a father is
also not responsible for the torts of his children, even when they are underage and living in his house.
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 but there are circumstances in which the
parents becomes vicariously liable.

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Liability of parents: The parent (mother or father) and in the absence of the parents, the guardian is
responsible for minors 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.
Bebee v. Sales (1916) – 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 case, 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 plaintiff. the
court held that the father was responsible.
Vicarious liability of the state
Earlier, state was not liable for the torts committed by its servants. This immunity from tortuous
liability was enjoyed by the state under the doctrine “The King can do no wrong”. The immunity
enjoyed by the state is called “sovereign immunity”. Now the state is regarded as any other employer
and is vicariously liable for the torts committee by its servants subject to certain conditions.
Position in England
It was the rule of common law that king can do no wrong. Thus, the crown was immune from civil
and criminal liability, i.e. no action would lie against the Crown for the wrongful acts committed by
its servants in the course of their employment. The principle of liability of the master for the tort of
his servant did not apply to the Crown.
Therefore, if a tort was committed by King’s servant in the course of their employment, the injured
has no right to sue the king under the vicarious liability. “Respondeat Superior” principle was not
adopted in the case of the king. The courts in various decisions criticized this exemption given to the
king, opining that it was against the principles of equity, justice and good conscience. The individual
wrongdoer (servant) was only personally liable for his own tort, he could not take the defence of his
king or crown.
Welfare state started to interfere in every field so in these circumstances the rule of immunity became
highly incompatible with the demand of justice. To meet the demand and as a result of long discussion
in the courts and in the Parliament, at last, the British Parliament passed the Crown Proceedings
Act, 1947. According to this Act, now the Crown can also be sued for his servants tortuous Acts
committed in their course of employment under the principle of “Respondeat Superior”.
The law has been changed by the Crown Proceedings Act, 1947. Nothing in the Act authorities
proceedings in tort against the Crown in its private capacity (Section 40), or affects powers or
authorities exercisable by virtue of the prerogative of the crown or conferred upon the Crown by
statute [Section 11(1)].
Position in India
There is no enactment like the Crown Proceedings Act prescribing tortuous liability of the state.
However, Article 300 of the Indian Constitution lays down the provisions relating to the liability of
state or Government for the torts committed by its servants. In India, the state or the Government is
vicariously liable like an individual or an employer in respect of the torts committed by its servants.
[The Government of India may sue and be sued by the name of Union of India and the Government

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Dr. Bharat G. Kaurani Asso. Professor N. B. Thakur Law College, Nasik.

of a state may sue or be sued by the name of the state. However, the existing position in India is not
satisfactory under what circumstances they can be sued, it is not mentioned in the constitution.
Immunity from Tortuous liability
Under the provisions of the Crown Proceedings Act, 1947 in England and under the provisions of
Article 300 of the constitution in India, State or Government is vicariously liable for the torts
committed by its servants. However, the state or the Government, is not liable in certain cases. In
other words, the state or Government is exempted from tortuous liability or enjoys immunity for the
torts committed by its servants provided the following conditions are satisfied:
1.The tort is committed by its servant.
2.That the tort is committed in discharge of a statutory function i.e. in discharge of obligations
imposed on him by law.
3.The discharge of such statutory function must be in delegation of sovereign power.
Therefore, the state, to get immunity there must exist
(i)Sovereign power; and
(ii)Discharge of duty by servant in delegation of such sovereign power.
Now the question is, what is sovereign power and what is non-sovereign power:
Sovereign power and non-sovereign power
If the tort is committed by the servant in discharge of his statutory function, which is in delegation of
sovereign power, the state is not liable. Now, the question is, what is sovereign power? And what is
non-sovereign power?
To know the present position as regards the liability of the state for tortuous acts, we have to go back
to the pre-constitution days. For that, we refer Section 176 of the government of India Act, 1935. That
Act, like the present constitution, does not give the circumstance of the Governments liability but
recognizes the position prevailing before the passing of that Act. We find a similar position in Section
32 of the Government of India Act, 1915 and ultimately we refer to the Government of India Act,
1858 (Section 65).
Therefore, to know whether the state is liable for particular act or not, we have to find the position of
the East India Company prior to 1858.
This crucial question was answered for the very first time by Peacock C. J. in the case of –
An important case in this connection is Peninsular and Oriental Steam Navigation Company v.
Secretary of State for India (1861):
In that case, the plaintiff’s servant was travelling in a horse (2 horses) driven carriage and was passing
by the kidderpore Dockyared in Calcutta, which is the government property. Due to negligence on
the part of the defendants servants a heavy piece of iron, which they were carrying for the repair of a
steamer, fell and its clang frightened the horse. The horse rushed forward against the iron and was
injured.
The plaintiff filed a suit against the secretary of state for India in Council for the damage which eas
caused due to the negligence of the servants employed by the Government of India. The defendant,
co. pleaded immunity on the ground that they were engaged in ship repair process, managed by the
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East India Company to which Sovereign powers were accorded. But, Peacock C.J. did not agree with
the contention and held the defendant liable.
The Supreme Court of Calcutta through Peacock, C.J. coined the principle of “Sovereign –Non-
Sovereign Dichotomy” by drawing a line between sovereign power and non-sovereign power.
A distinction was drawn between the Sovereign and non sovereign functions of the East India
Company. It was held that, if the act was done in the exercise of sovereign functions, the East India
Company would not have been liable, but if the function was a non-sovereign one, i.e. which could
have been performed by a private individual without any delegation of power by the Government, the
company would have been liable.
Though, the Crown has accorded sovereign status to the East India Company, maintenance of the
dockyard and ship repairing was a commercial activity which could be carried by a private person,
and hence it is non-sovereign function and as such, the Government i.e. the defendant company was
held liable.
Tests: It is very difficult for the court to adopt any test to find out whether a particular function is
sovereign or non-sovereign functions which are exclusively maintained by the state are regarded as
sovereign functions, while the functions which can be delegated to any private person or body of
individuals are non-sovereign functions. For instance Maintenance of Army, Navy, Law and order,
Administration of Justice are to be carried alone by the state, so they are sovereign functions. The
other functions like Trade, commerce and welfare activities, etc may be carried on through private
persons as such they are non-sovereign functions.
Cases
Roop Ram v. The Punjab State AIR 1961 Pun. 336: In this case the principle of vicarious liability
was applied and the Punjab Government was held responsible for the wrongful act of the servant.
In this case, Rup Ram, a motor cyclist was seriously injured with the truck belonging to the Public
Works Department. The plaintiff Rup Ram brought an action for compensation against the State
alleging the injuries were caused by the rash and negligent driving of the truck by its driver.
It was pleaded on behalf of the State that the State was not liable for the tort committed by its servant,
because at the time of the incident the truck was carrying materials for the construction of a road,
which was in the exercise of sovereign power as the Government alone could do the same. The Punjab
High Court did not agree with this contention of the State and held that the State was liable. The
liability of the State was held to be exactly similar in extent and nature to that of an ordinary employer.
State of Rajasthan v. Vidyavati AIR 1962 SC 933: This is a famous case which is based upon the
doctrine of vicarious liability:
In this case the driver of a jeep, owned and maintained by the State of Rajasthan for collector’s official
use, drove it rashly and negligently, while bringing it back from the work shop after repairs and
knocked down a pedestrian and fatally injured him. The wife of pedestrian Smt. Vidyawati filed a
suit against the State of Rajasthan for compensation.
The Supreme Court ordered the Government of Rajasthan to pay compensation to the plaintiff for the
cause of death to her husband. The State was treated as an ordinary employer and it was held that the
State can be made liable for the tortuous act like any other employer.
Uncertainty as Indian Law
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Dr. Bharat G. Kaurani Asso. Professor N. B. Thakur Law College, Nasik.

Despite the decision of the Supreme Court in Vidyavathi’s case, the position as to Government’s
Liability in India was not clear, and satisfactory and the state was exempted from liability in the
following cases:
Kasturilal Ralia Ram Jain v. State of U.P. AIR 1965 SC 1039: Inspite of the decision of the
Supreme Court in Vidyavati’s case, the position is not very certain and satisfactory. The supreme
court in the case of Kasturilal v. State of U.P has again stated that if the act of the Government servant
was one which could be considered to be in delegation of sovereign powers, the state would be exempt
from liability, otherwise not.
In Kasturi Lal’s case, Ralia Ram, one of the partners of a firm of jwellers, Kasturi Lal Ralia Ram
Jain, at Amritsar happened to go to Meerut, reaching these on the midnight of 20th Sept. 1947 by
Frontier Mail, reaching there on the Meerut in order to sell gold and silver, etc in the Meerut market.
While he was passing through one of the markets with his belongings, he was taken into custody by
the three police constables on the suspicion of possessing stolen property and then he was taken to
the police station.
On search, it was found that he had been carrying 103 tolas of gold and 2 maunds of silver. He was
kept in police lock-up and his belongings were also kept in the custody of the police under the
provisions of the Criminal Procedure Code.
Next day, he was released on bail and sometime thereafter the silver was returned to him [i.e. he
proved the genuineness of silver and gold in the court]. The gold had been kept in the police Malkhana
under the charge of the then Head Constable Mohammad Amir. The Head Constable misappropriated
the gold and fled to Pakistan in October 1947. The plaintiff brought an action against the state of U.P.
claiming either the return of the gold or in the alternative, compensation amounting to over RS.
11000/- in lieu of thereof.
The state of U.P. was held to be not liable on the grounds that (i)the police officials were acting in
discharge of statutory powers and (ii) the power of the police official in keeping the property in the
police malkhana was a sovereign power.
Existing position in India and Role of judiciary
It is clear from the above that the existing position in India as to the tortuous liability of state is
uncertain and not satisfactory. Gajendra Gadker C.j., in Kasturilal case expressed dissatisfaction over
the lawlessness on the Government liability. However, the judiciary is intervening to remove this
uncertainty.
Rudal Shah v. State of Bihar AIR 1983 SC 1086
The petitioner in the instant case was acquitted on 3rd June 1968, but was detained in prison till 6th
Oct 1982 i.e. 14 years after acquittal. The petitioner filed the writ of Habeas Corpus in the Supreme
Court under Article 32. The Supreme Court through Y.V. Chandrachud C.J. severly condemned the
attitude of the state and ordered to release the plaintiff immediately and also to pay a compensation
of Rs. 35000/-.
Bhimsingh v. State of Jammu & Kashmir AIR 1986 SC 494: The Supreme court awarded a
compensation of Rs. 50000 against the State for the illegal detention of Bhimsingh who was an MLA.
Kasturilal by passed

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Dr. Bharat G. Kaurani Asso. Professor N. B. Thakur Law College, Nasik.

Although the decision of the supreme court in Kasturilal’s case still holds good for practical purposes
its force has been considerably reduced by a number of decisions of the supreme court. Without
expressly referring to Kasturi Lal or distinguishing or overruling this case, deviation from this
decision has been made. Under the circumstance in which the state would have been exempted from
liability if Kasturilal had been followed, the state has been held liable. The State has been held liable
in respect of loss or damage either to the property or to a person.
Loss to property
When the property is in possession of the state officials, there is deemed to be bailment of the
property, and the state as the bailee has been held bound to either return the property or pay
compensation for the same.
In Smt. Basava v. State of Mysore AIR 1977 SC 1749: Some ornaments and cash belonging to the
appellant had been stolen. Some of these articles were recovered by the police and kept in the police
custody under the orders of a magistrate. They were kept in a trunck (box) from which they were
found missing. It was held by the supreme court that state could not prove that the property in question
had been lost in spite of due care and caution taken by the state, or due to circumstances beyond its
control, and therefore, the appellant was entitled to receive Rs. 10000/-, which amount was equivalent
to the property lost.
Sovereign immunity is subject to Fundamental Rights
Death or injury to persons
In Peoples Union for Democratic Rights v. State of Bihar AIR 1987 SC 335 about 600 to 700 poor
peasants and landless persons had collected for a peaceful meeting. Without any previous warning by
the police or provocation on the part of those collected, the superintendent of police surrounded the
gathering with the help of police force and opened fire, as a result of which at least 21 persons,
including children died and many more were injured.
The Peoples Union of Democratic Rights (PUDR) filed an application before the Supreme Court
under Article 32 of the Constitution, claiming compensation for the victims of the firing. It was held
by the supreme Court that the state should pay compensation of Rs. 20000/- for every case of death
and Rs. 5000/- for injured person. This amount was ordered to be paid within two months without
prejudice to any just claim for compensation that may be advanced by the suffers afterwards.
In Sabastian M. Hongray v. Union of India AIR 1984 SC 1026, BhimSingh v. State of J & K AIR
1986 SC 494, Rudal Shah v. State of Bihar and Saheli v. Commissioner of Police, Delhi, AIR 1990
SC 513 the Supreme Court recognized the liability of the state to pay compensation, when the right
of life and personal liberty as guaranteed under Article 21 of the Constitution had been violated by
the officials of the state.
In Sabastian M. Hongray two persons were taken in custody by the army authorities at Manipur. The
army authorities failed to produce those two persons in obedience to the writ of habeas corpus. They
were supposed to have met unnatural death while in army custody. The wives of the two missing
persons were awarded exemplary costs of Rs.1 lac each and this amount was ordered to be paid within
4 weeks.

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Dr. Bharat G. Kaurani Asso. Professor N. B. Thakur Law College, Nasik.

In Saheli v. Commissioner of Police, Delhi AIR 1990 SC 513 the death of a 9 year old boy was caused
by beating and assault by a police officer. In the writ petition filed by the Women’s Civil Right
Organisation, known as SAHELI, the supreme court allowed damages to the boy’s mother.
Fundamental Rights under Article 21 available to Foreign Nationals also
In Chairman, Railway Board v. Chandrima Das, AIR 2000 SC 988 a Bangladeshi woman was gang
raped by railway employees in Yatri Niwas, a railway building, at the Howrah Railway Station. It
was held by the Supreme Court that the right to “Life” contained in Article 21 is available not only
to every citizen of the country, but also to every “person”, who may not be a citizen of the country.
Even a tourist coming to this country is entitled to the protection of his life. Fundamental Rights in
India are in consonance with the Rights contained in the Universal Declaration of Human Rights
adopted by the U.N. General Assembly. The Central Government was, therefore, held liable to pay
damages to the persons wronged by the Railway employees.
Present position in India is uncertain
Has the law as stated in Kasturilal has been changed through a number of decisions of the supreme
court referred to above? Should the courts in India follow Kasturilal or subsequent decisions of the
supreme court in which the state has been held liable for the wrongs of its servants? It is interesting
to note that in many of the cases, the supreme court has granted compensation as an ancillary relief
while exercising its writ jurisdiction under Article 32 of the constitution.
The supreme court has not only itself granted compensation as an interim measure but has also
expressly stated that the same is granted without prejudice to the right of the petitioners to claim just
compensation from the state by a subsequent regular suit.
This approach by the supreme court is a welcome measure which was long overdue to do away with
the outmoded law which was being applied for historical reasons, and perhaps, owing to the wrong
interpretation of the law on the subject.
In N. Nagendra Rao & Co. v. State of A.P. AIR 1994 SC 2663 : the supreme court considered the
question of vicarious liability of the Government for the negligence of its servants it noted the earlier
supreme court decisions in Vidyawati’s and Kasturilal’s cases, recommendations of the Law
Commission in its First Report for statutorily recognizing the liability of the state as had been done
in England through the Crown Proceedings Act, 1947 and in USA through the Federal Torts claims
Act,1946. It therefore, held that the doctrine of sovereign immunity has no relevance in the present
day.
It is unfortunate that the recommendations of the law commission made long back in 1956, and the
suggestions made by the Supreme Court, have not yet been given effect to. The unsatisfactory state
of affairs in this regard is against social justice in a welfare state. It is hoped that the Act regarding
state liability will be passed without much further delay. In the absence of such legislation, it will be
in consonance with social justice demanded by the changed conditions and the concept of welfare
state that the court will follow the recent decisions of the supreme court rather than Kasturilal.
------------------------------------------------------------------------------------------------------------------------

Topic 8 Trespass to Person

Assault, Battery, Mayhem and False Imprisonment
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Dr. Bharat G. Kaurani Asso. Professor N. B. Thakur Law College, Nasik.

A person can institute civil and criminal actions if his right to personal security civil and criminal
actions if his right to personal security is threatened unlawfully by another. Such threat resulting in
bodily harm or restraint may be termed as ‘trespass to person’.
The security of the person of the mankind is the most important function of the law. The law of crimes
prescribes different kinds of punishments for different kinds of injuries to the person of a human
being. The law of tort is concerned with the award of a damage to the person aggrieved. For example:
A beats B with lathi. In a criminal proceeding, A may be sent to jail or may have to pay a fine to the
Government. In a tortuous suit A will have to pay damages to B for his injuries.
An injury to the person for which action lies in tort may be divided in three kinds : Assault, Battery
and False Imprisonment.
Assault
Definition: According to Dr. Winfield, an assault is an act of the defendant which causes in the minds
of the plaintiff reasonable apprehension of the infliction of a battery on him by the defendant. Thus
the main test in assault is to create a reasonable apprehension in the minds of the plaintiff that
defendant is about to use force or attempting to use force against him, whether it caused any harm or
not.
An assault is an attempt to apply force to another’s person (body). In, assault, the force is not actually
applied but only attempt is made. For example, it will be assault, only to attempt to throw stone,
water, or to strike a person with a stick.
Essentials of assault
In an action for assault the plaintiff has to prove the following things:
(i)Intention to use/force/threat
To constitute assault there must be an act involving some bodily movement or gesture causing threat
or force on the part of the defendant i.e. there was some gesture or preparation which constituted a
threat or force.
So the first thing which the plaintiff ahs to show in an action for assault is that there was some gesture,
or preparation which constituted a force. Mere words are not enough nor passive conduct. There must
in all cases be the means of carrying the threat into effect. If A while lying on his bed says to B ‘I will
beat you’ it will not be an assault as there is neither gesture nor preparation.
So, in assault, the intention of the offender is an important factor. Thus, if X meets his old friend Y
on the road, and strikes him on his back, saying Hi! Hows’ Life? It is certainly not assault. But, if in
a heated argument between X and Y, X attempts to strike Y, but is stopped in nick of time by Z, it
would amount to assault. Threatening any person with loaded pistol or with a knife even though the
pistol is unloaded and this fact is not known to the wronged person is a assault.
(ii)Reasonable apprehension of such force
The gesture or preparation on the part of the defendant should cause reasonable apprehension in the
mind of the plaintiff. So the test is whether an apprehension has been created in the mind of the
plaintiff that battery is going to be committed against him. If the plaintiff knows that the pistol is
unloaded, there is no assault.
(iii) Capacity to use force [Defendants’ ability to carry out a threat into execution immediately]:
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In order to constitute an assault it is also necessary that the person so assaulted must, on reasonable
grounds believe that the person so assaulted has the ability to apply the force so attempted to him. If
it is clear to the plaintiff that the defendant has no present ability to carry out the threat because he is
too far away to bring the threat into action, there is no assault.
Thus, if one man makes a gesture to throw stone at a person who is sitting at such a height, whereby
throwing it is humanely impossible to make the stone reach, the later has no reasonable ground to
believe that he will be hit. In this case, though a man makes an attempt , there is no assault, as the
second man has no reason to believe that the first man can his him.
So it is also essential that there should be prima facie ability to do the harm. If the fist or the cane is
shown from such a distance that the threat cannot be executed, e.g. by a person from moving train to
another standing away on a platform, there is no assault.
Stephen v. Myers (1830): is a good illustration on the point. In this case the plaintiff was chairman
(Parish) of the managing committee of a Church. The meeting of the committee was going on. The
defendant was sitting on the same table at a short distance. During the discussion the defendant started
shouting and misbehaved. A motion was carried out by a large majority that he should be turned out
of the meeting. Upon this the defendant got angry and advanced towards the chairman with his fist
clenched saying that he would rather pull the chairman out of the chair than be turned out of the room.
But he was stopped by the members who were next to the chairman and thus he could not fulfill his
intention.
The plaintiff sued him. He contended that he was far away from the defendant and therefore it was
impossible to assault him. The court held that the defendant was liable for assault on the plaintiff and
awarded him one shilling as damages. The court held found that the defendant was advancing with
an intention to strike the chairman and if he had not been stopped by others he would have been
definitely successful in fulfilling his intention. So the plaintiff has to prove that the defendant is
capable of carrying out his threat towards him. E.g. if a weak old man threatens a stronger man to kill
him, it is no assault.
Under section 351 of the Indian Penal Code, assault is a crime. According to section 351 whoever
makes any gesture, or any preparation intending or knowing it to be likely that such gestures or
preparation will cause any person present to apprehend that he who makes the gesture or preparation
is about to use criminal force to that person, is said to commit an assault. Illustration – A shakes his
fist at Z intending or knowing it to be likely he may thereby cause Z to believe that A is about to
strike Z, A has committed an assault.
Generally, assault precedes battery. Showing a clenched fist is assault but actual striking amounts to
battery. Throwing of water upon a person is an assault but as soon as the water falls on him it becomes
battery. If a person is about to sit on a chair and the chair is pulled, there is assault so long as he is in
the process of falling the ground, but as soon as his body touches the floor, it will be battery. It is,
however, not essential that every battery should include assault. A blow from behind, without the
prior knowledge of the person hit, results in a battery without being preceded by any assault.
2.Battery [Means Beating]:
Definition: According to Salmond: “Battery is the application of force to the person of another
without any lawful justification.”

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Dr. Bharat G. Kaurani Asso. Professor N. B. Thakur Law College, Nasik.

Battery is an accomplished assault. The attempt to strike with stick is an assault, but to strike actually
is battery. The application of even the slightest amount of force is actionable. Battery need not be
accompanied by bodily harm. Even to touch a person without his consent or any other legal
justification is battery. It is to be noted that battery is always without consent of the person harmed.
If there is his consent, it will not amount to battery, therefore a beating suffered voluntarily is not
actionable.
The following are examples of Battery
(a)Inflicting pain upon another by beating or falling down.
(b)throwing water at a person is assault, if the water falls on him as intended it is battery also.
(c)Spitting in a man’s face.
(d) making a person to fall down by pulling his chair.
(e) causing another to be medically examined against his or her will.
(f)Physical injury is always not necessary least touching of another in anger is battery.
(g)to blacken the face of a person by using force against his wishes.
So battery is the actual application of force to the person of another done without lawful justification
in rude, angry or revengeful manner. The tort of battery corresponds to the offence known as the use
of criminal force in section 350 IPC.
Essentials of Battery :In an action for battery the plaintiff has to prove the following things:
1.Use of force
The first element which one has to prove in an action for battery is the use of force to the person of
another e.g. slapping or pushing. It may be done by bringing an object into contract with him like
throwing stone on him or setting a dog upon him, without any lawful justification. There is no battery
unless there is an act by the defendant.
How much force is applied is immaterial. It may be of small amount. Even though the force used in
every trivial and does not cause any harm, the wrong is still constituted. Physical hurt need not be
there. Least touching of another in anger is a battery.
But mere accidental contract with body of a person does not amount to battery. Such contacts cannot
be avoided in the modern times. Similarly, touching another on the shoulder to attract his attention
also does not amount to battery.
2.Force must be intentional
The second element which must be proved in an action for battery is that the use of force must be
intentional and without lawful justification. An unintentional touching which is an outcome of mere
accident does not amount to battery. Thus in Stanley v. Powell (1891) one person of a shooting party
fired his gun at a fowl (Pheasant a type of Bird). The short rebounded against a tree and wounded the
plaintiff. it was held that it was not a battery.
This tort protect not merely the interest in freedom from bodily harm but also that in freedom from
insult, spitting in the face is battery but touching another in a crowd is not. The least touching another
in anger is battery, but if two or more meet in a narrow passage and without any intent to harm, the
one touches the other gently it is not battery.
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3.Without lawful justification

Consent, express or implied, is a lawful justification. A friendly push or staking hand is not battery.
To touch a man in friendly manner in order to draw his attention is not a battery. A parents chastising
[to punish to beat] his child, a policeman’s laying hand on a thief for arrest under a warrant, a jailor’s
forcible feeding of a prisoner in jail on ground of necessity are the examples of acts done under
authority not amounting to battery. Thus certain acts done under authority or statute do not amount
to battery.
Damages – Battery like all suits in trespass is actionable per se i.e. without proof of damage, i.e.
physical injury. The use of force may also be justified in pulling a drowning man out of water, forcibly
feeding a hunger striking prisoner to save his life [Leigh v. Gladstone (1909)] or performance of
operation of an unconscious person by a competent surgeon to save the formers life.
In Pratap Daji v. B.B. & C.I. Rly (1875) 1 Bom 52 the plaintiff entered a carriage on the defendants
railway but by oversight failed to purchase a ticket for his travel. At an intermediate station, he asked
for a ticket but the same was refused. At another place, he was asked to get out of the carriage since
he did not have a ticket. [i.e. 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].
On his refusal to get out, force was used to make him get out of the carriage. In an action by him for
his forcible removal, it was held that the use of the force was justified as he, being without a ticket,
was a trespasser. The defendants were, therefore, not liable. Use of force to oust a trespasser from
certain premises perfectly justified. However, only reasonable force can be used against a trespasser.
It should not be more force that is necessary to repel the invasion. Use of excessive force than is
necessary will make a person liable.
In Cherubin Gregory v. State of Bihar AIR 1964 SC 205 it was held that fixing naked live electric
wire without due warning across the passage of a latrine to keep the trespassers away from the latrine
and thereby causing the death of a trespasser was actionable.
In Hurst v. Pictures Theatres Ltd., (1915) 1 KB 1., the plaintiff had a valid ticket for a seat in a cinema
theatre but he was forcibly turned out from his seat by the theatre employee who was acting under a
mistaken belief that the plaintiff had entered the show without paying for his seat. Held, that the
defendant was liable to pay damages for assault and battery.
Distinction between Assault and Battery
Generally every battery includes assault but every battery is not assault. The following are distinctions
between assault and battery.
In order to constitute battery bodily contact is necessary, whether it is direct application of physical
force or through the medium of some object. But in assault actual bodily contact is not necessary and
the act of the defendant which creates reasonable apprehension of use of force against him constitute
assault, even if force has not been used. For example, to throw a stone at a person is assault and if the
stone falls upon him then it becomes a battery. To throw water on a person is an assault but as soon
as water falls upon him it becomes battery. Likewise, to swing a stick towards a person is an assault
but when the stick touches his body then it becomes a battery.
Winfield has said in an interesting example that pulling away a chair, when a person is about to sit
on it is probably an assault till the moment the person reaches the flour. But as soon as he comes into

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contact with the floor, it will be battery. The word battery has not been defined in IPC. Assault is a
criminal offence punishable under section 351 IPC.
False Imprisonment
Meaning: False imprisonment means total restraint of a person’s liberty without any lawful
justification. Example – unlawful arrest or detention, disallowing a person to come out of his house,
etc.
Definition
False imprisonment may be defined as an imposition of a total restraint upon the liberty of a person
for any period, however, short, without any lawful justification. So it is a complete deprivation of
liberty for any time however short, without lawful cause.
To constitute this wrong, imprisonment in the ordinary sense is not required. When a person is
deprived of his personal liberty, whether by being confined within four walls or by being prevented
from leaving the place where he is, it is false imprisonment. If a man is restrained, by a threat or force,
from leaving his own house or an open field, there is a false imprisonment. Detention may be even
on a highway, or in a moving object like a bus or a train.
If A, a man of power asks B to stand in the Sun and if B out of fear and in obedience to the order of
A, keeps standing in the Sun, this is false imprisonment. It is a tort as well as an offence under section
340 of IPC it is called ‘Wrongful confinement’.
Essential elements
In order to fix liability for false imprisonment the plaintiff has to prove the following essentials-
1. There should be total restraint on the liberty of a person- i.e. Total Restraint
Under criminal law, whether the restraint is total or partial, the same is actionable. When the restraint
is total and a person is prevented from going out of certain circumscribed limits, the offence is that
of wrongful confinement as defined in section 340 of IPC.
On the other hand, when the restraint is not total but it only partial, and a person is prevented merely
from going to a particular direction where he has a right to go, it is wrongful restraint, according to
section 339 IPC.
Under civil law, the position is different. The tort of false imprisonment is constituted when there is
a total restraint. It is no imprisonment if a man is prevented from going to a particular direction, but
he is free to go to any other direction. To constitute this wrong, a person must have been completely
deprived of his liberty to move beyond certain limits. If a man is prevented from going to a particular
direction but is allowed to go back, there is no false imprisonment.
To constitute false imprisonment the period of confinement or length of detention, and the place of
confinement is immaterial. But, the condition is that the confinement or detention or restraint must
be total.
Means of escape: if the plaintiff is prevented from a particular direction and there is means of escape,
i.e. alternative way it is no wrongful confinement.
Birds v. Jones (1845) – In this case a part of the public footway, as opposed to carriage way, on
Hammer Smith bridge was wrongfully enclosed by the defendant. Seats were put there and entry to

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the enclosure was allowed only to those who made the payment to watch the rowing there (to witness
a boat race).
The plaintiff asserted his right of using this footway, climbed over the fence of the enclosure but was
prevented to go forward i.e. the plaintiff insisting on passing through the enclosed foot way. The
defendant asked the plaintiff to pass through the other side. The plaintiff refused to do so and remained
there for half an hour and subsequently brought an action for false imprisonment.
Held that there was no false imprisonment as there was no total restraint on the plaintiffs liberty; the
plaintiff being free to go back or even to cross the bridge through the carriage way. So in this case it
was held that the defendants were not liable for false imprisonment as there was no total restraint.
The total restraint results in false imprisonment, however short its duration may be. In Mee v.
Cruikshank, (1902) after his acquittal, a prisoner was take down to the cells he was again brought
to the prison by the defendant police and detained him for a few minutes while some questions were
put to him by the warders, there was held to be false imprisonment.
2.Unlawful detention i.e. it should be without any lawful justification
In order to constitute the wrong of false imprisonment it is necessary that the restraint should be
unlawful or without any justification.
If a person is not released from jail after his acquittal but is continued to be detained thereafter, the
detention cannot be considered to be lawful. In Rudul Shah v. State of Bihar aIR 1983 SC 1086 the
petitioner was acquitted by the court in 1968 but was released from the jail in 1982 i.e. 14 years
thereafter. The State tried to justify the detention by pleading that the detention was for the medical
treatment of the petitioner for his mental imbalance. The plea was rejected. As an ancillary relief in a
writ of habeas corpus by the petitioner a sum of Rs. 35000 was granted as compensation as an interim
measure by the supreme court, without precluding the petitioner from claiming further compensation.
Lawful detention: When there is some justification for detaining a person, there is no false
imprisonment.
John Lewis & Co. v. Time (1952) – 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 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 for false imprisonment. The defendants were not held
liable, as there was lawful justification in detaining the plaintiff and her daughter.
It may be noted here that it is not for the plaintiff to prove that the imprisonment had been without
justification. The plaintiffs case is complete when he proves that he had been detained by the
defendant or his agent. in case the defendant wants to avoid the liability, he has to prove some lawful
justification for the detention.
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.
Justification/Defences
Judicial authority

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Judicial Officers Protection Act, 1850 (Indian) grants protection to judicial officers for anything
done or ordered to be done by them in discharge of their judicial duty. A person arrested by the orders
of a judicial officer cannot sue the judicial officer for false imprisonment or for any other wrong. The
protection is granted even if the judicial officer exceeds his jurisdiction to do that act. Such a
protection is not available if the magistrate, if acting mala fide exceeds his jurisdiction.
Confinement of lunatics
Where the plaintiff was in such a state as to be dangerous to himself and others.
Self defence
Assault and battery are justified if they are committed in self defence or in defence of property. Every
person has a right, subject to certain limitations, to defend his own body and property and those of
any other person against the invasion by third person.
For example A comes to the house of B and picks up Bs watch without his consent. B asks him not
to do that A does not mind B’s words but tries to escape away B assaults A for taking back the watch.
Here B cannot be held liable for his assault. It should be borne in mind that the force employed for
the defence should not exceed that which is reasonably required in the circumstance for example if
one threatens to beat you with stick, you should not strike of his head with a sword.
The term ‘self-defence’ should not be confined to its liberal meaning to denote defence of own-self,
but it extends to protection of wife, children, parent, servants, etc. It extends to both, protection of
person as well as the property whether movable or immovable.
Parental or other authority
Where the defendant was administering reasonable punishment in the exercise of parental or other
special authority. Assault, battery and false imprisonment may be justified if they are committed in
exercise of parental or some other authority like it. Parents may, as they really do every day. Chastise
their children by putting them in fear by beating or by restraining their liberty to move. So can a
teacher do. But he can chastise (punish) only for the wrong committed by the children in the school
or while going to and coming from the school.
Public authority
Certain public persons are authorized to arrest individuals in certain circumstances. A public officer
has power and is authorized to arrest any person who has been concerned in any cognizable offence
or against whom a reasonable complaint has been made of his having been so concerned. In many
other circumstance police officers can arrest an individual without running the risk of being sued for
the damages.
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 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 produced 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

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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.
Expulsion of trespasser
Assault or battery committed in course of ousting a trespasser is justifiable. But where the trespass is
unintentional or under a mistaken fact or belief, and the trespasser can be asked to leave quietly, the
use of force will not be justified.
Recapture of goods
The rightful owner or his servant may justify use of force in order to re-take or repossess himself of
land, goods or any other chattel, which are in wrongful possession of another and he refuses to deliver
them upon request.
Leave and Licence
Voluntary consent of the plaintiff to the defendant’s act of assault or battery will be a good defence
for the defendant to insulate himself from liability. This defence is based on the general principle of
volenti non-fit injuria which means that where a person voluntarily exposes himself to risk of injury,
he cannot complain of any damage or harm resulting out of such an act. Plaintiff’s own consent may
also be pleaded in defense against his false imprisonment.
Legal process
Any physical force used in exercise of some legal duty or performance of legitimate functions
assigned to the defendant, shall not be actionable as assault or battery. Thus were a police officer in
exercise of his legal duty enters the house of a criminal suspect who is reluctant to come out of his
house to surrender before the police, may be forcibly taken into custody by using reasonable force.
Similarly, forcible feeding of hunger-striker who is about to die of starvation no offence as saving
human life is considered to be a paramount duty of every person.
Remedies
1.Action for damages
Whenever the plaintiff has been wrongfully detained, he can always bring an action to claim damages.
Compensation may be claimed not only for injury to the liberty but also for disgrace and humiliation
which may be caused thereby. It may also be for loss of time, injury to feeling, mental suffering,
tension, loss of social status, etc.
2.Self-help
This is the remedy which is available to a person while he is still under detention. A person is
authorized to use reasonable force in order to escape from detention instead of waiting for a legal
action and procuring his release thereby. So when a person is under an illegal detention, he is
authorized to use reasonable force to escape from it. It is the principle of natural justice.

3.The writ of Habeas Corpus

It is a special and speedier remedy available to the person who is detained unlawfully. An application
of habeas corpus can be made by the person arrested or his near or dear in supreme court under Article
32 and in High Court under Article 226 of the Indian constitution.
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By this writ, the person detaining is required to produced the detained person before the court and
justify the detention. If the court finds that the detention is without any just or reasonable ground i.e.
it is false imprisonment it will order that the person detained should be immediately released.
The courts hearing the petition may grant compensation as ancillary relief in such cases. As has been
noted above that in Rudul Shah v. State of Bihar and Bhim Singh v. State of J&K, the supreme court
granted such compensation in writs of habeas corpus.
Inevitable accident
Due to the stuck off the lift, and imprisoned in the lift cabin is not a false imprisonment, if it is
accidental. If it is intentionally done by the defendant, then it is a wrong imprisonment.
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Topic 10 Trespass to Property/ Trespass to immovable property/Trespass to land
Meaning: The expression ‘Trespass to land or immovable property’ literally means unauthorized
interference with possession or enjoyment of land of another. Example, entering another’s land or
house unauthorisedly or, placing some physical objects on another’s land. So trespass to land means
interference with the possession of land without lawful justification.
Trespass to land is an offence under section 441 of the IPC. In trespass, the interference with the
possession is direct and through some tangible (physical which can be seen) object. If the interference
is not direct but consequential, the wrong may be a nuisance.
Example planting a tree on another’s land is a trespass but if a person plants a tree over his land and
its roots or branches escape on the land of neighbor, that will be a nuisance. Trespass could be
committed either by a person himself entering the land of another person or doing the same through
some material object, e.g., throwing of stones on another person’s land, driving nails into the wall,
placing ladder against the wall of another, etc. Allowing cattle to stray on another’s land is also a
trespass.
Going beyond the purpose for which a person has entered certain premises or crossing the boundary
where he has no authority to go, amounts to trespass. Thus, if a person, who is allowed to sit in a
drawing room, enters the bedroom without any justification, the entry in the bedroom is a trespass.
Where there is a justification to enter the premises of another person, it is no trespass. In Madhav
Vithal Kudwa v. Madhavdas Vallabhdas AIR 1979 Bom 49 the defendant was the plaintiff’s tenant.
He was living on the first floor of the multi-storied building. The plaintiff contended that the parking
of the car in his compound without his permission was a trespass and sued for an injunction to restrain
the defendant from parking his vehicles there.
It has held that the tenant of a multi-storied building for parking of his car or other vehicle without
causing any inconvenience to anybody, as in the present case, and that right can be exercised without
the permission of the landlord.
Trespass is a wrong against possession rather than ownership. The Graham v. Peat (1801) the plaintiff
was holding the land under a lease which was void but he was nevertheless entitled to bring an action
for trespass against the defendant who had entered that land without lawful justification, because,
“any possession is a legal possession against the wrongdoer.

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Definition : Trespass to land is an unwarrantable entry upon the land of another or any direct or
immediate act of interference with the possession of land.
Essential element: To constitute trespass to land, following ingredients are to be satisfied:
1.Unauthorised interference [Disturbance of possession]:
The plaintiff has to prove that there exists some unauthorized interference of the defendant with
possession or enjoyment of his land.
The disturbance of possession may be committed by entering without lawful justification upon lands
in possession of the plaintiff. By entry the commonest form of trespass is committed when the
defendant enters into the land or building possessed by the plaintiff. To enter another’s land is a
trespass, it is immaterial whether one is on the land momentarily or stays on it for long except in
fixing damages.
To constitute trespass the slightest crossing of boundary is sufficient, e.g., to put one’s head through
a widow or sit upon a fence. In civil trespass the intention of the defendant is immaterial whereas in
criminal trespass it is the chief ingredient.
2.Direct physical interference
Such interference with plaintiff’s land must be direct example planting a tree on plaintiff’s land is
direct interference and it amounts to trespass to land. So 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, a licensee for a particular period, he is entitled to sue the trespasser.
3.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.
Example: (a) A person purchases to see 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.
4.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
explains the law relating to the Cattle Trespass.
5.Actionable per se [proof of damage]:
Trespass is actionable per se, 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.
So trespass is actionable per se and the plaintiff need not prove any damage for an action of trespass.
Every invasion of property be it ever so minute, is a trespass. Neither use of force nor showing any
unlawful intention on the part of the defendant are required. Trespass in civil law differs from that in
criminal law on this point. According to section 441 IPC the offence of criminal trespass consists in
entering or remaining on the land of another person with an intent to commit an offence or intimidate,
insult or annoy any person in possession of such property.
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Even an honest mistake on the part of the defendant may be no excuse and a person may be liable for
the trespass when he enters upon the land of another person honesty believing it to be his own.
How land trespass may be committed:
1.By wrongful entry : It is a common mode of committing land trespass. When a persona unlawfully
enters into another’s land, house, premises, etc. without the latter’s consent or remains there after
entering lawfully, he would be guilty of land trespass which as offence as well as tort. extracting
things underlying the ground such as mining without a valid permission or licence would also be case
of land trespass.
2.By remaining on the land: At times, the entry of a person in the land of another may be lawful
and with consent, but remaining there after the purpose of entry is over and request being made by
the owner or occupier to quit, will be an actionable trespass to land.
3.By placing things on another’s land: If a person keeps something on another’s land illegally
without latter’s consent or permission and lets it remain there dispute being asked to remove it, his
act would amount to trespass to land. For example, piercing a nail in the wall of another person’s
house is trespass to land.
4.Animal trespass: Where the pet or domestic animal such as cow, bull, goat, sheep, poultry of a
person unauthorizedly enter into the house or premises of another person, the former will be liable
for trespass to land.
Remedies
There are two kinds of remedies available against trespass to land to an aggrieved person:
1.Extra-judicial remedies
(i)Expulsion of the trespasser
The owner of a house or a land can use force in expelling a trespasser. But it must be remembered
that the force used must be reasonable and proportionate. The trespasser must be asked and be given
an opportunity to leave the premises before he is driven out of force.
So 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.
(ii)Re-entry
A person who has been dispossessed from his land or building by another is entitled to enter and take
possession of his property if he can do so peacefully.
If a persons possession had been disturbed by a trespasser, he has a right to use reasonable force to
get a trespasser vacated. A person, who being thus entitled to the immediate possession, uses
reasonable force and regains the possession himself, cannot be sued for a trespass. Ousting a trespass
by a person having a lawful right to do so is no wrong.
Thus in Hemmings v. Stoke Poges Golf Club (1920) the plaintiff had been in the employment of the
defendants. On the termination of the service, the plaintiff was given a proper notice to quit the house.
On his refusal to do so, the defendant, by the use of reasonable force, themselves entered those
premises and removed the plaintiff and his furniture out of it. The defendants were held not liable
because their action had only amounted to an ejectment of a trespasser.

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3.Distress damage feasant

This phrase means detention of things doing damage. This right can be exercised by the occupier of
a land with respect to the cattle or other things which trespass on his land do damage. The occupier
can detain the cattle as security for the compensation for the damage done by the cattle. The owner
of the cattle may pay for the damage and get his cattle released. In India, the people, instead of
detaining the animals in their possession send them to cattle pound, i.e. a government detention
house.
So the idea is to force the owner of the chattel to pay compensation and after the compensation has
been paid that Chattel is to be returned. Any chattel, animate or inanimate, can be detained. The thing
seized, therefore, may be a cricket ball, a football, a Cow, a horse or even a railway engine. The right
to detain things is not limited for the damage to the land, the same can be exercised for damage done
to chattels as well.
Moreover, the above stated right can be exercised when the trespassing animals or chattel is still
creating a trespass. There is no right to follow the things after it has gone out of those premises or to
recover them after the owner has taken them away. It is also necessary that the things seized must be
the very thing which had trespassed and caused the damage. Thus, if the damage has been done by
one animal, no other animal, even from the same herd, can be seized for the exercise of the right.
Judicial remedies
The plaintiff has the following judicial remedies available against the defendant:
(a)Suit for damages:
There may be a case of trespass where the defendant may not have dispossessed the plaintiff nor did
he cause physical injury to the property of the plaintiff. This may happen where the defendant enters
into the property of another without a legal justification. For example A while passing by a road enter
his B’s house and comes out instantaneously without committing any mischief there. Here B can file
a civil suit against A for damages. But where there are aggravating circumstances exemplary damages
may be awarded. In some cases, the defendant after making entry may also cause some physical injury
to the plaintiff. In such cases the plaintiff is entitled to the damages for mere entry and damages for
the actual injury caused to the property.
(b)Recovery of possession [Action for ejectment]
When the defendant commits trespass and dispossesses the plaintiff the plaintiff can bring a suit for
possession. The plaintiff has a right of recovery of land by a suit in the court of law.
(c)Action for mesne profit:
Apart from the right of recovery of land by getting the trespasser ejected, a person who was
wrongfully dispossessed of his land may also claim compensation for the loss which he has suffered
during the period of dispossession.
An action to recover such compensation is known as an action for mesne profits. It the plaintiff so
likes, he may sue in ejectment and mesne profits in the same action. As already stated above, in an
action for mesne profits, the plaintiff can recover compensation for the loss which he has suffered
because of dispossession from that land during that period.
(d)Injunction

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If the defendant has been repeatedly interfering with the possession of the plaintiff. the plaintiff may
file a suit for injunction to restrain the defendant from interfering with plaintiffs possession.
Justification – Defences to Trespass
We have seen in the foregoing lines that a person entering upon or into the property in possession of
another is liable for trespass. But this does not mean that everybody entering into or upon the property
of other will be guilty of civil trespass. There are 2 kinds of persons whose entry is not a trespass:
1.Persons entering by the authority of the party, i.e. owner or the occupier;
2.Persons entering with the authority of law.
1.Authority of party
A private pay may give authority to another in two ways:
(a)Grant:
The owner of a certain property may be some mode of transfer [sale, mortgage or gift] grant right to
another and by the authority of such grant the grantee may enter without any liability.
(b) Leave and Licence
Entering certain premises with the authority of the person in possession amounts to a licence and the
defendant cannot be made liable for trespass.
A licence may be express. The cases of guests in a house and a purchaser of tickets to attend a cinema
are examples of express licence. The licence may be implied by the consent of the owner. A stands
by allows B to pass over his A’s field. A allows B’s cattle to graze on A’s land. Here the consent is
implied and B is not liable for trespass.
2. Persons entering under the authority of law:
In the following cases a person entering into or upon the property of another even without his
permission will not be liable for civil trespass because they shall be presumed to be exercising that
right under the authority of law.
(a)Re-entry by the owner:
A owner who has been dispossessed by another may re-enter on his land peacefully. And if he so
enters he cannot be sued for trespass in civil courts.
(b)Entry for taking back one’s own chattel
A person may enter into or upon the property in possession of another, without being liable for
trespass, to take back his goods in the following cases:
1.When the article has been wrongfully taken and kept there by the person in possession. Suppose A
is in possession of a garden. He steals or rolling machine of B and keeps it in his garden. Here B has
a right to enter into garden and take back his roller.
2.When the chattle has been placed over the land of the defendant by a third person by a criminal act
of his (the third person). In the above mentioned example if the roller was stolen by one C and kept
in the garden of A, B has a right to go to the garden to take the roller back.

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3.If the article is placed there by the act of God. Take an example suppose B has kept some logs
beside his house. There is a flood. The logs float in water and reach the garden of A. They are stopped
by the trees B can go to the garden and take back the logs.
(c) Entry to abatement of nuisance
A person after giving notice for removal to the occupier of the land can himself enter into or upon the
property in possession of another to abate, i.e. to remove the nuisance. For instance, A has a house
adjacent to the grove(a group of trees standing together) of B. A horse of B dies. He puts the dead
body of the horse in the grove. The carcass is putrefied and the bad smell makes it impossible for A
to live in the house. Here A may give notice to B to remove the dead body of the horse and on his
failure to himself may enter and remove it away and for that entry A cannot be held liable for trespass.
Where the branches of tree of A have occupied the roof of B, and causing the rain water pouring into
B’s house, B can cut those branches. But in doing so he must act peacefully and have to give prior
notice to A, before he cut the branches.
(d)Execution of legal process
Persons who go to serve the summons of the court or who go to arrest persons in pursuance of the
warrant, can enter the premises of the persons in whose name the summons or warrants is issued and
for this they cannot be liable for damages in an action for trespass.
(e)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 acts of necessity.
(f) Right of Easement
Easement is a right which the occupier of certain land or owner possess, as such, for the beneficial
enjoyment of that land, to do and continue to do something or to prevent or continue to prevent
something being done in or upon in respect of certain other land, not his land. This right may be
acquired by prescription or by a written grant. Right to passage through land, right to fetch water,
right to support of house or building, right to air or light are some of the easements rights which the
occupier of land acquires against the adjoining land. A person can plead the defence of easement right
in an action for trespass to land against him. For instance, a person may enter the adjoining land for
the repairs of his house and this act will not be actionable as a trespass to land.
Trespass ab initio
When a person enters certain premises under the authority of some law and after having entered there,
abuses the authority by committing some wrongful act there, he will be considered to be a trespasser
ab initio to that property [i.e. from the very beginning].
Even though he had originally lawfully entered there, the law considers him to be a trespasser from
the very beginning and presumes that he had gone there with that wrongful purpose in mind. The
plaintiff can, therefore, claim damages, not only for the wrongful act which is subsequently done by
the defendant but even in respect of original entry which is now considered too be a trespass. In order
that the entry of a person to certain premises is treated as trespass ab initio non-feasance (i.e., omission
to do something) is not enough, it is necessary that the defendant must have been guilty of positive
act of misfeasance (i.e. doing of a wrongful act),

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When in an entry, authority or licence is given to any one by the law and he abuses it, he becomes a
trespasser ab initio, that is t say, the authority or justification is not only terminated, but is treated as
if it has never existed. For example the law gives authority to a person to enter into a common inn,
but if a person, who enters the inn, steals anything, the law presumes that he entered for that very
purpose, and holds him liable.
Conditions : The following 2 conditions must be satisfied before applying the doctrine of trespass
ab initio:
1.Authority must be given by law:
The authority abused must have been given by law, and not by an individual. When a person, who
has entered by consent or licence of the owner, subsequently abuses that licence, he is, no doubt,
liable for that abuse, but not as a trespasser ab initio.
2.Subsequent act must be a misfeasance:
The subsequent abuse must amount to a positive wrongful act or mis-feasance, as opposed to a mere
omission or non-feasance. A mere non-feasance does not amount to such an absue as to render a man
a trespasser ab initio. Thus, in six carpenters case it was held that a man not liable as a trespasser ab
initio by reason of his refusal to pay for food and wine consumed at an inn.
Six Carpenter’s case [Vaux v. NewMan] (1610): The proprietor of an inn brought an action for
trespass against six carpenters, who having entered the inn, ordered a quart of wine, drank it, and
refused to pay for it. The question was, whether in such circumstances, their failure to pay for the
wine could be treated as a misfeasance, which would make their original entry into the in unlawful
as a trespass. It was observed that not doing cannot make the party who has authority or licence by
the law, a trespasser ab initio, because not doing is no trespass….so, in the case at Bar, for the denying
to pay for it is no trespass, and therefore, they cannot be trespassers ab initio.
This leading case lays down 3 points:
1.That if a man abuses an authority given to him by law, he becomes a trespasser ab ignition,
2.That in an action of trespass, if the authority be pleaded, the subsequent abuse can be argued.
3.That a mere non-feasance does not amount to such an abuse as renders a man a trespasser ab initio.
It has also to be noted that it is not every act of misfeasance which can covert the lawful entry of a
person to a trespass ab initio. It is further necessary that the fact of misfeasance must be such that will
render the presence of the defendant on the premises as wholly unjustified.
The case of Elias v. Pasmore, (1932) illustrates the point. In this case, the defendants, certain police
officers entered the plaintiffs premises to make a lawful arrest. There they removed certain documents
without having any lawful authority for that, which was, therefore, an act of misfeasance. By their
act of mis-feasance, their presence there had not become wholly unjustified because the arrest, i.e.
the lawful purpose, had yet to be accomplished. They were held trespass only with regard to the
documents which they had seized and not trespassers ab initio to those premises.
So in an action for trespass, it was held that the defendants were only trespassers ab initio as to the
documents that were seized and returned, but were not liable for any damages in respect of the entry
on the premises for the purpose of arrest.
Trespass by Animals [Trespass by entry of cattle]
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Liability for animals

The damage by cattle comes under the headings of negligence and nuisance and it has been discussed
there too. This being the tort of trespass also it is dealt with here too. Cattle includes horses, sheep,
asses, goats, fowls, ducks, etc probably tame deer also, but not cats and dogs. In England the owner
of the cattle which stray’s into another’s land has always been held liable for trespass. In the trespass
by cattle no damage need be proved, nominal damage may be awarded for mere entry. Besides the
damage for entry the defendant may be liable for the special damage caused by the cattle.
Suppose a cow of A enters into the garden of B and there it grazes some plant. Here A will be liable
for the entry of his cow and for the damages done to the plants. If I own an animal, I am bound to
take care that it does not stray on the land of my neighbor. And if it strays, I will be liable for the
ordinary consequences of that trespass. Whether the escape of the animal was due to my negligence
or not is immaterial.
For instance, if my cattle strays into my neighbour’s land and does such damage as is expected by the
animal of the sort, I am liable for the consequences. In such cases the owner is liable absolutely for
the damage caused by trespass subject to the ordinary rules of remoteness of damage. That is to say
the owner of the animal is absolutely liable if the damages do not seem to be too remote to caused by
the animal.
But the propensity of an animal to do that kind of damage which is actually done is a relevant fact to
connect the damage with the trespass. Thus the proof of the fact that the particular kind of animal
which has strayed, has a propensity to do that kind of damage about which the complaint has been
made prevents the damage being too remote.
Trespass by a dog or a cat
It has been held that a man is not liable for trespass of his dog. A trespass by a horse or a cow must
do some damage even if they only wander on the land but trespass by a dong will ordinarily do no
substantial damage. There is one other reason for exempting the owner of the dog from liability. The
dogs cannot always be kept confined. They are generally let lose and so there is greater likelihood of
their entering another’s boundary. Cats have also been placed in the same privileged position.
Trespass to movable property:
There are certain torts, which may be committed against the movable properties, such as vehicles,
animals, chattels, etc. The law protects persons whose title or possession of goods, is interfered with,
or whose goods are damaged by intentional conduct.
Torts relating to movable property may be studied under the following heads:
1. Trespass to goods;
2. Detention or detenue;
3. Conversion or trover.
1.Trespass to goods:
Trespass to goods means unauthorized interference with the goods in possession of another without
any lawful justification. So 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:

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(a)Writing the names, or spoiling/cutting the seats of Bus or train;

(b)throwing stones on vehicle;
(c)removing a spare part from a vehicle;
(d)beating animals or infecting them with disease;
(e)it is also a trespass to kill a dog by giving poisonous food i.e. poisoned meat, etc.
Trespass to goods may take place by taking the goods from plaintiff’s possession. Trespass to goods
is actionable per se, that is, without the proof of any damage. However, when the plaintiff has suffered
no loss, he will get only nominal damages.
Essential elements of trespass to goods:
In an action for trespass to goods, the plaintiff has to prove the following conditions:
1.It is a wrong against possession
The plaintiff has to establish that he was in possession of the goods and the possession was lawful.
He need not necessarily be owner of the goods. When a person is in lawful possession of goods that
belong to another and the owner of the goods seizes them unlawfully, he can bring an action even
against the owner of the goods.
So interference with the possession 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 wrongdoer. The defendant cannot plead the plea of ‘jus tertii’ (i.e. 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.
Thus, in Armory v. Delamirie, (1721) the Chimney sweeper’s boy, who after finding a jewel had
given it to a jeweler to be valued, was entitled to recover its full value from jeweler on his refusing
to return the same.
2.Direct interference [wrongful disturbance of possession by direct interference of the defendant]:
The act of the defendant must effect on the possession of the goods of the plaintiff, that there must be
direct interference on the enjoyment and possession. There must be direct physical interference by
the defendant against the plaintiff’s goods e.g. killing or injuring an animals. The wrong may be
committed intentionally, negligently, or even by an honest mistake. A person driving away the car,
believing that to be his own, will be liable in trespass to the person in possession even though the
latter does not have a good title to the same.
In Kick v. Gregory, (1876) after the death of A his sister in law took out her ornaments and kept it in
another room in her house. She did so in order for its safety. The ornaments were stolen from that
room. The executors of A brought a suit for trespass to goods against his sister-in-law. It was held the
act of A’s sister in law was a trespass to goods and therefore she was held liable to pay damages to
the executors.
3.Without lawful justification

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An action for trespass to goods is actionable if it is without any lawful justification. This means that
if the defendant can plead any lawful justification for interference with the plaintiff’s property, he
will not be liable for the tort of trespass to goods.
There is justification when the defendant has seized the plaintiff’s goods or cattle under the exercise
of his right of distress damage feasant. There is also justification when the damage to another person’s
goods is caused in exercise of the right of private defence.
In Cresswell v. Sirl, (1948) – the defendant’s son shot the plaintiff’s dog because the dog was
attacking his sheep and pigs. In an action by the plaintiff, the court of appeal held that it was for the
defendant to justify the killing and he could doo the same by providing that the dog was either
attacking the animals or there was an imminent apprehension of the attack and also that shooting was
the reasonable means of preventing the invasion.
2.Detention or detenue:
When the defendant is wrongfully detaining the goods belonging to the plaintiff and refuses to deliver
the same on lawful demands, the plaintiff can recover the same by bringing an action for detenue. It
is thus an action for the recovery of goods unlawfully detained by the defendant.
If the original possession is lawful but subsequently the goods are wrongfully detained, an action for
detinue can be brought. Thus, if a bailee refuses to deliver the goods after the bailment is determined,
he is liable in detinue.
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.
In such an action, the defendant has to either return the specific chattel or pay its value to the plaintiff.
An action may be distinguished from trespass. In an action for detinue, the defendant assumes the
possession of the goods whereas there could be a trespass to goods, while the same continue to be in
the possession of the plaintiff.
Detinue abolished in England:
In England, by the passing of Torts (Interference with Goods) Act, 1977, Detenue has been
abolished. However, the tort of conversion has been extended to include those situations also which
were termed as ‘detinue’. Where the goods are wrongfully detained by the defendant, the plaintiff
can still claim relief by way of order for the delivery of the goods or payment of damages equivalent
to the value of the goods and consequential damages resulting from wrongful detention.
Position of India
In India, although ‘Detenue’ as such has not been mentioned as a wrong but similar action for
recovery of specific movable property has been recognized by the Specific Relief Act, 1963. The
court sometimes term such an action as that for ‘detinue’.
Section 7 & 8 of the Specific Relief Act enable the recovery of specific movable property. In Banshi
v. Goverdhan AIR 1976 M.P. 125 the defendant having taken a cycle on hire from the plaintiff the
estimated value of the cycle, i.e. Rs. 300 under an action for detinue.
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Thus where the plaintiff’s goods are wrongfully detained by the defendant, the plaintiff can resort to
a remedy by instituting an action for ‘detinue’ for the recovery of goods or its equivalent value, and
the incidental damages, if any.
3.Conversion (Trover) Wrongful Conversion:
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. 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. i.e. it is an unlawful
interference with another’s goods thereby that person is deprived of use and possession of the goods.
Definition Salmond: “A conversion is an act of willful interference, without lawful justification,
with any chattel in a manner inconsistent with the right of another whereby that other is deprived of
the use and possession of it”.
Examples
(a)A takes B’s book with an intention to steal it. It is a conversion.
(b)A has given some jewelry to B for safe custody. B sells them. It is a conversion.
(c)A has given cloth to B tailor who sold it to C. It is a conversion.
Essentials : To constitute conversion the following essentials are to be satisfied:
1.Possession: The plaintiff has to establish that he has a right to the immediate possession of the
goods at the time of conversion e.g. a bailee can be sued for coversion.
2.Depreviation of the plaintiffs possession
The defendants intended act must amount to denial to the plaintiffs right to the goods to which he is
lawfully entitled.
Modes of conversion
An act of conversion may be committed by any of the following methods:
1.When the property is wrongfully taken: A and B are the neighbours. A’s mango tree branches with
fruits, 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.
2.Conversion by parting with goods:
Miss-delivery by a carrier amounts to conversion.
3. Conversion by sale:
A wrongful sale of goods is conversion.
Hollins v. Fowler (1875) – 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 cast 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.
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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 : When the goods are sold by the intervention of an auctioneer then if the seller has not title,
the auctioneer is liable in conversion to the owner”.
4.Conversion when the property is wrongfully detained:
Conversion may be committed by the detention of the goods. Example: where a bailee refuses to
return the chattel or goods to his bailor on demand.
Armory v. Delamire (1721) A boy found some jewelry. He took it to 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 jewelry back.
The goldsmith refused. The court held that the goldsmith committed conversion and the boy was
entitled to take it back.
5. By destroying or abandoning it in a wrongful manner.
Remedies:
(1)Recaption: A person is entitled to possession of goods of which he had been wrongfully deprived
may retake them, wherever he finds them, using reasonable force, if necessary.
(2)Order of restoration of property: It is in discretion of the court whether the order will be made
i.e. judicial remedies.
(3)Suit for damages: If the chattel has not been restored the plaintiff is entitled to its full value and
damages.
Defences in an action for conversion
(1)Lien – Either, general or particular, that is lien of a solicitor, carrier, vendor, in keepers.
(2)Execution of the legal process, e.g. warrant of attachment of the goods of a judgment-debtor.
(3)Distress Damage Feasant – Goods where taken under distress.
(4)Self defence of property: Where a person is in actual possession of the goods and some other
person wrongfully attempts to take the same from him, he is justified in defending his own possession
by use of reasonable force to resist parting with the possession of goods.

Topic 13 Malicious Prosecution or Abuse of Legal Procedure

The term ‘Malice’ in common parlance means ‘ill-will against a person’. In legal sense, it means ‘ a
wrongful act done intentionally without any just cause or excuse”. The term, prosecution means “a
proceeding in a court of law charging a person with a crime”.
Definition : “Malicious Prosecution” is the institution against an innocent person of unsuccessful
criminal proceeding without reasonable and probable cause and in a malicious spirit, that is, from an
indirect and improper motive and not in furtherance of justice, and causing damage to the plaintiff in
person, pocket or reputation. Example: A makes a false complaint against that B had committed theft
with a view to compel B to deliver some property to him (A). Here, A is liable for malicious
prosecution.

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The law authorizes persons to bring criminals to justice by instituting proceedings against them. If
this authority is misused by somebody by wrongfully setting the law in motion for improper purpose,
the law discourages the same. To prevent false accusations against innocent persons, an action for
malicious prosecution is permitted.
In malicious prosecution, a person may suffer damages in:
(i)his character and status in life may be affected, i.e. reputation.
(ii)his liberty might be adversely affected,
(iii)there may be damage to his property for unnecessary expenditure in defending himself.
Thus in criminal prosecution, a person is put to loss in different ways and consequently, he has to
undergo sufferings and mental pains without any fault on his part.
In order to succeed the plaintiff has to prove the following essentials in a suit for damages for
malicious prosecution.
1.That he was prosecuted by the defendant;
2.The prosecution was instituted without any reasonable and probable cause;
3.The defendant acted maliciously and not with a mere intention of carrying the law into effect.
4.That the proceeding ended in favour of the plaintiff, i.e. he was acquitted in the criminal case.
5.That the plaintiff suffered damage as a result of the prosecution.
1.Prosecution by the 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 an information before a magistrate accusing one of the offences mentioned in the
criminal law. Therefore, malicious prosecution concerns with criminal proceedings only. Proceeding
before judicial or tribunal amounts to a prosecution. In the same way, proceedings before the quasi-
judicial authorities also amounts to prosecution. So the plaintiff has to prove that the defendant
instituted a false criminal proceeding against him before a judicial, quasi-judicial authority or a
tribunal.
Mere filing of a complaint before the police, where such complaint is ordered to be filed in that office
only and no judicial authority is set in motion as consequence of such complaint does not amount to
prosecution.
Proceedings before a quasi-judicial authority:
In Kapoor Chand v. Jagdish Chand AIR 1974 P& H 215: the Punjab and Haryana High Court has
held that the proceeding before the Boards of Ayurvedic and Unani Systme of Medicines, Punjab
amounted to prosecution. The appellant made a false complaint with the Board of Ayurvedic and
Unani System of Medicines, Punjab alleging that the respondent, who was practicing as a Hakim,
was illiterate and had obtained fictitious certificate of Hikmat by underhand means. The Board held
that the respondent was admittedly a qualified, Hakim and authorized him to practice as such. In an
action for malicious prosecution, it was held that the respondent was entitled to claim compensation.
2.Without reasonable and probable cause:

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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 n absence of reasonable and probable cause.
Abrath v. North Eastern Railway Co. (1886): 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. M 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 them.
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 M were
artificially created by one doctor Abrath, for the purpose of claiming compensation.
The defendants sued Dr. Abrath and M. contending that both of them conspired and obtained huge
compensation by frauding the company. However, the criminal case was dismissed acquitting Dr.
Abrath and M. Dr, Abrath sued the defendants for malicious prosecution.
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. In the present case as the plaintiff failed to prove want of reasonable and probable
cause his suit could not succeed.
3.Malicious Intention
It is also for the plaintiff to prove that the defendant acted maliciously in prosecuting him, i.e. there
was malice of some indirect and illegitimate motive in the prosecutor, i.e., the primary purpose was
something other than to bring the law into effect. It means that the defendant is actuated not with the
intention of carrying the law into effect. Malice means the presence of some improper and wrongful
motive, that is to say, an intent to use the legal process in question for some other than its legally
appointed or appropriate purpose.
Apart from showing that there was absence of reasonable and probable cause, it is also to be proved
that the proceedings were initiated with a malicious spirit, that is, from an indirect and improper
motive, and not in furtherance of justice. The prosecution must have been launched with an oblique
motive only with a view to harass the plaintiff. It means a wish to injure the plaintiff rather than to
vindicate the law. So the plaintiff has to prove that there was a malicious intention on the part of the
defendant in instituting criminal proceedings against him.
In Abdul Majid v. Harbansh Chaube AIR 1974 All 129: the plaintiff was prosecuted for an offence
under Section 412, Indian Penal Code, for being in possession of a ‘hansuli’ removed in a dacoity
case. Defendant no.1 the station officer of the police station, had conspired with two other defendants
and falsely designed (planned concocting) a story against the plaintiff. the defendants falsely stated
before the court that, they had recovered the ‘Hansuli’ from the plaintiff’s house. But the benefit of
doubt was given to the plaintiff and he was acquitted by the court of law. The plaintiff filed a suit
against the defendant for malicious prosecution.
It was found that the defendants were actuated by wrong and indirect motive to prosecute the plaintiff
and that is why they had prosecuted him on the basis of a concocted story against him. The defendants
were held liable.

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4.Termination of the proceedings in favour of the plaintiff:

Further essential element of the malicious prosecution is that the proceeding 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 convicted. On appeal, if
the proceedings are terminated in favour of the plaintiff, then he can sue the defendants for damages
under malicious prosecution.
If the prosecution results in conviction at the lower court but the conviction is reversed in appeal, the
question which arises is – an action for malicious prosecution be brought in such a case?
In Reynolds v. Kennedy, (1867) – it has been held that the original conviction was a bar to an action
for malicious prosecution and subsequent reversal of conviction, on appeal was of no effect. This
position does not appear to be correct in view of the subsequent decisions. Thus, if on appeal, the
proceedings terminate in favour of the plaintiff, he has a cause of action.
5.Damage:
The plaintiff has to prove that he has suffered loss or damage or injury as a consequence of the
prosecution complained of by the defendant. So mere termination of a malicious prosecution in favour
of the plaintiff is not sufficient. The plaintiff must prove that he suffered unnecessary damage,
inconvenience, worry 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 mentally, 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 pays/spends more money on lawyers fees, and conveyance. He is also humiliated from the social
circumstances and by his near and dear. Besides these problems, he may be tortured by the police.
In a claim for malicious prosecution, the plaintiff can thus claim damages on the following three
counts’:
1.Damage to the plaintiff’s reputation;
2.Damage to the plaintiff’s person;
3.Damage to the plaintiff’s property.
A false charge of a criminal offence obviously injures the reputation. Apart from that, damage to the
person may result when a person is arrested and deprived of his liberty and also when there is mental
stress on account of prosecution. Injury to the property may also be there as a person who s prosecuted
has to spend money for his defence.
In assessing damages, the court, to some extent, will have to rely on the rules of common sense.
Over and above that, the court will have to consider:
(1)the nature of the offence which the plaintiff was charge of,
(2)the inconvenience to which the plaintiff was subjected to,
(3)Monetary loss, and

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(4)the status and position of the person prosecuted.

In Sova Rani Dutta v. Debabrata Dutta AIR 1991 Cal 186: the defendant filed a false FIR against the
plaintiff and his sister alleging theft of her earring from her person resulting in bleeding injury to her
ear. The defendant knew that the FIR was false, and the offence being cognizable, the police would
handcuff the plaintiff. It was held that the defendant was liable for malicious prosecution and the
humiliation suffered by the plaintiff due to his handcuffing. Fees paid to the advocate or vakil in
defending the accused person in prosecution can also be allowed as damages as such expenses are
considered to be a natural consequence of the prosecution.
Malicious Civil Proceedings
Unlike malicious criminal prosecution, no action can brought, as a general rule, in the case of civil
proceedings even though the same are malicious and have been brought without any reasonable cause.
Since an unsuccessful plaintiff in any civil proceedings has generally to bear the cost of litigation,
that is considered to be sufficient deterrent factor which may discourage false civil proceedings.
In exceptional cases, however, where the cost of litigation may not adequately compensate the
defendant, he can sue to recover damages for the loss arising out of such civil proceedings. The
examples of such proceedings are insolvency proceedings against a businessman, or winding up
proceedings against a trading company, or the proceedings which result in arrest or execution against
the defendants property, or attachment of his property.
So suit for malicious civil proceedings will lie if there is damage to credit or reputation, or arrest of
person or seizure of property or where damage resulting from civil action cannot be compensated by
an order for cost. (arrest of plaintiff and insolvency proceeding).
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Topic 12 Nuisance
Nuisance : Meaning and Definition
The word ‘nuisance’ ‘means to do hurt or to annoy’. It is an act or omission, interfering with right
of another to enjoy some property, causing damage or physical discomfort. E.g. Digging a trench on
highway, listening to radio in loud noise causing discomfort to neighbours.
According to Salmond, the wrong of nuisance consists in causing or allowing without lawful
justification, the escape of any deleterious thing from his land or from elsewhere into land in
possession of plaintiff.
According to Prof. Winfield, a nuisance may be described as “unlawful interference with a person’s
use or enjoyment of land or some right over, or in connection with it.”
Acts interfering with comfort, health or safety are the examples of it. Examples High volume of music
system 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. so the interference may
be any way e.g. noise, vibrations, heat, smoke, smell, fumes, water, gas, electricity, excavation or
disease producing germs.
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.

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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 2 kinds: Public nuisance and private nuisance.
Nuisance should be distinguished from trespass. Trespass is (i)a direct physical interference, (ii)with
the plaintiff’s possession of land, (iii) through some material or tangible object. Both nuisance and
trespass are similar in so far as in either case the plaintiff has to show his possession of land. The two
may even coincide, some kinds of nuisance being also continuing trespasses.
The points of distinction between the two are as follows:
1.Nuisance is an indirect interference with the plaintiff’s property.
Trespass is a direct interference with the plaintiff’s property. Example planting a tree on another’s
land is trespass. But when a person plants a tree over his own land and the roots or branches spread
into or over the land of another person, that is nuisance.
2.Trespass is interference with a person’s possession of land. In nuisance, there is interference with a
person’s use or enjoyment of land. Such interference with the use or enjoyment could be there without
any interference with the possession. For example, a person by creating offensive smell or noise on
his own land could cause nuisance to his neighbor.
3.Moreover, in trespass, interference is always through some material or tangible objects. Nuisance
can be committed through the medium of intangible objects also like vibrations, gas, noise, smell,
electricity or smoke.
4.Apart from that, a trespass is actionable per se, but in an action for nuisance, special damage has
got to be proved.
Example a running of rice mill causing vibration in compound wall of plaintiff is an actionable
nuisance. The discomfort must be sensible and material. Noise may be caused by various means e.g.
by ringing bells, by playing musical instruments, by use of microphone, by noisy entertainment, by
beating drums, by dancing on the upper floor, by loud cries by hawkers.
Kinds of Nuisance
Nuisance is of two kinds:
(i)Public Nuisance & (ii) Private Nuisance or Tort of Nuisance
Public Nuisance:
Public nuisance is a crime whereas private nuisance is a civil wrong. Public nuisance is interference
with the right of public in general and is punishable as an offence. Under section 268 of IPC pubic
nuisance is a crime.
Section 268 defines public nuisance as “A person is guilty of public nuisance who does any act, or is
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 have occasion to use any public right”.
Although such obstruction may cause inconvenience to many persons but none can be allowed to
bring a civil action for that, otherwise there may be hundreds of actions for a single act of public
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nuisance. To avoid multiplicity of suits, the law makes public nuisance only an offence punishable
under criminal law.
In certain cases, when any person suffers some special or particular damage, different from what is
inflicted upon public as a whole, a civil right of action is available to the person injured. What is
otherwise a public nuisance, also becomes a private nuisance so far as the person suffering special
damage is concerned. The expression ‘special damage’ in this context means damaged caused to a
party in contradiction to the public at large.
For example, digging trench on a public highway may cause inconvenience to the public at large. No
member of the public, who is thus, obstructed or has to take a diversion along with others, can sue
under civil law. But if any one of them suffers more damage than suffered by the public at large, e.g.
is severely injured by falling into the trench, he can sue in tort. In order to sustain civil action in
respect of a public nuisance, proof of special and particular damage is essential. Accumulating the
stones, sand in the streets is also an example of public nuisance.
Essentials of public nuisance:
1.Public nuisance is a crime as it is an interference with the rights of public in general. The state is
entrusted with the liability to arrest and produce the accused before the courts and get him punished.
2.Circumstances under which a private person can have a right of action in respect of public nuisance:
In a public nuisance inconvenience is caused to public, in general. The general principle of the law
says that a single person or group of persons are not entitled to sue the defendant. 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 damaged occurred to him.
Dr. Ram Raj Singh v. Babulal AIR 1982 All 285: The plaintiff was a doctor, and maintaining a clinic
in his own residence in a residential colony. The defendant created/erected a brick grinding machine
besides the plaintiff’s house. The brick grinding machine generated dust, which polluted the
atmosphere i.e. nearby houses. The dust entered the consulting chamber of the plaintiff and caused
physical inconvenience to him and patients, and their red coating on clothes, caused by the dust, could
be apparently visible. 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. It was held that special damages to the plaintiff had been proved and a
permanent injunction was issued against the defendant restraining him from running his brick
grinding machine there.
3.Environmental law:
The Law of Public Nuisance occupied a prominent place in environmental law. Due to
industrialization, urbanization and heavy population growth, environmental pollution is occurring in
many way 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 human rights, and opined that “Right to Life” in Article 21 includes to live with healthy
surroundings/atmosphere/circumstances without pollution. It gave judgments in Ganga Pollution
case, TajMahal Pollution case, etc against the public nuisance.
4.By a public nuisance, the rights which are common to all subjects are infringed. Such rights are un-
connected in any way with possession or title to immovable property.

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If the plaintiff cannot prove that he has suffered any special damage, i.e. more damage than suffered
by the other members of the public, he cannot claim any compensation for the same. This may be
explained by referring to Winter bottom v. Lord Derby (1857). In this case the defendants agent
blocked a public footway. The plaintiff brought an action alleging that sometimes he had to go by
another route and sometimes he had to incur some expenses in removing the obstruction. Held, he
could not recover as he had not suffered more damage than could have been suffered by other
members of the public.
Who can sue for public nuisance?
Public nuisance is a crime under section 268 IPC and every affected person cannot sue. However, the
following persons can sue:
1.Attorney General in England.
2.Advocate General in Presidency towns and collectors in the places other than presidency towns.
3.An individual also can sue, provided he suffers special damages and
4.Two or more persons can sue without proof of special damage by obtaining a consent in writing
from Advocate General. Under section 91 Cr. P.C.
Under section 133 of Criminal Procedure Code, 1973, empowers District Magistrate or Executive
Magistrates, to make conditional order requiring the person causing such public nuisance to remove
such nuisance.
Besides, the local bodies and Municipal Corporation, etc also have a legal right to remove the cause
of public nuisance and if they deny or fail to exercise this authority without any valid reason, a writ
can be filed against them under Article 226 of the Constitution of India. In short, public nuisance is
an offence affecting the community at large, therefore it is dealt with by the state and is the ground
of criminal prosecution, and does not necessarily create a civil cause of action for any person except
under above mentioned paragraph or circumstances.
The following are the instances of public nuisance:
(i)unlawful obstruction of highways to any public place, river, or channel which is used by public,
(ii)keep of any goods injurious to public health or physical comfort by doing any trade or business.
(iii) any building, tent or structure or any tree is in such a condition that it is likely to fall and thereby
cause injury to persons.
(iv)any tank, well or excavation adjacent to any such way or public place not fenced likely to cause
damage to public,
(v)any dangerous animal not properly confined.
Private Nuisance
If the nuisance (unauthorized user of one’s own property) causes injury or damage to an individual
or a group of individuals, it is called ‘Private Nuisance’.
A private nuisance is, on the other hand, an injury to the private rights of a person and to the
comfortable occupation of his property.

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Winfield defines Private nuisances as an unlawful interference with person’s use or enjoyment of
lands, or some right over, or in connection with it.
Thus we may define private nuisance as follows: A private nuisance is some unauthorized user of a
man’s own property causing damage to property of another or some unauthorized interference with
the property of another causing damage.” So when the act of nuisance affects some particular
individual or individuals as distinguished from the public at large, it is a private nuisance.
Essentials
1. Private nuisance is a civil wrong. The state does not take initiative steps to punish the wrong-doer.
The aggrieved party himself has to file the case before the court to punish the defendant.
2. Unreasonable interference
Every harm to a person’s property or interference with his personal comfort or health does not
constitutes a nuisance. To constitute nuisance the interference should be unreasonable. Every person
has to bear with some noise, some vibrations, some smell etc. in the society so that other’s can enjoy
their won rights. It is only such noise which is unreasonable that becomes unlawful. No action can
brought unless the nuisance is unreasonable.
If I have a house by the side of the road, I cannot bring an action for the inconvenience which is
necessarily incidental to the traffic on the road. Nor can I sue my neighbour if his listening to music
interferes with my studies. So long as the interference is not unreasonable, no action can be brought.
A balance has to be maintained between the right of the occupier to do what he likes with his own,
and the right of his neighbour not to be interfered with”.
The question is what nuisance is unreasonable? It is a difficult question which in every case depends
upon place, circumstances time and the manner of doing nuisance. It is also to be examined whether
the nuisance was permanent or temporary, or continuing or fleeting. If in the above circumstances the
nuisance is not reasonable, action may be brought against it.
For 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.
Hollywood Silver Fox Farm Ltd v. Emmett (1936) – in this case, the plaintiff set up a farm for
breeding foxes and erected a sign board saying “Hollywood Silver Fox Farm”. His neighbour
(defendant) wanted to develop a housing estate on the land and requested the plaintiff to remove the
board as it would deter his customers. But the plaintiff refused to remove the board. The defendant
warned the plaintiff to shoot along the boundary if the board is not removed.
The defendant did accordingly and caused damage to plaintiff’s animals, which are extremely nervous
and do not breed at loud noise and may miscarry or kill their own young ones. In an action against
the defendant, the plaintiff was entitled to get injunction and damages on the ground that ‘no person
can create noise on his own land causing annoyance to others”.
St. Helan’s Smelting Co. v. Tipping (1865) : was a landmark case on nuisance involving impact of
industrial pollution on local inhabitants. In this case, the fumes emitted from the defendant’s company
caused damage to the plaintiff’s trees and shrubs. Such damage being an injury (damage) to property,
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it was held that the defendants were liable for private nuisance. The court held that the possessor or
occupier of land is entitled to an injunction and he is also entitled to compensation to for the
diminution in the utility of his land.
3. Interference with the use or enjoyment of land:
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.
Interference may cause either (i)injury to the property itself, or (ii)injury to comfort or health of
occupants of certain property.
(i) Injury to property:
In this kind of tort some damage is done to the property of the plaintiff by something which is situate
on the land of the defendant. An unauthorized interference with the use of the property of another
person through some object, tangible or intangible, which causes damage to the property, is actionable
as nuisance. It may be by allowing the branches of a tree to overhang on the land of another person,
or the escape of the roots of a tree, water, gas, smoke, or fumes, etc. on the neighbours land or even
by vibrations. For example the defendants sets up vibrations which cause the building of the building
of the plaintiff to collapse, or if the fumes emitted from his factory destroy vegetation of the plaintiff
he might be committing an actionable private nuisance.
(ii) Injury to comfort or health:
In the case of physical discomfort, the act complained must be:
(a) in excess of the natural and ordinary course of enjoyment of property, that is to say, the
interference must be with the enjoyment or use of land.
(b) materially interfering with the ordinary comfort of human existences.
Substantial interference with the comfort and convenience is using the premises is actionable as a
nuisance. A mere trifling or fanciful inconvenience is not enough. The rule is De minimis non curat
lex, that means that the law does not take account of every trifling matters. There should be ‘a serious
inconvenience and interference with the comfort of the occupiers of the dwelling house.
In Sheikh Ismail Sahib v. Veinkatessue, AIR 1936 Mad 905: The house of the plaintiff and
defendant were situated adjacent to each other. The defendant set a part of portion of his house for
charitable purposes. He allowed persons free of rent to use it temporarily for performing marriage
ceremonies and pujas etc. Loud voice was produced there during the ceremonies and noise continued
to be made long after the hour when people ordinarily go to sleep. It was held that this action of the
defendant amounted to nuisance and he was restrained from so using his house.
4.Damage
Unlike trespass, which is actionable per se, actual damage is required to be proved in an action for
nuisance. In the case of public nuisance, the plaintiff can bring an action in tort only when he proves
a special damage to him. In private nuisance although damage is one of the essentials, the law will
often presume it. So in nuisance specific damage must be shown. But in certain cases where the
nuisance concerns something other than physical damage to property, damages will sometimes be
presumed.

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Thompson Schwab v. Costake (1956): In this case a house-holder residing in a respectful residential
street, complained that two women were in the habit of picking up men in neighbouring streets and
bringing them to the house for the purposes of prostitution. The house where such business of
prostitution was taking place was very next door to the house holder. It was held by the court that
such activities could constitute actionable nuisance i.e. private nuisance.
Distinction between Public nuisance and Private nuisance:
1. Private nuisance is a crime (Section 268 IPC). Private nuisance is a civil wrong.
Example of public nuisance brothel keeping, obstructing public highways, selling impure foods, etc.
2. A public nuisance affects the public at large or some considerable portion thereof. It is violation of
public right, and offence against public, their safety etc.
On the other hand private nuisance affects only one person or a group of persons. In this way private
nuisance is a violation of private right of a person to the comfortable occupation of property i.e. it is
an unlawful interference with one’s right to enjoy his land or property.
3.Public nuisance does not create civil cause of action for any person. In other word, a private
individual cannot take an action on his own name in respect of public nuisance. But in exceptional
circumstances a person may bring an action if ‘special damage or injury’ is caused to the plaintiff. in
case of Environmental pollutions-cum public nuisance, any person can sue the polluter (Article 21
Right to life includes right to live in healthy surroundings.
On the other hand in private nuisance it is actionable at the suit of any person who is in possession of
the land and injured thereby.
So in private nuisance the person whose comfortable enjoyment of properties is disturbed may file a
suit in a civil court for damages or for injunction. The commission of a public nuisance is not tortuous
unless an individual proves that he has suffered particular damage beyond that suffered by the rest of
the community.
4.A private nuisance may become legal by prescription i.e., continuous and unobstructed existence
for 20 years. On the contrary a public nuisance cannot be legalized after any length of time and so a
man who keeps a game house for gamblers for 20 or for any larger number of years cannot acquire
any right for keeping it. At any time the work may be stopped by the government authorities.
5. Remedies available
An action for damages lies in respect of a private nuisance, but not in respect of a public nuisance,
unless the plaintiff has sustained special damages. In case of a public nuisance, the action generally
is for declaration and injunction.
6. Abatement
A public nuisance cannot be abated by the person affected. While a private nuisance may be abated
by the person injuriously affected thereby (except to the extent to which it causes some special
damage to the person who desires to abate it.).
7.In private nuisance the plaintiff must prove interference with his enjoyment of land, whereas claims
based on public nuisance are not necessarily linked with user of land.
8.Both civil and criminal actions can be instituted for public nuisance.

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9.As it is state’s duty, the responsibility lies upon the state to prove the interference of defendant.
The plaintiff must prove interference with his enjoyment of land.
10.Public nuisance is regarded as criminal offence in India. Section 268 of IPC provides for the
punishment of the public nuisance. Such as spreading of infection, fouling water, making atmosphere
noxious to health, adulteration of food, drinks and drugs and so on. Section 133 to 140 of Cr. P.C.
makes provisions for removal of public nuisance. Under section 91 of the Cr.P.C. the Advocate
General or two or more person of the public having obtained the consent in writing of the Advocate
General may institute a suit, though no special damage has been caused to them, for a declaration and
injunction or for such other relief as may be appropriate in the circumstance of the case.
Defences
A defendant in an action for nuisance may take up the following defences:
1.Grant:
It is a valid defence to an action for nuisance that the said nuisance is under the terms of a grant.
2.Prescription – Prescriptive right to commit nuisance
A right to do an act, which would otherwise be a nuisance, may be acquired by prescription. If a
person has continued with an activity on the land of another person for 20 years or more he acquires
a legal right by prescription, to continue therewith in future also. A right to commit a private nuisance
may be acquired as an easement if the same has been peaceably and openly enjoyed an easement and
as of right, without interruption, and for 20 years. On the expiration of this period of 20 years, the
nuisance becomes legalized ab initio as if it has been authorized by a grant of the servient land from
the beginning. The period of 20 years cannot commence to run until the act complained of begins to
be a nuisance.
Thus if a person continues an activity on the land of another for a period of more than 20 years he
acquires a legal right by prescription and is not subject to the liability for nuisance. Prescription i.e.
long and continuous use legalizes an act, which would constitute a nuisance. The period of 20 years
is to be counted from the day when the plaintiff comes to know the existence of nuisance.
So it must be borne in mind that it is not sufficient for the defendant to prove that the act which now
causes the nuisance has been continued for 20 years. It should be proved that it has been a nuisance
for the period of 20 years.
Thus in Sturges v. Bridgman the defendant has been using a heaving machinery in his business as a
confectioner for more than 20 years and made certain noise in his land. The plaintiff build his
consulting room at the end of his garden near to the source of the noise a short time before the action.
The defendant pleaded prescription but it was untenable because nuisance began only when the
consulting room was built and not before, although he had used the machine for 20 years. If the
particular use is prohibited by the statute no prescriptive right can be acquired.
3.Statutory Authority
If the interference is authorized 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 residents besides 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

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good defence. However, it must be reasonable and base upon the public policy and for public good.
So a suit for nuisance is not maintainable if the defendant’s act is authorized by law or statute.
Dyer v. Mansfield (1946) The defendant was a licensed vendor of fruits and vegetables. During the
scarcity of potatoes, he was issuing only ½ of potatoes per ration book. Queues of customers extended
in the highway in front of neighbouring shops. In an action by the plaintiffs (neighbouring
shopkeepers) it was held not actionable.
Other defences: There is no liability if the nuisance is caused by the act of God, or inevitable accident
or the act of a stranger about whose act the defendant has no knowledge and is not negligent in not
knowing of it.
Remedies
In a tort of nuisance following remedies are available to the persons wronged:
Remedies for Public Nuisance:
1. Under criminal law as per section 268 of the IPC public nuisance is a crime and the person
committing may be punished.
2. Under civil law as per section 91 of CPC in the case of a public nuisance the Advocate General, or
two or more person having obtained, the consent in writing of the Advocate General may institute a
suit though no special damage has been caused, for a declaration and injunction or for such other
relief as may be appropriate in the circumstances of the case.
Remedies for Private Nuisance:
1.Abatement
Abatement means the removal of a nuisance by the party injured. The removal must be peaceable and
without danger to life or limb; and if it is necessary to enter another’s land or property, prior notice
should be given. For instance, where the branches of tree from the land of the neighbour are stretching
on a person’s land, he can cut them off or remove them himself by giving a reasonable notice to the
neighbour and without using unreasonable force. But this act should be done peacefully without
causing any risk of life or property of the neighbour.
2.Damages
The second remedy for nuisance is damages. The person complaining of a nuisance may file a suit
for damages. As nuisance is concerned with interference with use of land, damages are measure in
the light of depreciation in value of land caused by the defendants act.
Where for instance a house is destroyed or damaged, then the measure of damages is the difference
between the monetary value of the interest of the plaintiff before and after the event. Where business
loss is suffered this is compensated for in nuisance. The measure of damages is always the pecuniary
value of that which the plaintiff has been deprived of by the nuisance whether it be business profit,
land value, damages to crop or the like.
3.Injunction
A person complaining of a nuisance may sue for restraining the defendant from using his property in
such a way as not to cause nuisance. The plaintiff may seek both damages and injunction. An
injunction may be issued in a case of nuisance where although harm is reasonably feared to be
eminent, no actual harm has yet occurred.
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It must be borne in mind that an action in tort founded upon nuisance, the plaintiff need not prove the
intent or negligence of the defendant as a separate ingredient in the cause of action. Nor is the want
of intent or negligence by itself a defence.
The Allahabad High Court has held that if in a noisy locality, substantial addition to the noise is
introduced at the defendant’s premises by some machines in a flour mill, which materially affects the
physical comfort of the plaintiff a permanent injunction against the defendant can be granted by the
court. (Radhey Sham v. Gur Prasad Sharma AIR 1978 All 86).
Continuing Nuisance
Where the nuisance is a of a continuing nature, that is the damage caused by it continues unabated,
the cause of action would be deemed to have accrued every day for the purpose of limitation until it
is removed.
Public nuisance case: Soltau v. De Held AIR 1978 All 86: In this case, the plaintiff resided in a
house next to a Roman Catholic Chapel of which the defendant was the priest and the Chapel bell
was rung at all hours of the day and night. The plaintiff was disturbed and file the suit for injunction.
It was held, that it was a public nuisance and in as much as it proved particularly obnoxious to the
plaintiff, and satisfied the requirements for a suit by a private person for public nuisance, it become,
so far as the plaintiff was concerned, a private nuisance, and the plaintiff was held entitled to an
injunction.
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