024E130

025E140
1 - 20

ANNAMALAI UNIVERSITY
DIRECTORATE OF DISTANCE EDUCATION

LL.B (Academic)
&
LL.B (General)
First Year

LAW OF TORTS
LESSONS : 1 – 20

Copyright Reserved
(For Private Circulation Only)
 LL.B (Academic)
&
LL.B (General)
First Year
LAW OF TORTS
Editorial Board

Members

Mr. J. Thulasiraman
Head, Law Wing
Directorate of Distance Education
Annamalai University
Annamalainagar.

Mr. V. Sivarama Sethu

Assistant Professor
Law Wing
Directorate of Distance Education
Annamalai University
Annamalainagar.

Mr. V. S. Sampath
Assistant Professor
Law Wing
Directorate of Distance Education
Annamalai University
Annamalainagar.
 LL.B (Academic) & LL.B (General)
First Year
LAW OF TORTS
SYLLABUS
1. General principles; origin and Development of Torts. Definitions of Torts
Distinction between Tort and crime Tort and Contract - Tort and Breach of
Trust -Foundation of tortious liability. Fault as a condition of liability –
Essential conditions of liability in tort – Duty of care. Damnum sine Injuria-
Injuria sine damno. Relevance of malice – The impact of insurance or tort –
Liability – individual and collective.
2. General defences: Volenti non-fit Injuria - Inevitable accident - Necessity - Private
defence - Mistake-Statutory authority-Act of God
3. Parties and their capacity: The State and its subordinate officers of State-
Minors-Lunatics and drunkards - Married women - Corporation –
unincorporated bodies - Foreign sovereigns and ambassadors.
4. Master and servant – Servant and independent contractor - Course of
employment and common employment – Master’s duties to servant and vice
versa.
5. Joint tort feasor.
6. Remedies
7. Remoteness of damage – Novus acuts interveniens
8. Successive actions of the same facts – Effect of merger and death.
9. Specific Torts
a) Wrongs to person and reputation – Death, assault, battery, false
imprisonment, nervous shock – defamation.
b) Wrongs to property – to land, chattels.
c) Negligence including contributory negligence.
d) Nuisance – Nuisance and injury to servitudes – Highways etc.
e) Strict or absolute liability – Liability for dangerous chattels Animals land and
structure or premises.
f) Conspiracy, interference with freedom of contract and business relationship
– Injurious falsehood slander of title or of goods, passing off abuse of legal
procedure.
g) Foreign torts – Miscellaneous and doubtful torts – Invasion of privacy.
h) Discharge of Torts.
Books Recommended
1. Winfield – Law of Torts.
2. Salmond – Law of Torts.
3. Ramaswamy Iyer – Law of Torts
4. Achuthan pillai. Principles of the Law of Torts.
 ii

LL.B (Academic) & LL.B (General)

First Year
LAW OF TORTS
CONTENTS
Lesson Page
Title
No. No.

1. Principles of Tort 1

2. Foundation of Tortious Liability 5

3. General Defences 12

4. VIS Major-Act of God (General Defence - Contd.) 19

5. Capacity 25

6. Capacity (Contd.) 31

7. Vicarious Liability 39

8. Vicarious Liability (Contd.) 45

9. Joint Tort Feasors 52

10. Remoteness of Damage 60

11. Effect of Death 72

12. Specific Torts 76

13. Defamation 84

14. Wrong to Property 96

15. Negligence 104

16. Negligence (Contd.) 110

17. Nuisance and Injury to Servitudes 115

18. The Rule in Rylands V. Fletcher 122

19. Conspiracy 139

20. Foreign Tort 152

 1
LESSON - 1

PRINCIPLES OF TORT

1.1 Introduction
1.2 Theories of Tort
1.3 Tort and Contract
1.4 Tort and Implied Contract
1.5 Tort and Quasi Contract
1.6 Tort and Crime
1.7 Tort and Brech of Trust
1.8 Tort and Bailment
1.9 Suggested Question
1.1 introduction
From the beginning when the Law of Tort was administered in England by issue
of royal writs from the chancery till late 19th century no rule of this branch was ever
codified in any statute. To bring an action for any tort in the king’s Common Law
Courts, the plaintiff had to obtain the King’s royal writ. This is an order issued to the
defendant to appear before the court and answer the complaint. The writs were
limited and were issued only if the complaint came within any one of the two kinds
of writs issued by the chancery. One was a writ of trespass and the other was the
writ of case. These writs were issued to redress any injury direct or indirect to one’s
person, land or goods. While a writ of trespass depended on the wilful or intentional
acts of the defendant, a writ of case depended on the damage caused to the plaintiff.
Whether an action is a tort was decided by the Judges and the entire law of tort was
the rules laid down in various judgements.
As the action for a tort became complicated and wide. It was felt that suitors
were prevented from bringing in actions, as many, a complaint did not conform to
any one of the writs. It was decided by the Common Law Procedure Act, 1852 that
the complainant need not show any form or cause of action to bring an action for
tort.
Due to advanced socio-economic conditions and complexity or commerce and
conduct of one person towards another, the judge-made rules of tort were found
inadequate to meet every situation. New kinds of torts like defamation, negligence,
nuisance, road and air accidents were never provided for under the writs. The need
for going beyond the rules defined under various judgements was felt and the courts
started administering the law of tort outside recognised writs. With the publication
of the first treatise on tort by Addison in 1860, the Law of Tort became a defined
branch of English Law. Many of the torts were enacted in various statutes like
Workmen’s Compensation Act, Motor Vehicles Act, Factories Act. In England and in
the United States of America, actions on torts are on the increase, while in India, the
majority of the population are unaware of their right of redress and many a tort go
unnoticed or ignored.
 2
In India, the law of tort was administered as per the rules laid down in the
English laws. Many enactment were passed in India embodying the rules of tort.
Fatal Accidents Act, 1855, Carriers Act, 1865. Eastments Act, 1882, Patents and
Designs Act, 1911, Workmen’s Compensation Act, 1923, Sale of Goods Act, 1930,
Employers Liability Act, 1938. Specific Relief Act, 1963, Motor Vehicles Act are some
of them.
1.2 Theories of tort
According to Salmond, a tort is a civil wrong for which the remedy is a common
law action for unliquidated damages and which is not exclusively the breach of
contract or the breach of a trust or other merely equitable obligations. Salmond
formulated the theory known as Pigeon Hole Theory. According to him, there are
only specific number of torts and all infringements complained of must conform to
any one of them. He proposed that beyond these specified torts, action shall not lie
to any other injury or infringement.
To Professor P.H. Winfield, a tortious liability arises from the breach of a duty
primarily fixed by law such duty is towards person generally and its breach is
redressible by an action for unliquidated damages. To Winfield, a tort is committed
once a breach of a duty has taken place whether by a wilful act or otherwise.
According to Fraser, every individual has various rights in rem. When an
individual suffers any injury by breach of such a right giving that person a right to
claim compensation, then a tort is committed. Like Winfield, Fraser also omits to
mention whether the breach or injury caused must be of a wilful act or not.
Taking into consideration the various theories propounded by eminent Jurists,
one has to conclude that the law of tort provides a remedy to a person who had
suffered injury or damage by infringement of his rights by another person and the
wrong doer must compensate the injured for the breach caused.
1.3 Tort and contract
In a contract, there is a privity of contract between the parties whereas, in tort,
there is no such privity. The parties may be total strangers. A contract emerges
when parties to it consent on certain terms and conditions and an infringement of
any one of the terms and conditions will give rise to an action for breach of contracts.
A tort is an infringement of universal rights of a person and as said before, the
parties may be total strangers. In a contract, the duty imposed is not to infringe the
rights created by consent of parties, while in tort, the duty imposed is not to infringe
a person’s universal rights.
An action on a contract arises out of a breach of a right in personam while, in
tort, it is violation of a right in rem. A right of action for damages which does not
arise out of a breach of contract is a tort. A breach of contract arises irrespective of
the motive behind such violation. In a tort, the wrong doer is released from his
liability if the breach was committed with a good motive or where wrong doer acted
under coercion or the act was to prevent a greater evil.
For a breach of contract, the remedy is an action for specific performance,
restitution. Damages may be claimed only as an alternate or additional remedy. An
action under tort is for unliquidated damages and any other remedy is only secondary.
 3
A breach of contract gives the affected person the right to claim liquidated
damages while a tort-feasor will be liable for unliquidated damages.
1.4 Tort and Implied contract
Without imposing written duties, persons by their conduct may create as between
themselves, implied contracts. A person taking lodging in a hotel, a passenger
travelling in a train, bus or an aeroplane cast upon themselves an implied contract.
The lodger has a duty to pay for his lodging and boarding and a traveller to pay for
his travel. An implied duty is imposed between a Doctor and his Patient, between a
Lawyer and his Client. A person aggrieved by infringement of such an implied duty
can use on the implied contract and need not take an action for a tort.
1.5 Tort and Quasi Contract
A person who gains an advantage to which he is not entitled for must compensate
the person who would have made such a gain but for the action of the other party. In
such a situation. A quasi contract is presumed by law and the person who had
obtained the advantage is called upon a compensate the loser. A person selling
goods not his own but in his lawful custody is said to commit a breach of a quasi
contract and is held liable to compensate the true owner. To Winfield a liability not
exclusively referred under any branch of law but which impose upon a particular
person to pay a sum of money to another person on the ground of unjust benefit
must be termed as a quasi contractual liability.
1.6 Tort and Crime
1. A crime is a violation of a public right while a tort is the violation of universal
right. Every person is imposed with duties towards the whole community.
When the corresponding rights of the community are violated, a crime is
said to be committed. The law gives each private individual civil rights.
When the corresponding duty is infringed thereby causing damage to a
private individual it is termed as a tort.
2. When a crime is committed, the State prosecutes the wrong doer with a
few exception where for certain crimes, a private individual can make a
complaint to the court. For a tort, it is always a civil suit commenced by
the injured person.
3. A criminal is punished whereas a tort-feasor is made to pay compensation
to the injured so that either the damage caused is removed or is
compensated. A criminal is punished so that it will be determent to others
from committing a crime. When a criminal is punished, the abuse caused
on the public is retributed and the person punished is given an opportunity
to reform.
A tort may also be a crime and in the same way a crime though committed on
the public rights may give rise to a cause of action for a private individual in a tort.
An injury caused by one persons to another person or another person’s property
may make him liable in tort while he may also be punished for a crime.
1.7 Tort and Breach of Trust
Under the English system, a tort was a part of the Common Law while trusts
belonged to Chancery Law. A tort gives rise to a right to claim unliquidated damages.
 4
In an action for breach of trust the remedy was for a liquidated sum as damages to
the trust property.
1.8 Tort and Bailment
Bailment arises when goods are delivered to the Bailor on expressed or implied
condition that the goods shall be redelivered to the Bailee as soon as the purpose of
bailment was over. If the Bailor uses the goods for purposes other than for which
they were bailed the Bailor will be liable in a civil action. If the Bailor damages the
goods due to negligence he may be liable to in tort also. A liability under bailment
arises out of a contract while a tort may arise by a breach of a contract or in cases
where no contract or agreement exists between the parties.
Though a tort arises out of a civil injury all civil injures may not amount to tort.
A public nuisance committed may not amount to a tort unless such nuisance
infringes a person’s private rights. A writ of Mandamus is an action to rectify a breach
of a statutory duty. Since this is a special remedy it will not amount to an action in
tort. The basis for this is that such an action does not include a right for unliquidated
damages which is an essential ingredient of an action for tort.
Wright, while traversing through the law of torts states that “In these days the
form of remedy is hardly an appropriate way to define substantive rights and
liabilities. The province of tort is to allocate responsibility for injurious conduct’.
To Lord Denning ‘Compensation is not the only purpose of the law of tort ; there
are four possible basis of the action of damages in tort-appeasement justice (i.e., the
moral principle that one who by his fault has caused damage ought as a matter of
justice to make compensation) deterrence and compensation-and each of these will
be found to receive different emphasis according to the particular branch of the law
under consideration. No one theory adequately explains the whole of the Law’.
Pratt C.J. once stated that ‘Torts are infinitely various not limited or confined’.
To emphasise the flexibility of the law of torts no statement is adequate than
that of Barrowolongh C.J. “The well-known torts do not have their origin in any all
embracing general principle or tortious liability.
To conclude this chapter we may simplify the law of tort as one which determines
when to grant redress for damages suffered and when not to grant such redress
though damages was suffered.
1.9 Suggested Questions
1. Define ‘Tort’ bringing out all the essential ingredents’ of a tort lists illustration.
2. Tort is a Special branch of law which orginated in England. Discuss with special
reference to breach of contract and income.
 5
LESSON - 2

FOUNDATION OF TORTIOUS LIABILITY

2.1 Introduction
2.2 Ommission and Duty care
2.3 Damnum sine Injuria
2.4 Injuria sine Damnu
2.5 Mensrea
2.6 Malice
2.7 Intention
2.8 Negligence
2.9 Ubi Jus Ibi Remedium
2.10 Impact on Insurance
2.11 Suggested Questions
2.1 Introduction
As I had stated in the previous lesson a tortious liability in based on the damages
or injury caused to a person or to a person’s property or goods by the violation of a
legal rights and which does not amount to a breach of contract or a breach of trust
and which is redressible by an action for unliquidated damages. It is immaterial
whether the injury or damage was caused by the wilful act or omission of the tort-
feasor. The damage or injury which is actionable in tort is one which is caused by
the breach of a duty a person owed another the corresponding rights in a person
should be recognised by law. All that is essential is that an injury or damage was
caused by violation of a legal right when justice requires that the victim should be
compensated. This principle is based on natural justice equity and good conscience.
Rights are divided as public rights and private rights. If you read through various
statues you will find that the rights of a person has are embodied in them. For
instance in the constitution of India one will find what are known as fundamental
rights. Various rights like right to life and safety, right to property, right of expression,
right for employment and business, right for free worship, right to equal protection
of law and many more are found. Likewise, many statutes have been enacted where
in you will find that various private rights are established and recognised. When a
private right of a person is violated, a tort is said to be committed. The private rights
can be classified as follows.
1. right to life and liberty and security against bodily injury.
2. right to immovable and movable property and to enjoy and deal with such
property without restrictions.
3. right of reputation
4. right to domestic and contractual freedom
5. easetment rights.
 6

Public rights are those rights that are available to all the people of the community.
For example, the right to use public roads or public water tanks and streams, right
to use public parks and play grounds, right to use public cremation or burial grounds,
right to use public transport systems and so on. The law of tort provides relief for
injury caused by violation of public and private rights. A tort may be founded on the
wilful act of a person or an omission to do an act he is bound to do and the law of tort
provides relief to the victim.
2.2 Omission and Duty of Care
An omission to do a thing becomes tortious when the person restrains from
doing a thing which he is legally bound to do in law or is expected to do in the
circumstances of the case. If you read newspapers, you will often find large amounts
are awarded as compensation in cases where persons are injured due to poisonous
effluents escaping from factories. When the effluents are harmful, the industries
have a legal duty to prevent their escape from their premises. When they omit to
preserve them or make them harmless and if the escape of such effluents causes
injury to persons, such industries will be liable in tort. Yet another example is injuries
caused due to substandard drugs. The manufacturers have a duty to produce and
market the drugs according to the statutory standard prescribed. If due to their
omission to verify their standard, any person is injured by such substandard drugs,
the manufacturer will be liable on tort. I think that no example is needed, to explain
a tort arising out of a wilful act. Defamation, wilful trespass, malicious prosecution,
are some of the torts arising out of wilful acts.
In the case of Glasgow Corporation Vs. Taylor, the Corporation of Glasgow was
held liable in tort for omitting to warn children about poisonous berries growing in
their botanical gardens. Taylor was successful in bringing an action for the death of
his son who had eaten the poisonous berries.
Donogue Vs. Stevenson (1932 AC 562)
This is a leading case in respect of strict liability in tort. Ginger beer was bottled
in dark glass. A person purchased a bottle of ginger beer from a retailer. The
decomposed remains of a snail had found its way into the bottle. The lady who was
offered the beer in glass had not noticed the decomposed remains of the snail. After
drinking a part of it, he noticed the snail and became very ill. When she sued the
manufacturer of the beer, it was defended on the ground that there was no contract
between the manufacturer and the plaintiff, and that the defendant owed no duty to
the plaintiff to exercise care. The House of Lords negatived the defence and held that
the injured lady is entitled to compensation in tort. Lord Arkin observed that ‘you
must take reasonable care to avoid acts and omissions which you can reasonably
foresee would be likely to injure your neighbour’. Thus it was established that an
omission to make reasonable care will sustain a claim in tort. This principle was
followed in the case of Grant Vs. Australian Knitting Mills Ltd.
Rylands Vs. Fletcher
This is another case which established the principle of strict liability. The
contractors employed by Rylands constructed a reservoir on the lands belonging to
him. While the construction was being carried out, the contractors came upon some
 7
shafts and passages which they presumed were filled up. However, these shafts and
passages which led into the mines of Fletcher breached and the mines were flooded.
Fletcher was successful in bringing an action against Rylands in tort. The court held
that a person who brings on his land a thing which is dangerous or which is likely to
cause mischief he keeps the said thing at his risk. If he allows it to escape resulting
in damage to another person’s property then he is answerable in tort. Thus it was
established that it is immaterial that the act complained of must have been done
wilfully. It will suffice to sustain a charge if it is established that a legal right of a
person is damaged by the omission of the tort feasor to guard the thing he brings on
his land and which he knows is likely to cause mischief if allowed to escape.
2.3 Damnum sine Injuria
This maxim means that all damages suffered may not give rise to an action in
tort. It has to be noted that only where the damage is caused due to a violation of a
legal right that a tortious liability arises. A damage caused however severe may not
entitle a person to an action in tort unless such damage is the result of a violation of
a legal right. There are cases where the damage was suffered from justifiable acts or
damage arising out of the exercise of another person’s legal rights ; Damage caused
due to a person’s action in improving his business to trade or a person’s lawful use
of his own premises will not amount to a liability in tort unless there is an infringement
of another person’s legal right.
Moghul Steamship Co. Vs. Megregor Gow and Co. (1928 A.C. 25)
In the above case, Megrogor Gow and Co in order to monopolise the China tea
trade reduced the freight thereby driving the Moghul Steamship Co. out of trade.
The action brought by Moghul Steamship Co. was dismissed by the House of Lords
on the ground of justifiable measure of self protection and that no legal right of the
plaintiff was violated.
Gloucester Grammar School Master’s case
A school master started running a school next to the plaintiff’s school. The
school so established was favoured by many pupils. In an action brought by the
plaintiff against the school master. It was held that it was only a damage without
injury and the action was dismissed thereby recognising the right of competition.
In a reported Indian case it was held that ‘An act may cause inconvenience and
even loss to others such as competition in business. The simple rule of law is that no
action lies on the ground of mere damage, however substantial caused by some act
which does not violate a legal right-Assuming that the Board in granting recognition
to the rival institution had acted in breach of the provision of the Regulations made
under the M.B. Secondary Education Act, the petitioner had failed to show any
violation of his right except that as a result of the competition he had suffered a loss
(1959 MPC 52:1959 MPL) 150 1959 Jab L.J. 232).
Acton Vs. Blundell
In the above case it was held that the action of a mine owner resulting in drying
up of the plaintiff’s well is not tort as it was only damnum sine injuria.
 8
Chasemore Vs. Richards
The sinking of a well on the defendant’s lands reduced the flow of a natural
stream which was being used by the plaintiff mill owner. The mill owner’s action in
tort against the defendant failed as it was held that no action will lie for interference
with ground water as the plaintiff had no legal right over water streams flowing
below the surface of the earth.
Allen Vs. Flood
In this case the plaintiff’s action was held to be unsustainable as the defendant
had done no unlawful act used no unlawful means in procuring the plaintiff’s
discharge. Even though the motive may be bad or malicious, the action in tort must
fail if no legal right of the plaintiff was violated. In a reported Indian case, the Madhya
Pradesh High Court held that if a person has not acquired an easement right for
support of building or structure from his neighbour’s land, the neighbour will be
well within his rights in carrying out excavation on his soil even though if by so
doing, damage is caused, provided there is no negligence in excavation operations
(AIR 1957 Madh. Pra. 227).
2.4 Injuria Sine Damno
While Damnum sine (or absque injuria) denotes that a torture liability does not
arise if no legal right is violated though loss or damages had resulted due to any act
or omission. Injuria sine damno would denote that a tortious liability will arise by
the infringement of a legal right though such tortious act or omission had not resulted
in causing any loss or damages.
The law recognises certain legal rights as very precious and important to every
private person, that the mere violation of such a right will prima facie give the victim
an action in tort. These torts are ‘actionable per se’ and the plaintiff need not prove
damages. The law will presume that the tort has been committed unless the defendant
can prove that he was justified in committing the tort. Though a person committing
trespass over the land of another does not do any damage to the property, the law
presumes that he has committed a tort. There are innumerable cases enlightening
this doctrine. The leading case on this doctrine is ASHBY Vs. WHITE (1973-2Ld-
Raym 938). A polling officer, erroneously restrained the plaintiff from exercising his
franchise, though the plaintiff was in no way prohibited from voting. In an action
brought it was held that a tort was committed by the violation of legal right of the
plaintiff though the plaintiff had not suffered any loss or damages. A similar case
was decided in favour of the plaintiff by an Indian Court where the Polling Officer
refused to register the vote of the plaintiff. Dravidian Pillai Vs. Cruz Fernandez.
(1915) 29 M.L.J. 704.
Since no damage is suffered, the courts tend to award only nominal damages as
compensation as the damages suffered are practically nill since cause of action arises
out of mere violation of a legal right.
Yet other torts under this doctrine are recognised only if the plaintiff proves
actual damage. At this point, I would like to clarify that the word damage denotes
the injury resulting in the loss or denial of a person’s legal rights of the property
rights of the person, caused due to infringement or violation of such rights. The
 9
word ‘damages’ denotes, the compensation payable or awarded to the injured person.
‘Damage creates a right in a person to claim ‘damages’. The above mentioned torts
are said to be committed when a qualified right of a person is violated. Such violation
is actionable only on proof of loss or damage. In torts arising out of nuisance, fraud,
malicious prosecution are some examples where the plaintiff will succeed only if
special or actual damage is proved.
2.5 Mensrea
The law of tort is administered irrespective of the mental state or guilty mind of
the wrong doer. A person is said to have mensrea or guilty mind when he does the
act with the awareness of the act he is committing and with full knowledge of the
consequence of such act. The physical aspect of doing an act is preceded by the
mental awareness of the actor.
To prove most of the criminal offences the guilty mind of the offender is essential.
In the law of tort, mensrea is irrelevant and an action in tort may be sustained
through the tort feasor had no guilty mind. For instance, the doctrine of strict liability
is based on the mere infringement of a legal right and a tortious liability under this
doctrine is sustainable though the infringement committed was without mensrea.
Yet another example is torts founded on the doctrine of vicarious liability.
Action on malicious prosecution, defamation, conspiracy, deceit, also
infringement are examples of torts which depend on the mensrea of the defendant.
2.6 Malice
Malice is attributed to acts done with an ill will towards a person or another.
When a person does a thing to cause injury to another person, knowing such injury
will be the result of his act and wanting to cause such injury to that person, is said
to have malice. Though a person may do an injurious act with malice, the law of
torts may not recognize the same unless it is proved that a legal right of the victim
has been violated. If the act is malicious, still the wrong doer escapes if the act was
done in furtherance of the wrong doer’s own legal right provided a legal right of the
victim is not violated.
The case of Mayor of Bradford Vs. Pickles, that was earlier illustrated in this
Chapter, is one of the leading cases. The defendant in that case was not tagged with
tortious liability for his malicious act, as the court found that no legal right of the
plaintiff was violated. This principle was further confirmed in the case of Allen Vs.
Flood which has also been illustrated in this chapter. The irrelevancy of malice is
illustrated by Lord Macnaughten, who in the case of Chasemore Vs. Richards wrote
that ‘In such a case motives are immaterial. It is the act, not the motive for the act
that must be regarded. If the act, apart from the motive gives rise merely to damage
without legal injury, the motive however reprehensible it may be, will not supply
that element.
2.7 Intention
A person is said to do a thing with an intention when he does the same after
arriving at a decision to do it, knowing the consequences or result of the action.
However, it is impossible to ascertain the intention behind every action. The law
shall presume intention according to the circumstances surrounding the act and
 10
the natural presumption in law is that the person doing a thing had intended to do
it. The burden will fall on the person committing the act to prove that this action
was innocent. Winfield illustrates intention as follows.
If I fire a gun at your dog, wishing merely to scare it and in fact some of the
pellets hit it, does not lie in my mouth to say that I intended only to scare it and not
to hit it. And it would be equally idle for me, at any rate, in law of tort, to say that I
never wished to hit you, if in fact some of the shots glanced off the ground and
wounded you who were standing near your dog’. However, irrespective of the
intention being good, bad or indifferent an action in tort will lie if some legal right
was violated.
2.8 Negligence
While negligence itself is a branch of the law of tort, it also denotes the mental
state of the person. Here, I shall discuss only the mental state and later I shall deal
with the specific tort of negligence.
The person who is negligent does not intend the consequence of his act ; he is
indifferent of the result of his act or is careless in doing the act. You may also say
that the negligent man does not take the care on ordinary prudent man would be
expected to exercise. According to the latest trend, it has become immaterial whether
the negligent element is involved in an act to give rise to tortious liability. The rule
laid down in Rylands Vs. Fletcher was the beginning of the doctrine of ‘strict liability’
whereby intention, malice or negligence had become immaterial to sustain an action
in tort. This case has already been discussed. As per the latest decisions, the courts
tend to fix tortious liability more and more based on the capacity of tort-feasor to pay
compensation. In the case White Vs. White, it was stated that ‘Recent legislative and
judicial development show that the criteriol of liability in tort is not so much culpability,
but on whom should the risk fall”. Fatal Accidents Act, Workmen’s Compensation
Act, Motor Vehicles Act are some enactment which tend to give more importance to
this latest trend. Let he one who can afford be made to bear the damages.
2.9 UBI Jus IBI remedium
Where there is a right, there is a remedy. As law recognises various legal rights,
it has also provided adequate remedy in case of breach of such legal rights. The
principle is based on the notion that unless redress is provided behind a legal right
that right will become obsolete and useless. Without sanction no right, can exist.
The law of tort thus recognises the right of a person to bring an action for damages
if his legal right has been violated. The law does not provide a remedy for every
injury. The injury should be to a legal right. Though the victim might not have suffered
either loss or damages and such a legal right must be recognised by law. Thus the
society has evolved torts of strict liability and vicarious liability based on the justifiable
end that violation occurred without any intention, malice or negligence.
2.10 Impact on Insurance
With the advent of the doctrine of strict liability and expansion of vicarious
liability, new kinds of torts are being recognised by courts and many acts and
omissions are considered as torts. The courts have started fixing liability according
to the capacity of the tort-feasors to pay compensation with the result of various
 11
legal injuries are considered as torts and in many cases, huge amounts are being
awarded as compensation. With the increase in cases, of torts and due to their
flexibility, the scheme of insurance has enlarged. Yet it is found to be inadequate.
Insurance, either national or private do not provide for full compensation as they do
not undertake to indemnify loss due to award of compensation of ’pain and suffering’,
‘loss of amenity’ or ‘loss of expectation of life’. Further, the scheme of social security
is expanding and employers find themselves overburdened with liability under the
doctrine of vexatious liability. In the result, a centralised insurance system will, to
a great extent, help to reduce the burden on tort-feasors due to increasing for torts.
There may some time when the social security may attain huge magnitude that
victims of disease or congenital disability may be awarded better compensation than
victims of accidents. The development of insurance has given a new appearance
and dimension to the law of tort.
2.11 Suggested Questions
1. Define ‘right’ point out the difference between private right and public right.
2. Write a note on following
1) Damnum sine Injuria
2) Injuria sine Damno
3) Mensrea
4) Malice
 12
LESSON - 3

GENERAL DEFENCES

3.1 Introduction
3.2 Volenti Non Fit Injuria
3.3 Free Consents
3.4 Rescue Cases
3.5 Inevitable Accident
3.6 Suggested Questions
3.1 Introduction
An action in law naturally gives the defendant a right to defend. He may prove
either that the essential ingredients are wanting or that he was justified in doing the
act or omission complained of. The general defences in tort can be classified as
follows :
1. Defence of consent or Volenti non fit injuria.
2. Inevitable accident.
3. Necessity
4. Private defence
5. Mistake
6. Statutory authority or Act of State
7. Vis major or Act of God.
3.2 Volenti non fit injuria
This defence is founded on the logic that when I consent for an injury or when
I consent for something which I presume will cause me an injury, then I should be
estopped from bringing an action for such injury. A consent may be expressed or
implied. The defence of consent is more fitting in cases of personal injury rather
than in cases of damage to property.
As said above, a person may consent for intentional acts or to the inflicting of
harm, or he may consent for a thing which he knows is likely to inflict injury or in
other words consent to risk the injury. If I sit to watch a cricket match, I consent to
risk an injury that may be inflicted by a flying ball. A patient voluntarily consents for
an operation. The law therefore discourages persons from bringing an action for
injuries to which he consented. A person voluntarily entering a property assents for
the injury and this principle is known as ‘leave and licence’. If I go to examine an old
dilapidated house which I know to be dangerous, then I consent to run the risk of
being injured. I am, therefore prevented from bringing an action of I sustain an
injury due to the fall of a beam. I undertake to train dogs or horses. If during training,
I get bitten by a dog or thrown from a house. I cannot sustain a claim in tort. It is,
therefore, settled that if I undertake a dangerous assignment, then I am considered
to consent to run the risk of being injured.
 13
Hall Vs. Brooklands Auto Racing Club (1933 I K B 205)
The plaintiff, a spectator to an auto race was injured when the car ran out of the
course into the crowd of spectators after a collision with another racing car. It was
held that the plaintiff had given implied consent to run the risk of being hurt by
seeking admission to watch the race and hence the owner of the race track
(defendant) was held not liable. In a similar case, Wilks V. Cheltenhalm Home Guard
Motor Cycle and Light Car Club, the defendant was held not liable in tort to
compensate the plaintiff who was injured during a motor cycle race.
Bolton and Others Vs. Stone (1951 A.C. 850)
The plaintiff, one Miss. Stone was unable to sustain an action in tort for being
hurt by a flying cricket ball as it was held that she had given implied consent for the
injury when she had gone to witness the match.
The basis for the above decision is that a spectator is presumed to have foreseen
the risk when he got admission to watch a match. As such, it was considered that
the foresight amounted to implied consent.
While dismissing the action in tort, it was held that ‘A person watching a game
or competition takes the risk of any damage caused to him by any act of a participant
done in the course of and for the purpose of the game or competition, notwithstanding
that such act may involve an error of judgement or a lapse of skill, unless the
participant’s conduct is such as to evince a reckless disregard of the spectator’s
safety.
Imperial Chemical Industries Ltd. VS. Shatwell (1964-2 All E.R. 999)
Two persons, brothers, were employed to carry out certain test. Though warned
regarding the risk and advised to take precautions, they disregarded the same with
the result they were injured. In an action brought by them for vicarious liability and
breach of statutory duty, the House of Lords upheld the defence of ‘Volenti non fit
injuria’.
T.C. Balakrishna Vs. T.R.Subramanyan AIR (1986) Ker 151
In the above case, a fire cracker which was supposed to flyup wards instead
flew into a crowd watching the spectacle and injured the plaintiff. The action of the
plaintiff in tort was upheld and the defence of ‘Volenti non fit injuria’ was negatived.
Baddely Vs. Earl Granville
Stanley Vs. Gypsum Mines Ltd.
In the above two cases, the defence of volentinon fit injuria was negatived on
the ground that the defendants themselves were in breach of statutory duty.
It should be noted that the defendant must show that he had not violated a
statutory duty. If while doing a wrongful act or mischievous act an injury is caused
the defendant cannot plead consent on the part of the victim in breach of the statutory
duty was authorised by the defendant.
3.3 Free Consent
To avail protection under this defence, the consent must be free. A consent
obtained by coercion or misrepresentation will not be a good defence. Further, the
person consenting must be in a position to give the consent without any restriction
 14
or apprehension of any risk. A servant or an employee is bound to protect his master’s
property and if in the act of saving the property he is injured, it cannot be contended
that he had consented to the risk.
Consent to Unlawful Acts
A consent given to an act which is illegal or unlawful or which is banned by law
will not give the injured a right to any compensation. Dr. Winfied states that no man
can licence another to commit a crime. No man can lawfully consent to his own
death’. Where consent is to an act which is against public policy the injured cannot
sustain an action in tort. The basis is that such acts, if allowed to happen will affect
public morality or safety and such acts become contrary to public policy. Any consent
given to do such acts is considered as unlawful and the injured will be estopped
from claiming damages. A person who consents to do an act which is basically
dangerous and which in all probability will result in injury cannot make a complaint
in respect of such injury.
Knowledge Generally is not consent
There may arise a misconception that knowledge of an impending injury coupled
with the omission to attempt avoidance of such injury will amount to consent.
However, in the law of tort, such situation is not considered as consent and
consequently is not a good defence except in exceptional cases. However, such
circumstances may go to mitigate the award of compensation.
Clayards Vs. Dethick
One of the plaintiff’s horses fell into a dangerous trench dug by the defendant
and was injured. The defendant was held liable.
Sarah Vs. Blackburn
Though the defendant had put-up a notice. Beware of the Dog the plaintiff who
was bitten by it on entry into the defendant’s yard was able to sustain an action. It
was held that he was unable to read and the notice of warning cannot preclude him
from claiming damages.
South Indian Industrials Vs. Alamelu (1932-17 L.W. 495)
The defendant on order break cast iron used to drop a heavy weight from a
great height on pieces of iron. One such fall threw the pieces all round thereby
injuring the plaintiff employee. The plaintiff was able to sustain an action in tort and
the defence of volenti non fit injuria was disallowed. A person though doing a lawful
act, must be held responsible for any injury caused to others when he employs a
dangerous method of doing such lawful act.
Smith Vs. Banker
In the above case, the court allowed the plaintiff’s claim by disallowing the
defendant’s plea of consent. It was held that knowledge coupled with acquiescence
would not amount to consent unless there are other circumstances to prove that
consent was given to run the risk.
In this case the defendant used the method of swinging stones over the workers
by means of a crane due to which the plaintiff was injured.
 15
Bowater Vs. Rowley Regis Corporation (1994 I.K.B. 476)
In this case, Goddard L.J. held that ‘A man whose occupation is not a nature
inherently dangerous, but who is asked to undertake a risky operation is in a different
position. To rely on the doctrine the master must show that the servant undertook
that the risk should be on him and was a volunteer in the fullest sense.
Dann Vs. Hamilton
The plaintiff knew that the defendant motorist was drunk when she entered his
car. During the drive, the defendant stopped at two places and had further drinks.
Due to an accident, she was injured and brought an action against the defendant’s
estate (as the defendant died in the crash). The defendant’s plea that the plaintiff
had given implied consent by continuing to ride in the car in spite of knowing that
the drivers was drunk, was negatived by the court which held that knowledge is not
consent in this case.
The above decision has been criticised as it was held that a rider who knows
that the driver is intoxicated in guilty of contributory negligence. In an Australian
case, Insurance Commissioner Vs. Joyce, the plaintiff’s claim was disallowed on the
grounds of volenti none fit injuria and contributory negligence. It was argued that a
passenger who knowingly accepts a lift or free ride from a drunken driver has no
cause of action as there was no breach of a duty.
When a person undertakes a dangerous occupation or does something that is
dangerous, that person is presumed to consent to run the risk inherent to such
occupation or doing of the thing. However where injury was caused by the negligence
of the defendant, the victim can sustain a charge though the occupation was
dangerous. The defendant must prove that he was pursuing his lawful occupation.
Slater Vs. Clay Cross Co. Ltd.
A tunnel of a narrow gauge railway owned by the defendants was usually used
by people residing nearby as a passage. The plaintiff who was walking through it one
day was injured by the negligence of the driver. In an action brought by the plaintiff,
it was held that the defendants cannot plead the defence of the volenti non fit injuria
since the plaintiff though had knowledge of the danger could not have foreseen the
negligence of the driver. However, the quantum of dangerous may be reduced on the
ground that her knowledge amounted to contributory negligence.
3.4 Rescue Cases
Haynes Vs. Harwood
In the above case, the Court observed that the ‘doctrine of the assumption of
risk’ does not apply where the plaintiff, has under an exigency caused by the
defendant’s wrongful misconduct, consciously and deliberately faced a risk, even of
death to rescue another from imminent danger of personal injury or death, whether
the person endangered is one to whom he owes a duty of protection, as a member of
his family or is a mere stranger to whom he owes no such special duty.
A van and its horses were negligently left on the street by the defendant’s servant.
The horses bolted when a stone was thrown at them by a boy. The plaintiff, a policeman
seeing that a woman and her child were in imminent danger, managed to stop the
 16
horses at a great personal risk. He was able to sustain an action in tort for serious
personal injuries suffered, on the court applying the above exception.
From the above citation, we can see that a rescuer may not owe any duty to the
person in danger. Even in a rescue of a stranger, the injured rescuer can bring an
action in tort against the negligent or mischievous defendant. The vital significance
in rescue cases is that no legal right of the plaintiff (rescuer) has been violated and
yet he is awarded compensation in tort.
Gergory Vs. Miller
Morgan Vs. Allen (1942) I All E.R. 489
A pedestrian rescuing a girl, from being run over by a motor vehicle was held
entitled to damages.
Baker Vs. T.E. Hopkins & Sons Ltd. 1959 I.W. L.R. 966
In the above case, a doctor owing no duty whatsoever towards two workmen
caught in a well, while attempting to rescue them by descending into the well was
overcome by fumes. The court held that an action in tort will lie.
The court held that ‘The principle is that if one person by his negligence causes
another to be in a position of danger, he should have regard to the probability that a
third person, acting bravely and promptly and subjecting any timorous over concern
for his own well being or comfort, may attempt a rescue.
The exception founded on rescue cases not only apply to rescue of persons in
danger but also when properties are saved. The doctrine applies irrespective of the
relationship between the rescuer and the rescued. As illustrated in the above cases,
even if they are strangers, an action in tort will lie. When it either dangers persons or
property, the doctrine can be applied. However, when it is a case of rescue of property,
the courts are more concerned regarding reasonableness of the rescue since property
is considered less precious and sacred than human life. In the case of Russel Vs.
McCabe, it was held that if a fire breaks out, it is reasonable to foresee that volunteers
may be injured while trying to rescue persons or property.
The above doctrine not only applies in cases where the defendant by his
negligence puts another person in danger, but also in cases where the defendant
puts himself in danger by his own negligence and is rescued. If I by my own negligence,
fall into deep pond, I must foresee or expect a passer-by to attempt a rescue. I shall
be responsible to compensate my rescuer in tort for any injury he may sustain in the
rescue. The principle also applies in cases where the risk run by the rescuer is
greater than that of rescued as the fact of rescue involves unexpected things
happening. Sometimes, there is a tendency to put forth defences of remoteness of
damage on the ground of intervention of a third party, the rescuer. Pollack negatives
this and writes that the law does not think so mainly of mankind as to hold it otherwise
than a natural and probable consequence of a helpless person being put in danger
that some able-bodied person should expose himself to the same danger to effect a
rescue’. The criterion is that the rescuer should attempt to rescue persons or property
from danger. Where there is no danger involved, then any act of the plaintiff will not
give him a cause of action in tort. In the case of Silvester Vs. Champman Ltd. (1935)
79 S.J. 77, it was held that the plaintiff mauled by a leopard whilst inside barrier at
 17
a circus, endeavouring to extinguish a cigarette and lying on straw, is not entitled
to bring an action in tort. If, while attempting to stop a runaway horse on a desolate
land, I sustain injuries, I shall not be able to recover any compensation as no person
or property was in danger of being injured by the running animal.
3.5 Inevitable Accident
The defence of inevitable accident can be availed of, if the defendant can prove
that he could not have foreseen the injury and that such injury could not have been
avoided even if he had employed reasonable care or skill. Sir Fredrick Pollock defines
an inevitable man, doing such an act then and there, could be expected to take.
Lord Dunedin once stated that people must guard fantastic possibilities.
The defence of inevitable accident can be pleaded on two grounds. One is known
as ‘Act of God’ which will denote things happening beyond the control of the defendant
and generally, attributed to causes occurring due to natural forces. All other causes
from the second ground to plead the above defence. Generally, these are attributed
to causes resulting from acts of human beings.
The leading case on this defence is Nitroglycerine case (1872) 15 Wallace 524.
At a time when the properties of Nitroglycerine were not widely known, the defendant
carriers received a wooden box for transportation Midway at one of their depots, the
contents of the box were found leaking. The box was taken to the defendants office
for examination. The Nitroglycerine exploded when a servant of the defendant tried
to open the box in the result the office building was damaged. In an action brought
by the land lord for damages to the building, the defendant successfully pleaded the
defence of inevitable accident. While accepting the defence, the Supreme Court of
America based its decision on the fact that the defendant could not have known the
contents of the box while receiving the same for carriage as there was no reasonable
ground for suspicion and that the defendants were not negligent. The court stated
that the measure of care against accident which one must take to avoid responsibility
is that which a person of ordinary prudence and caution would use, in his own’.
Further, it was held that the act of opening the box on suspicion of its contents was
considered as a reasonable thing done by the defendants whilst pursuing their lawful
business.
Brown Vs. Kendall
The defence of inevitable accident was successfully employed in this case which
was decided by the Supreme Court of Masachusetts in 1955. The action of the plaintiff
for a tort of trespass for assault was dismissed when the defendant raised the plea of
inevitable accident. The court stated that if in the prosecution of a lawful act a
casualty purely accidental raises, no action can be supported for an injury arising
there from’. The defendant trying to separate two fighting dogs was striking them
with his stick. While backing up and striking them at the same time, he accidentally
hit the eye of the plaintiff who was standing behind him, watching the proceedings.
The court held that the accident was of a pure chance and was involuntary and
unavoidable as the defendant was not aware of the plaintiff standing behind him.
Holmes Vs. Mather
The facts of this English case are as follows :
 18
A pair of horses driven by the driver of the defendant, who was going out, ran
away. The driver who was unable to stop them therefore he guided them through the
streets to the best of his ability. However, while turning a corner, horses injured the
plaintiff. When the defendant pleaded inevitable accident, the suitor contended if
the horses had been driven straight, they would have gone inside a shop and would
not have injured the plaintiff. The court while accepting the defence stated that ‘For
the convenience of mankind in carrying on the affairs of life people as they go along
the roads must expect or put up with mischief as reasonable care on the part of
others could not be avoided. The ground of inevitable accident is considered as
good defence in case of tort on negligence.
Stanley Vs. Powell (1891) I Q 8.86
The plaintiff a cartridge carrier to a shooting party was injured by a pellet which
glanced off a tree. The action brought by the plaintiff against the defendant who had
fired that shot was dismissed when the defendant pleaded inevitable accident.
Ryan Vs. Young
An accident which occurred when the driver of a motor vehicle died of a heart
attack was held as an inevitable accident. This would be more on the side of ground
of ‘Act of God’ since the heart attack was purely a natural cause.
National coal board Vs. J.E. Evans and Co. (Cardiff) Ltd & another 1951
AII E.R. 2 (310)
A contractor for a Country Council engaged a subcontractor to dig trenches for
drainage on the council’s lands. The sub-contractor’s workmen damages some
electric cables of the plaintiffs going through the land. The council was not aware of
the laying of these cables and the contractor was not supplied with a plan showing
these cables. When the plaintiff brought an action for trespass of their cable, the
court upheld the defence of inevitable accident.
In an action in tort on the doctrine of ‘strict liability’, the plea of inevitable
accident is no defence. As laid down in the case of Rylands Vs. Fletcher, strict
liability is based more on the risk taken by the defendant by bringing a mischievous
thing on his land and the escape of which he defendant could have reasonably
foreseen is likely to cause damage to his neighbours.
3.6 Suggested Questions
1. Discuss in detail the maximum “Voleritinon fit injuria” with the help of case
laws.
2. What are the various general defences available in tort.
 19
LESSON - 4

VIS MAJOR-ACT OF GOD

(General Defence - Contd.)

4.1 Introduction
4.2 Private Defence
4.3 Defence of Necessity
4.4 Defence of Statutory Authority
4.5 Suggested Questions
4.1 Introduction
The defence of act of God is based on the principle that a person should not be
penalised for an accident which occurred due to an event happening beyond that
person’s control. While the defence of inevitable accident pertains to acts by human
agency, the defence of act of God is based on causes by natural forces. Accidents
due to lightning, floods, storms are some examples of act of God. Dr. Winfield defines
the defence of act of God as an operation of natural forces so unexpected that no
human foresight or skill could reasonably be expected to anticipate it.
Nichols Vs. Marsland
Due to extraordinary heavy rain fall the defendant’s artificial lakes burst and
swept away four country bridges erected on the plaintiff’s land, which was lower
than defendants land on which the lakes were situated. The plaintiff sue the defendant
for damages on the principle of strict liability as envisaged in the leading case of
Rylands Vs. Fletcher. The court dismissed the suit by accepting the defence of act of
God.
In the case of Nugent Vs. Smith it was held that All causes of inevitable accident
casus-fortuitous may be divided into two classes those which are occasioned by the
elementary force of nature unconnected with the agency of man or other causes and
those which have their origin either in the whole or in part in the agency of man and
that act of God is ‘an accident’ that is due to natural causes directly and exclusively
without human intervention and that could not be prevented or averted by the exercise
of reasonable care.
Greenock Corporation V. Caledonian Railway Company
The corporation erected an obstruction across a natural stream, in order to
create a paddling pool for children in their park. One day due to heavy rainfall the
stream overflowed and flooded the property of the railway company. While rejecting
the plea of act of God, the court distinguished this case from Nichol’s case on the
fact that the present case emanated firstly from the interference with nature (stream)
while in Nichol’s case it was only due to creation of artificial lakes.
It should be noted that not all natural causes can form a basis for the defence of
‘act of God’. The occurrence should be extraordinary violent and most unexpected.
In a place where heavy rain fall is common the people are expected to forsee natural
calamities when there is a little excess rain fall. The incident should be a direct
 20
cause of a natural calamity and there should not be any human interference. The
person pleading the defence should not have been negligent. He should prove that
the accident would have occurred even if he had employed reasonable care or skill.
In the case of Attorney General V.Cory Bros it was held that heavy rain fall are
common. In the case of Tenant V.Earl of Glaxo it was held that an act of God is
‘Circumstances which no human foresight can provide against and which human
prudence is not bound to recognize the possibility.
It may be noted that in torts founded on the principle of strict liability, the
defence of act of God usually is not applicable.
State of Mysore V. Ramachandra AIR 1972 Bom 93
In an action brought by the plaintiff for damages to his land and crops caused
by flood waters from the reservoir erected by the state (though an inadequate outlet
for flood waters was provided) due to heavy rain fall the state of Mysore pleaded the
defence of act of God. The defence was rejected and the court upheld the claim of the
plaintiff. In a reported case AIR 1975 Punjab 294 it was held that the accident
taking place as a result of the driver dozing off was not an act of God but a case of
negligence on the part of the driver. In the case reported in AIR 1953 Vindh-pra 21
it was held that where the rainfall was rather heavy but not exceptionally so it was
not an unforeseeable rain fall and as such not an act of God. In a case reported in
AIR 1962 Madras 44 it was held that ‘An act of God will be an extraordinary occurrence
due to natural causes which is not the result of any human interference which could
not be avoided by any amount of foresight and care e.g. fire caused by lightening.
But an accidental fire though might not have resulted from any act of or omission of
the common carrier cannot be said to be an act of God.
In criminal law the defence of mistake is a good defence Sections 76 and 79 of
the Indian Penal code give justification to offences done due to mistake of fact and
acts done which are justified in law, or acts done under the mistaken impression
that such acts are justified in law. In civil law a person who does it so at his risk.
However his act will be justified if it was doon on a belief in good faith and on
reasonable grounds under reasonable circumstances which occasioned such belief.
In other words a tort-feasor will be excused of his acts done under a mistaken
impression that what he is doing is a lawful act and that he is justified in doing the
same. It must be noted that such defence will not be available if the act was basically
unlawful though the injury was not intended. The defence of mistake must be based
on mistakes of facts. If it is a mistake about law it will not be recognized. Ignorance
of law is no justification.
The defence of inevitable accident is based on the fact that the wrong was not
intended, could not have been foreseen and was something unavoidable in spite of
reasonable care. The defence of mistake is based on the fact that the act though
intended had been done on an erroneous belief.
Hollins and others V. Fowler & Others
A persons unlawfully obtained possession of some cotton bales of the plaintiff.
Fowler and sold them to the defendants Hollins & others. Though the defendants
had bought the cotton bales in good faith they were held liable in tort to compensate
 21
the plaintiff and their defence of mistake was negatived. The principle, that a person
who deals with another person’s goods does it at his own risk, was applied, to this
case. The same principle was applied in the case of Consolidated Co. V. Curtis the
facts being similar to the above case.
Since the defence of mistake is based on the mental state of the wrong doer it is
very difficult to ascertain whether there was a reasonable erroneous belief. As such
the plea of mistake is accepted only in extraordinary circumstances. In torts where
motive or malice or guilty mind is an essential ingredient the plea of mistake can
be a good defence.
4.2 Private Defence
Every person has an inherent right to protect himself and his property from any
harm and especially from an unlawful harm. Such right to protection extends to use
of reasonable force to avoid or guard against such danger or harm. The right of
private defence extends to protection of near relatives of the person also. The right of
private defence is recognized in Criminal law and even to the extent of causing the
death of another. As said above the force one used should be reasonable and
proportionate to the impending danger. If a person attempts to slap you, you have
no right to cut off his hand. A person doing a protective act need not wait until the
injury is inflected. He has a right to use reasonable force to avoid of thwart such
impending harm. What is known as self-help is considered as a species of the right
of private defence. When I use force to prevent a person from unlawfully taking my
goods I exercise my right of private defence. If my goods are unlawfully taken away
I may pursue the offender and seize my goods and this is known as selfhelp. As said
earlier the right of private defence extends to protection of property also. The defence
will be available only in respect of force used for protection of property in actual
possession or property to which there is a right to possession for the purpose of
keeping out or expelling a trespasser.
Holmes V. Bagge
The plaintiff a spectator of a cricket match was requested to substitute a player.
He was asked to leave the ground when he refuse to remove his coat. At the defendant’s
instructions he was forcibly removed. In an action brought by him for assault the
court held that the action was not maintainable as he was not in possession of the
grounds.
As said earlier the force used for defence should be reasonable and necessary.
Lord Oaksey observed in the case of Turner V.M.GM. Pictures Ltd., that “If you
are attacked with a deadly weapon you can defend yourself with a deadly weapon or
with any other weapon which may protect your life. The law does not concern itself
with niceties in such matters. If you are attacked by a prize fighter you are not
bound to adhere to the Queens berry rules in your defence.
Bird V. Holbrook
The defendant in order to keep trespassers away had fixed spring guns in his
garden without putting up a notice of warning. The plaintiff who was injured by a
spring gun was held to be entitled to damages though he was a trespasser. It was
held that the method and force used for protection of the property was excessive.
 22
4.3 Defence of Necessity
Any injury or damage caused due to act which was to avoid or prevent a greater
injury, will not give rise to tortious liability even though the act causing such injury
was done intentionally. Here though the act was intentional it was with out malice or
guilty mind. The motive is good as the intention was to prevent a greater evil. Private
defence is an injurious act committed toward off a danger to oneself or to one’s
property while inevitable accident is an unforeseen and unintentional harm which
could not be avoided in spite of reasonable care. The defence of necessity is based
on good public conscience. Though the harm was inflicted. The wrong doer is
unpunished as the motive behind his action is good and in conformity to good public
policy. It is based on the public policy of greater good to greater people at the expense
of evil to fewer people.
Acts committed by soldiers in war especially civil war, surgery by a physician
to save the patient’s life are some of the examples of necessity or pulling down of a
house on fire to prevent fire spreading to other houses are good motives and any
injury or damage arising therefore are justified as good public policy.
Kirk V. Gregory
A lady removed certain jewels belonging to her brother-in-law, who had just
died, in order to prevent them being stolen. However the jewels were stolen by some
unknown persons. The court rejected her plea of necessity on ground that her act
was unwanted in the circumstances of the case.
Burmah Oil Co (Burma Trading) Ltd. V. Lord Advocate
During war a property was destroyed at the orders of the crown in order to
prevent it from falling in to the hands of the enemy. The House of Lords held that the
crown was liable to pay compensation to the owners. It was held that though a war
warrants acts of damage or destruction for saving the nation, it does not entitle a
major demolition as in the case. The defence of necessity was overruled.
4.4 Defence of Statutory Authority
When Law or a statue authorise the commission of an act which would otherwise
give rise to a tortious liability, the injured will have no right to remedy in tort. In the
case of Dunee Vs. N.W. Gas Board it was stated by the court that ‘Where there is a
mandatory obligation..... there would be in our opinion, no liability if what had been
done was that which was expressly required by statue to be done or was reasonably
incidental to that requirement and was done without negligence. It should be noted
that not all acts done under statutory authority are immune from liability. Usually
when a statute provides for an extinguishment of a private right of a person, it also
provides adequate compensation. When the defence is pleaded it should be proved
that the statute had not provided any remedy while sanctioning the taking away of
such a private right or that there was no intention of providing any compensation.
The Statute may provide for a particular thing to be done whether such thing
may inflict an injury or damage upon another persons. This is rather a direct act of
the enactment and a direct approach to the doing of a thing regardless of its result.
In such a situation no action will lie if an injury is caused by the exercise of such
authority and also anything done which is incidental to doing such thing. A railway
 23
line cannot be laid without going over private land (which will amount an injury)
and an engine cannot be run over the lines without noise and vibration. While the
former is a direct exercise of statutory authority the latter is incidental to such
authority. No action will lie in either case. However it should be noted that in either
case the defence will be good only if it was not coupled with any negligence The
basis for such defence, once again, is based on public policy which is the progress
of the nation.
Vaughan Vs. Taffvale Railway Company
A railway was constructed under statutory authority. The defendants had taken
all precautions in the construction of the locomotives and there was no negligence.
In an action for damage caused by fire which was started by a spark escaping from
the locomotive, it was held that as Parliament had authorised use of such engines,
the defendants were justified in using them and as there was no negligence, they
were no liable.
Hammersmith Railway Company Vs. Brana
The Plaintiff sued the Railway Company for damage on the ground of depreciation
of value of his house, which was adjoining the railway track, due to noise vibration
and smoke caused by the running trains. The court upheld the defence of statutory
authority as the causes complained of were incidental to the running of the trains
which was authorised under a certain legislation.
London and Brighton Railway Company Vs. Truman
The above Railway Company was authorised by special statute to carry cattle
and as incidental to such business were also empowered to buy land to an extent of
50 acres to be used as cattle yard. As the statute had no provided for any
compensation in respect of the purchase agreements it was held that the company
was not liable for any business arising from the cattle yard.
Metropolitan Asylum District Vs. Hill
The Court, in the above case, restrained a local authority from erecting a small-
pox hospital in a residential district While passing the restraint order the court
distinguished this case from Truman’s case on the ground that while in Truman’s
case the authority as per the language of the statute was only on the condition that
hospital could be erected only by acquiring a site from which no nuisance will
emanate.
The statue may just permit the doing of a particular thing without indicating
the injury that may result or giving immunity to any injury caused by doing such
thing. In such circumstances the injury result from such act is not actionable
provided there is no negligence in carrying out such authority. The above two cases
are examples for such situations.
The Hill’s case may be distinguished from the case of Attorney Gen Vs.
Nottingham Corporation. In this case the court refused to issue an injunction to
restrain the corporation from putting up a smallpox hospital since it held that the
theory of the aerial dissemination of smallpox had not been unequivocally
established. In the second case the court was not convinced about the resultant
nuisance in establishing an hospital in a residential neighbourhood.
 24
Pride of Derby and Derbyshifs Angling Association Ltd. V. British Celaness Ltd.
Derbyshire Association polluted the plaintiff’s fishery, the River Derwent, due
to discharge of sewage. Though sewage drawing were provided, it had become
inadequate due to increase in population of Derby. The court of Appeal held that
the Corporation Act, 1901 on its true construction had not authorised the commission
of a nuisance. Where the statutory authority is merely permissive, with no clause
imposing liability for nuisance, no liability will arise for any thing done by virtue of
authority provided it was not done negligently. If however such authority provides
for liability for causing nuisance all acts resulting in nuisance will give rise to
tortious liability, though done under statutory authority and without negligence.
4.5 Suggested Questions
1. What is meant by ‘Defence of Necessity’?
2. What is meant by “Private Defence’.
3. Write a note on
1) Act of God
2) Defence of Standing Authority.
 25
LESSON - 5

CAPACITY

5.1 Introduction
5.2 State and Sub-ordinates
5.3 Immunity under the Constitution of India
5.4 Action on Damages Resulting from One’s own Fault
5.5 Acts Causing Slight Harm
5.6 Suggested Questions
5.1 Introduction
Before travelling through specific torts one must first know the capacity for
persons to sue and to be sued. Though certain acts may give rise to tortious liability,
such acts when committed by certain persons are justified on the ground of public
polity or on the ground of mental incapacity of the respective persons. Under certain
grounds the law of tort deprives certain persons from suing on tort suffered by
them. These are therefore exception to the general rule that every person is entitled
to sue in respect of an injury suffered due to wrongful acts of another person.
5.2 State and Subordinates
This exception to the general rule of tort is based on a principle followed in
inland that the king can do no wrong. The king was considered as not liable in tort
for any injury caused to any person in the conduct of public affairs. The injured
person had no action against the king in tort but was entitled to either sue for
damages for breach of contract as for restitution of property wrongfully detained.
Since service under the king had expanded to vast extent it was felt that adequate
compensation should be provided for damages caused by the servants of the king in
the curse of employment. The Crown Proceedings Act. 1947 was passed to meet the
above requirement.
Though the aforesaid act in principle embodies the maxim of king can do no
wrong, to a large extent it provided adequate relief to parties aggrieved by tortious
acts of the king’s servants. For all practical purposes the king was equated with a
common man. Torts committed by the king’s servants and agents were held to the
king’s responsibility. In India there is no such parallel enactment. The Constitution
of India under Article 300 recognise the Government of India as a justice person car
able of suing and being sued.
In India the Supreme Court of Calcutta found the East India Company liable in
tort for the tortious acts of its servants. The reported case P & O STEAM NAVIGATION
COMPANY Vs. THE SECRETARY OF STATE FOR INDIA IN COUNCIL (1871) 5 Bom
H.C.A. App. R.I. dealt with an incident in which the horse of the plaintiff was injured
which the servants of the East India Company negligently dropped a funnel they
were carrying on the animal. The court held that the company was doing sovereign
as well as non sovereign functions and that their work at the dockyard where the
accident took place was in furtherance of their non-sovereign functions. The
company was held liable in tort.
 26
Secretary of State for India Vs. Cockraft 1914 I.L.R. 39 MAD. 351.
Due to negligent piling up of stones on the road there was a carriage accident in
which plaintiff sustained injuries. The court held that as maintenance of a military
road in Malabar was an act in the exercise of sovereign functions the state was not
liable to tort. SECRETARY OF STATE FOR INDIA Vs. SHEORAMJEE. JLR 1949 Nag.
875. The unlawful interference by a Forest officer with the right of the purchaser of
forest coupe to cut timber was considered as tortious and the Government of India
was held liable.
The Supreme Court of India had formulated certain guidelines for considering
whether the state would be liable for the tortious acts of the servants while deciding
the case of KASTURILAL Vs. STATE (1965) I.S.C.R. 375. The court laid down that if
the tortious act was committed in the discharge of the statutory functions based on
the delegation of sovereign powers of the state, then no action will lie on such acts.
If this is not so then an action will lie for tortious acts of the servants. Such tortious
acts that are not based on any sovereign power when committed in the course of
employment, the same will be equated with acts committed by servants employed by
a private individual thereby making the state liable in tort. In the above case the rule
laid down in P & O Steam Navigation Company case was approved. When dealing
with the defence of Act of State a student of the law of tort must know its difference
from an act of sovereign authority. To elaborate I herewith reproduce the necessary
extract of a part of the judgement of CHAGLA C.J. IN PROVINCE OF BOMBAY Vs.
ADVANI A.I.R. (1950) SUPREME COURT 621. “An act of State is different
fundamentally from an act of a sovereign authority. An act of state operates
extraterritoriality. Its legal title is not any municipal law but the overifing sovereignty
of the State. It does not deal with the subject of the State but deals with aliens or
foreigners who cannot seek the protection of the municipal law. It is difficult to
conceive of an act of State as between a sovereign and his subjects. If the Government
justifies its acts under colour of title and that title arises from a municipal law that
act can never be an act of State. Its legality and validity must be tested by municipal
law and the municipal courts”.
It is therefore clear that an act of State deals with damage or injury caused to
any foreign state or a subject of a foreign state by an act done by or under the
sovereign authority of the government unless they are temporarily within the
allegiance of the state. As between the state and its subjects the plea of act of State
is inapplicable at times of peace. The plea will apply only in respect of acts affecting
foreigners when done under authority or under ratification of the sovereign whether
in items of peace or during war.
The act of the commander of a British ship employed in the supervision of slave
trade in burning the barracoons of an alien slave trader was ratified by the British
Government. In view of ratification the said act was held as an act of state and the
plaintiff’s action in the case of BURN Vs.DENMAN was held unsustainable in law as
the act complained of was an act of state.
Tanjore Raj case : Secretary of State for India Vs. Kamatchee Boyee Sahiba.
On the death of the last male ruler of the kingdom of Tanjore the East India
Company annexed the same. While holding that such annexation was an act of
 27
State, Lord Kings down stated that transaction of independent states between each
other are covered by other laws that those which municipal courts administer. Such
courts have neither the means of doing what is right nor the powers of enforcing any
decisions they may make. It was therefore decided in this case that annexation or
hostile seizure of a foreign territory is an act of state.
State of Sourashtra Vs. Memon Haji Ismail
In November 1947 the administration of Junagarh was taken over by the
government of India. Consequently an administrator was appointed. In January
1948 the administration vested with the state of Sourashtra. In October 1948 an
order was passed by the Administrator setting aside the gift of a property by the
Nawab to one Aby Panch which was subsequently sold to the plaintiff. The order laid
down that the property was a state property. The Supreme Court of India held that
on the date of the order there was no formal annexation of Junagrh and as such the
plaintiff and other citizens of Junagarh were aliens as they had not become citizens
of the Indian Dominants. As such the act of the Administrator though arbitrary was
held as an act of state and not actionable in the municipal courts. The same rule
was applied in the case of STATE OF SOURASHTRA. Vs. MOHAMED ABDULLA AND
OTHERS on similar facts. The order passed by the administrator gifts made before
annexation of the state of junagarh by the Nawab, was held as an act of State.
HARDIAL SINGH. Vs. STATE OF PEPSU.
In the above case the state of Naba was merged with another state and the state
of Pepsu was formed. A gift made by the Ruler of Naba was challenged by the state
of Pepsu. The order nullifying the gift was not held as an act of state and the plea
was rejected. The court stated that this was only a mergor between states all citizens
of the merging state continued to be citizens of the new state thus formed. Here
there is no annexation. It was held that the plea of act of state is no applicable to the
state against its own citizens.
Elaborate gluidness were laid down by the Supreme Court of India in the case
of PROMODA CHANDRA DEB Vs. STATE OF ORISSA AIR 1962 S.C.I. It was
categorically held that the municipal courts cannot question or investigate an act of
state whether in reference or public rights of private rights.
5.3 Immunity Under the Constitution of India
Under the Constitution of India the President, Prime Minister and the Governors
of state are held as not answerable for any act done in exercise of performance of the
powers and duties vested in them by virtue of their office. Further it is provided that
no criminal proceedings can be instituted or continued against them in any court
during their term of office. This also applies to criminal acts committed before they
entered office. No court can issue any process for their arrest or imprisonment during
their term of office.
Article 361 (3) reads ‘No court proceedings against the President or the Prime
Minister, or the Governor of a State, shall be instituted or continued during his term
of office in any court in respect of any act done or purported to be done by him in his
personal capacity whether before or after he entered upon his office as President or
as Prime Minister or as Governor of such state; Provided that the period for which
 28
such civil proceedings could not be instituted shall be excluded for the purpose of
any law for the time being on force relating to limitation’.
It may be noted that immunity is granted to act done by them in their personal
capacity. The Maintenance of Internal Security Act and such like acts which provide
for law regulating emergency, confer immunity in respect of acts done by public
officers in the performance of their duties under such enactments.
Officers of State
The executive and judicial officer of the State enjoy immunity to certain extent
in respect of their acts. The immunity enjoyed by judicial officers are wider than that
enjoyed by the executive officers.
Judicial Acts
In England a judge of one of the superior court is absolutely exempt from all
civil liability for acts done by him in the execution of his judicial functions. It extends
not only to errors in law and fact, but also to malicious’ corrupt or oppressive exercise
of his judicial powers. The basis behind such principle is to create an independent
judiciary. The remedy for error in law or fact is provided in the form of appeal. Where
there is corruption or judicial oppression the offending judge can be removed or a
criminal prosecution can be initiated. However no action for damages will lie against
the judicial officers and the State is not vicariously liable for such acts. However it is
not settled whether a judge of a superior court can be held liable for acts done
beyond his jurisdiction. even for such act the courts tend to give immunity as decided
in the case of TAFE Vs. DOWNES.
A judge of an inferior court of record does enjoy immunity in respect of acts
done with are not beyond their jurisdiction.
As per the Justices Protection Act, any action against a justice of the peace of
an inferior court not of record, for an act done within the limits of his jurisdiction
shall be an action on the case as for a tort. But it shall be necessary to prove malice
and the absence of reasonable and probable cause.
Indian Law
Under the Judicial Officers, protection Act, 1850 acts done by judicial officers
in the discharge of their duties are protected.
Section I of the Act reads as follows:-
‘No Judge’ magistrate, justice of the 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 believed himself to have jurisdiction
to do or order the act complained of: and no officer or any court or other person
found of execute lawfully warranties of orders of any such judge, magistrate,
justice of the peace, Collector or other person acting judicially shall be liable to
be sued in any civil court for execution of any warrant or order which he would
be bound to execute, it within the jurisdiction of the person issuing the same’.
 29
This section not only provides protection against judicial act done by judicial
officers in the discharge of their duties but also those acts which are beyond their
powers, provided the same was done in good faith and under belief that they had
such powers. The protection extends also to acts done by officer sanctioning under
orders of such judicial officer under the above mentioned circumstances. Where
the act is malicous or malafide and outside the jurisdiction of the officer, such acts
are actionable.
Sailajan and Pande Vs. Suresh Chandra Gupta
The plaintiff was arrested by orders of a magistrate. The Patna High Court finding
the act of magistrate to be mala fide and illegal held that he is not entitled to protection
under Judicial Officers. Protection Act. 1850 and held him to be answerable for an
action for false imprisonment.
Where a judicial officer function in a dual capacity viz judicial function and
ministerial functions, his office will not entitle him protection regarding acts done by
him in the discharge of his ministerial function.
State of U.P. Vs. Tulsiram
Out of five persons jointly prosecuted for certain offence, two were acquitted
while the other three were convicted. The judicial officer concerned while issuing
arrest warrants erroneously issued warrants for the arrest of all five persons instead
of issuing the warrant in respect of the three convicted persons. In the result the
acquitted were also arrested, hand cuffed and taken from the village to the police
station which was six miles away. In the suit filed by the aggrieved persons against
the judicial officer and the State of U.P. (far vicarious liability) the trail court held the
State of U.P. as liable for vicarious liability and awarded damages of Rs. 5/- but
dismissed the suit as against the judicial officer holding that he was entitled to
protection under the Judicial Officers Protection Act. On appeal the Allahabad High
court held that the State was not liable as the act done by the judicial officers was in
the discharge of the duties imposed on him by the law. However it held the judicial
officer is liable for the wrongful arrest of the plaintiff. The High Court reasoned that
the issue of warrants, was an act of the officer in the discharge of his ministerial
functions and it had nothing to do with his judicial functions. Since the Judicial
officers Protection Act 1850 protects only judicial acts, the officers concerned was
held liable to compensate the plaintiff, justice Beg stated that The only function he
(Judicial Officers) had to perform was that of signing the warrants of those three
convicted persons whose appeals had been dismissed by this court and who had not
surrendered. In the performance of this purely executive function, the judicial officer,
who is impleaded as respondent, alleged that he had been misled by the Ahamed.
He signed the warrants without looking into the orders of this court or the direction
of the Sessions Court or even his own... ... .... He failed to apply his mind to the facts
of the case to directions give in to him. It cannot be said that he was protected at all
by the Judicial Officers Protection Act in signing warrants negligently.
Quasi-Judicial Acts
The statutory bodies like Universities, college committees, clubs and others
which exercise quasi-judicial functions are granted protections in respect of acts
 30
done in the discharge of such quasi-judicial functions. However such protection
will be available only if they had acted within the rules as laid down for exercising
such quasi-judicial functions and they had been exercised according to natural
justice.
Executive Acts
Public servants and such like executive officers are granted protection to a
limit in respect of actions taken in the course and in the discharge of their various
executive duties. A police officer arresting a person under a warrant which appears
to be valid and to be issued by a person having lawful authority to issue such a
warrant, is absolutely protected. This is based on the reasoning that a police officer
when receiving a warrant was given to him by a person who is superior to him and
who has power to depute such police officer for the purpose of executing such
warrants. However if he arrests a person not named in the warrant or seizes goods
which are not ordered to be seized than he will be answerable for damages in a civil
action. He must discharge his duties according to the orders, though such orders
may turn out to be issued without authority. Only in such cases he will be protected.
An action under an apparent authority is a good defence provided there is no
dishonest intention or malice being such action.
5.4 Action on Damages Resulting for one’s own Fault
There may arise cases in which a person may suffer injury or damages by his
own act or fault or by his own wrong doing. A person who is a trespasser can bring
on action against the owner of the property, for an injury caused by spring gun set
on the land. In the case of BIRD Vs. HALB ROOK, the land owner was held liable on
the above facts though he had set the spring funds on his lands as protection against
trespassers. The court held him liable on the ground that he owed a duty to warn
trespassers about the impending harm awaiting such trespassers and the force used
was excessive. Though the plaintiff himself was a wrong doer an the injury sustained
was due to his own fault he was still able to succeed in an action on tort.
5.5 Acts Causing Slight Harm.
When the damage or injury or harm suffered is trifle or is of no significance, the
law of tort does not recognise the same as actionable. However it should be acted
that this rule is not applicable where there is violation or infringement of a legal
right. Water splashing on a person due to a speeding vehicle, dust thrown on a
pedestrian by car are not actionable. But strolling across or entering on a property
without leave is actionable in tort for trespass, as a legal right is infringed by such
action.
5.6 Suggested Questions
1. ‘Every person is entitled to snc inrespect of an injury due to wrongful acts of
another person’ write the exception to the above rule.
2. Write a note of
1) Excessive Acts
2) Judicial Acts.
 31
LESSON - 6

CAPACITY (CONTD.)

6.1 Minors
6.2 Parental Liability for Minors Tort
6.3 Torts of un born Children
6.4 Lunatics, Drunkards
6.5 Married Woman
6.6 Corporation
6.7 Intravires Tort
6.8 Ultra Vires Tort
6.9 Unicorporated Bodies
6.10 Foreign Sovereigns and Ambassdors
6.11 Insolvent
6.12 Convict
6.13 Suggested Questions
6.1 Minors
To emphasis the Indian law regarding minors liability I wish to refer to a case
decided by the Madhya Pradesh High Court reported in AIR 1956 Madh, B, 84 in
which it was stated that a minor is in general liable for his tort in the same manner
and to the some extent as an adult. The rule of exemption from all responsibility for
an act done by a person below certain age has no applicability in conduct tortious in
itself and in its very essence. It is only in those cases where an act is innocent in
itself, but becomes tortious by the addition of some ingredient such as intention,
malise, knowledge or state of mind in the person charged as a wrong doer that the
age and mental capacity of the defendant become relevant.
In the case of violent assault and battery on a harmless man such consideration
as intention knowledge, State of mind an conception of right and wrong are wholly
immaterial the act in itself is sufficient to support the cause of action. The person
committing the assault cannot therefore, contest that he cannot be made liable for
damages because at the time of the commission of the battery he was a minor of
fifteen or sixteen years of age, and did not know the nature and quality of the act or
that what he was doing was wrong.
Under the law applicable in India to contracts a minor is not bound under the
contracts entered in to by him as he is considered as not possessing the mental
capacity to enter into such contracts with full knowledge and understanding regarding
the implications surrounding his act. In the same way an infant of less than seven
years of age is considered. Under the Indian Criminal Law, as incapable of committing
an offence. In respect of children between the age of seven and twelve years no guilt
is attributed to crimes committed by them if the minors had not attained sufficient
maturity to understand or judge the nature of their actions.
 32
Goraly Vs. Codd
An air-rifle negligently handled by a boy of 161/2 years of age went of, in the
result the plaintiff was injured by the shot. The boy was held as liable in tort.
As enumerated in the case law I had quoted at the beginning of this chapter a
minor can escape liability under the law of tort only in respect of those torts for
which intention or malice or knowledge or some kind of guilty mind is a necessary or
essential ingredient without which such injuries will not be considered as giving a
cause of action to the injured. Since law consider a minor as not possessing a
balanced or matured mental state, in such torts, the tender age of the minor is a
good defence.
However if the tort complained of was independent of the contract then the
minor will be held liable provided a state of guilty mind is not an ingredient of such
tort. In the leading case on this rule BURNARD V. HAGGIS, the defendant at 19
years old under graduate of Trinity College hired a horse for riding. Instead of merely
riding the horse he used it for jumping and the horse was injured. Though he would
not be liable for breach of contract he was held liable in tort as his action was held to
be independent of the agreement of hire. His action was stated to be doing an act
towards the mare which was altogether forbidden by the owner.
Ballet V. Mingey
An infant borrowed certain goods from a person and lent them to a third party
who failed to return them. It was urged on behalf of the infant that an action under
tort would amount to indirect enforcement of the contract and as such should not be
allowed. The Court negatived this contention and held the minor to be liable holding
that ‘the action of the appellant (infant) in parting with the goods was one which fell
outside the contract altogether and that BURNARD Vs. HAGGIS is applied.
Jennings V. Rundall
A mare hired by the infant defendant for riding was injured in the course of a
journey. The minor had not used the mare for anything than mere riding. The court
held the minor as not liable in tort as the injury sustained would give rise to only an
action for breach of contract and a mere allegation of malicious or wrongful act will
in no way take the action outside the purview of the contract.
6.2 Parental Liability for Minor’s Tort
As a general rule a parent or guardian of a minor is not liable for the minor’s
torts. To this rule there are two exceptions.
(i) If the minor is employed by his parent or guardian, then such parent or
guardian will be vicariously liable for the minor’s torts committed in the
course of such employment. If the father sends his son on some or business
and gives his horse and cart, and in due course an accident is caused by
the son, the father will be held responsible. In the same way if the father
allows his minor son to act as his chauffeur and an accident is caused due
to the son’s negligent driving, the father will be held vicariously liable. It
should be noted that in such cases the principle is that of master and
servant.
ii) the parent will be held responsible for torts committed by the minor which
 33
would not have accrued if the parent had not been negligent in employing
proper control of the minor. In the case of Beebee Vs. Sales, the father of
the minor who injured the eye of another boy with a gun was held liable in
tort a he had not employed proper control when he allowed his minor son
to retain an air gun even after he had smashed his neighbour’s window by
gun shot. In the case of NEWTON Vs. EDGERLY as minor’s tort in injuring
another with a shot from a shot gun was attributed as the father’s liability
as it was held that he ought to have either prevented the son from having
the gun at all or should have given him very careful instructions as to the
use of the weapon.
Donaldson Vs. Mcniven
A minor injured the eye of another child by gun shot when he went into the
street and fired the gun given to him by his father. On facts the Court held that the
father had taken all parental care and precautions and that the father cannot be
held liable as ‘he cannot be watching his son all day and every day, nor is there any
obligation on him as a parent to do so’.
6.3 Torts of Un Born Children
According to Hindu law a child in womb is entitled to a be share in the joint
family property. A trust or a gift can be made in favour of children in womb or
children to be born. Where a partition takes place without allotting a share to a child
in womb, such partition is liable to be reopened and a share allotted to the male
child out of family properties.
Under the criminal law injury caused to a child is punishable and death caused
to an unborn child in the womb or causing of abortion or miscarriage are defined as
criminal offences.
No case has been decided by any English Court regarding the question whether
a person will have a cause of action in respect of the injury caused while in the
womb, against the person causing such injury.
Watt. Vs. Rama (Australian case)
It was held the plaintiff can sustain an action in tort against a negligent driver
who had involved the mother of the person in an accident while the plaintiff was in
the womb. The court stated that the risk was foreseable by the negligent driver. The
Civil Liability Act 1961 of Ireland provides that wrongs committed on unborn children
shall be treated as if the wrongs was committed to a child already born. In England
there is a move to provide for relief in respect of injuries caused to unborn children.
In India there is no statute and as yet there is no decided case on their issue. I am of
the opinion that as long as the essential ingredients of a tort is made out ; a person
should have a right of a tort feasor in respect of an injury caused while he was in the
womb.
6.4 Lunatics and Drunkards
There is no settled rule or authority regarding the defence on the ground of
insanity or Lunacy. A lunatic is treated on par with an infant based on his mental
incapacity to commit an act, where the essential ingredient is malice or mesn rea
or guilty mind of knowledge. Though in criminal law, the defence of insanity may
 34
hold good, the law of torts recognises this defence only in exceptional cases as
mentioned above. This is based on the principle that in tort the redressal is by
compensation while in criminal law it is punishment.
Morris Vs. Mersden
In the above case the defence of insanity raised by the defendant in an action
for damages for battery was negatived by the court which held that the defendant
was liable as no mental capacity was needed to sustain an action in tort for assault
and battery.
Where the insanity is so advanced that the lunatic cannot understand the nature
and consequence of his acts the same will be good defence even in cases based on
the principle of ‘strict liability’. Where the essential ingredient is an active mental
state like malice or knowledge, the lunatic cannot be held, responsible for any damage
caused.
Drankenness
Though extreme drunkenness is a defence in Indian Criminal Law, the law of
tort does not recognize such defence. However if the drunkenness was induced by
coercion, mistake, fraud or against such person’s will then it may be a defence.
6.5 Married Woman
Until 1935 in England a woman can bring an action only if the husband was
joined as a co-plaintiff, as law considered that she has no existence apart from her
husband. As a husband was a necessary party to an action by a woman in the same
way a husband was held liable for the torts committed by his wife. By the passing of
the Law Reform (Married Women and Tort feasors) Act, 1935 this disability was
removed. A married woman become entitled to sue and to be sued in her own name
and for her own liability.
Until the passing of the Law Reform (Husband and Wife Act, 1932) a woman
cannot be sued by her husband in tort and a woman cannot sue her husband except
for protection and security of her own property. By the passing of the above act his
disability also has been removed.
In India the Married Women’s Property Act 1874 has laid down that a married
woman governed by the Act can sue and be sued in tort in her personal capacity.
Hindus, Buddhists, Sikhs, Mohamedants and Jains are governed by their respective
personal law and not by the above Act. Christians and Anglo-Indians who had followed
the English common Law are governed by the above act. A man is not liable for the
torts committed by his wife according to Indian Law.
6.6 Corporation
Though corporations are artificial persons they possess a legal entity.
Corporations can be divided as ‘corporation aggregate’ and ‘corporation sole’. When
a number of persons or a group of persons come together and form themselves into
a single body recognised by the Law such associations are Corporation Aggregates.
Where an individual due to his office enjoys a composite personality such as the
crown, a bishop. Official Trustee, Official Assignee, Administrative-General, a Major
such entities are known as ‘corporation sole’. To illustrate the law applicable to
 35
corporate bodies.
“Whether a private individual or a corporate body both are subject to tortious
liability.”
There is no statutes in India which expressly provide for cases on torts. The
English common law rules are therefore availed of by the courts as consistent with
justice equity and good conscience.
Under the English common law a corporation is liable to be sued for any tort
provided that (1) it is a tort in respect of which an action would lie against a private
individual (2) the person by whom the tort is actually committed is acting within
the scope of his authority and in the course of his employment as agent of the
corporation and (3) the act complained of is not one which the corporation would
not in any circumstances be authorised by its constitution to commit. The same
principle governs tortious acts in India committed by the corporate bodies according
to the law as administered in India.
In the above case the refusal to grant a licence was held as coming within the
powers conferred under the Madras Municipalities Act. And as such a refusal was
considered as not a tortious act since there was no proof of malice on the part of that
authority.
A corporation can sue in tort as a private individual. It can also sue for
defamation or malicious prosecution or a winding up petition provided damage is
caused to its business or property.
It is now settled that a corporation has no protection in an action for tort. It can
be sued for damages resulting from the tortious acts of its agents or servants caused
by acts committed by them in the course of employment. A corporation is liable as
an individual employer on the principle of vicarious liability. A corporation therefore
is not only liable for negligence, nuisance, trespass or conversion but will also be
liable malicious prosecution and fraudulent misrepresentation.
6.7 Intra Vires Torts
In the case of many of the corporations their memorandum and Articles
enumerate and restrict their powers within the frame work of such memorandum or
Articles. When an act is committed which fall within such powers or incidental
thereto such acts are called intra-vires. Since a corporation has no mind or body it
acts only through its agents and servants. As such all actions of the agents and
servants committed on behalf of the corporation are imputed as action by the
corporations. A corporation also has certain primary obligations to discharge, breach
of such obligations will give rise to tortious liability answerable by the corporation.
As such it should not be construed that a corporation will be liable only in respect
of commissions and omissions of it servants and agents. Where the commission of a
tort by an agent or servants is in the course of employment such co-operation will
be liable on the principle of ‘vicarious liability’.
6.8 Ultra Vires Torts
Acts done beyond the powers conferred on the corporate bodies are termed as
ultra-vires acts. In this connection we will have to consider three types of ultra-
vires acts.
 36
1. A corporation may engage in any act of undertaking which is outside its
statutory or legal limits according to powers conferred on it though such
things may be lawful. In such a situation the corporation will have no
authority to employ persons to carry out such things. As such no valid
contract of service is created between the corporation and the tort-feasor
and hence the principle of vicarious liability does not come to play. In such
a situation the corporation cannot be held liable. Salmond on the Law of
Torts rejects this theory stating that there is however no sufficient authority
for any such exemption of corporations from the consequences of the
disregard of the limits of their powers. It is contrary to practical
requirements and has been rejected in numerous American decisions.
2. A servant appointed under a valid contract may commit a tortious act
while engaged in the commission of an engagement which is ultra-vires of
the company. In such a case also the corporation is held not liable. In the
case of POULTON Vs. L.AND S.W. RLY a station master of a Railway
company which was authorised to arrest a person not paying the fare,
wrongfully arrested a person who had refused to pay the fare for his horse.
It was held that the action of the station master was outside the powers
conferred by the Railway Company and hence the Railway Company is not
vicariously liable for the same.
3. The corporation may itself authorise the commission of a tort. In such
event the corporation will be liable for the tort so committed. The torts so
committed will be directly attributed to the corporation concerned besides
the corporation being vicariously liable. In CAMPBELL Vs. PADDINGTON
CORPORATION the erection of a stand on a highway consequent to a
resolution of the corporation was considered as a public nuisance and the
corporation was held liable. The act of the corporation was held ultra vires
of its powers. Distinguishing Poulton’s case it was held that ‘that (Poulton’s)
case was only an illustration of the principle that where the wrongful act is
done without the express authority of the corporation an authority from
the corporation to do it cannot be implied if the act is outside the statutory
power of the corporation. That principle has no application to a case where
the corporation has resolved to do and has in the only way in which it can
do any act actually done the thing which is unlawful and which causes the
damage complained of.
Tiruveriamuthu Pillai Vs. Municipal Council of Shencotta
The municipal council had authorised the killing of stray dogs. An employee of
the council while discharging his duty had killed the plaintiff’s dog. It was held the
council was liable as it had acted in excess of its statutory powers.
Air 1955 Saurashtra 63
The Bombay District Municipality had put up a permanent construction covering
up a portion of a street thereby blocking the way of the owner of the adjoining land
to the highway. It was held that the action of the municipality is not justified as its
act is not empowered by the law. The owner was held entitled to access from any
 37
angle of his property and as the tort was of a continuous nature it was held that
mandatory injunction for removal of the structure was the remedy and not damages.
The municipality was held liable to remove the structure.
6.9 Unincorporated Bodies
Since an unincorporated body has no legal entity it cannot sue in its name and
cannot be sued. As such an aggrieved person will have to bring action against the
officers or members of such bodies in the personal capacity and cannot sue such
bodies in their unincorporated names. In the case of TAFF VALE RIL Vs.
AMALGAMATED SOCIETY OF RAILWAY SERVANTS, it was held that an action will
lie against the defendant trade union though such union is not incorporated. As this
decision caused great controversy and agitation the Trade Disputes Act, 1906 was
passed nullifying the decision passed in the above case.
Prole Vs. Allea
A member of a club was injured while attempting to climb an unlighted staircase
from which he fell down. It was held that the unincorporated committee of the club
is not liable. The steward of the club was held liable as he was considered as an
agent of each member of the club.
In India a trade union can be sued and can sue according to the Trade Union
Act, 1926. A partnership firm in the same way can sue in its name and can be sued.
6.10 Foreign Sovereigns and Ambassadors
Unless a foreign sovereign voluntarily submits to the jurisdiction of our Courts,
any tort committed by a foreign sovereign is not actionable. The same prevails in
England. The basis is that the dignity of a foreign sovereign should be maintained
and by this a reciprocal immunity will be available for our own sovereign. Further
actions against foreign sovereign will cause injured pride and feelings and may result
in avoidable clashes. Such immunity extends also to department of foreign state
whether or not they have a separate legal entity. In the case of Kranjia Vs. Tass
Agencies Court of appeal held that the Tass Agency is a department of the Soviet
state and recognised the immunity it enjoys in respect of any statement made in its
publications which may otherwise give rise to a cause of action for defamation. Mere
residence of a foreign sovereign within a British or Indian territory will not amount
to waiver of the privilege of immunity. Such waiver should be written and voluntary.
A foreign sovereign is also not liable for an action done in his private capacity. The
remedy available to the injured is only through diplomatic action at Governmental
level.
A foreign sovereign enjoys exemption from the jurisdiction of the local Court,
but is not immune from legal liability for acts done. As such a foreign sovereign can
waive the immunity from local jurisdiction and can submit to the jurisdiction of the
local courts. In SULTAN OF JOHORE Vs. ABUBAKAR TUNKU ARIS BENDOHAS, on
facts of the case it was held that the defendant a foreign sovereign had waived
immunity from the jurisdiction of the local courts.
Ambassadors
As provided under the Diplomatic privileges Act, 1964 not only an Ambassador
or a diplomatic agent, but also their staff and their family members enjoy immunity
 38
from action in a local court by virtue of their office or status. During their term of
office such foreign diplomats enjoy total immunity from the criminal and civil
jurisdiction of the local courts to a certain extent. As per Section 86 of the Civil
Procedure Code, 1908, except with the consent of the Central Government an
ambassador or an envoy of a foreign state, a High Commissioner of a common wealth
country and any member of their staff cannot be sued in any Court of Law.
6.11 Insolvent
An insolvent is liable for his tortious acts and the fact of insolvency does not
give him any immunity in respect of an action in tort against him.
In respect of an insolvent’s right to sue, the law draws a distinction between
torts on his person and torts in respect of his property. Since an insolvent’s co-
operatives vest with the Official Assignee or Official Receiver, damages or
compensation received as redress for injuries caused on such insolvent’s properties
are held to be benefits acquired by the creditors. As such in such cases the right to
sue vests with the Official Assignee or Official Receiver. Any compensation received
for injury to the person or reputation of an insolvent, such as assault, defamation
etc., are held as belonging to the insolvent and he can sue on such torts.
If the tort complained of is in respect of the person as well as the property of the
insolvent then action on such tort in split and the compensation for injury to person
passes on to the insolvent while the compensation for injury to the property passes
on to the official Assignee or the official receiver for the benefit of the creditors of the
insolvent.
6.12 Convict
In India and in England a convict undergoing a term of imprisonment is in no
way debarred from suing on a tort due to such conviction for a criminal offence. He
can sue in tort in respect of injury to both his person as well as to his property.
6.13 Suggested Questions
1. Discuss the tutions liability of a minor with its limitation.
2. Discuss the liability of insolvent person for his tortious act.
3. ‘Infancy is no defence to an action of tort brought against the infant’. - Discuss.
 39
LESSON - 7 & 8

VICARIOUS LIABILITY

7.1 Introduction
7.2 History of Vicarious Liablity
7.3 Who is a Servant
7.4 Casual Development
7.5 Suggested Questions
7.1 Introduction
To start this chapter I reproduce hereunder a part of a decision by our Supreme
court reported in AIR. 1966 S.C. 1697- Sitaram Vs. Santhanu Prasad.
A master is vicariously liable for the acts of the servant acting in the course of
his employment. For the master’s liability to arise, the act must be a wrongful act
authorised by the master or a wrongful and unauthorised mode of doing some act
authorised by the master. But it is equally well settled that if the servant, at the time
of the accident, is not acting within the course of his employment but is doing
something for himself, the master is not liable.
A master is not responsible for the negligence or other wrongful act of his servant
simply because it is committed at a time when the servant is engaged on his master’s
business. The essential element that the wrong must be committed by the servant
during the course of employment i.e., in doing the master’s business ought always
to be present.
The law with regard to agents is the same. The act of the agent will only make
the principal liable if it is done within the scope of his authority. The doctrine that
act of the servant or the agent must be for the master’s benefit cannot be subscribed
to for the word ‘benefit is vague and it is better to adhere to the words’ course of
employment or the scope of authority. It is also doubtful whether the principle can
be further extended by the introduction of the doctrine of implied authority.
The presumption that a vehicle is driven on the master’s business was negatived
because the vehicle was proved to be driven by an unauthorised person on his own
business. The de facto driver was not the driver or the agent of the owner but one
who had obtained the car for his own business not even from the master but from a
servant of the master. The owner would not be liable in such circumstances.
The facts of the above case is that the owner of a car entrusted the same to one
for plying it as a taxi. M. trained ‘C’ a cleaner of the taxi and allowed him to drive the
car to the R T O to undergo a driving test. An accident occurred due to C’s negligence
while the test was conducted. The owner was held not liable as act of M and C were
not within the scope of their respective or even joint employment.
When a person is held liable for the acts of another person due to certain
particular relationship with such person then he is held to be vicariously liable. In
other words ‘X’ who suffers an injury due to the negligence of ‘Y’ may be able to sue
not only ‘Y’ but also ‘Z’ on the principle of vicarious liability since the relationship
between ‘Y’ and ‘Z’ is such that ‘Z’ is held responsible for ‘Y’s acts. The commonest
instance is that of the liability of the master to the acts, of his servant.
 40
7.2 History of Vicarious Liability
During the Anglo-Norman period in England it was held that the master will be
liable to the wrong committed by his servant or slave only if the wrong was committed
under the command of the master or the master had consented to redress the wrong.
After the sixteenth century the master was held to be liable only if the wrong was a
direct result of his command. This was strictly not a vicarious liability as the person
who gives the command is principally liable for the wrongs resulting from his
command. At the end of the seventeenth century Sir John Holt held that the master
was not only liable for damages resulting from his commands but also to those arising
out of implied commands, implied from the general authority given to the servant.
Thus the foundation for the modern law of vicarious liability was established based
on the scope of employment. Though originally it was felt that the relationship of
master and servant was not essential it was the case of REEDIE Vs. LONDON & NORTH
WESTERN Ry. As time passed the basis of ‘implied authority’ gradually changed to
‘course of employment’.
7.3 Who is a Servant?
At first it was thought that the relationship of master and servant is based on
the control the master had over the servant. The theory of control will hold good if it
can be proved that the master can control the mode of service of the servant. This
cannot be the case where the servant is skilled such as a pilot of an aeroplane, a
captain of a ship, a surgeon in a hospital and so on. Where therefore control cannot
be established the existence of a contract of service will be relevant. A contract of
service can be established by proving (a) the master’s right to choose a servant (b)
Payment of wages (c) Control of the mode of doing the work and (d) the master’s right
of dismissal or suspension of the servant.
Lord Denning stated that ‘It is often easy to recognise a contract of service when
you see it, but difficult to say where in the distinction lies’. A ship’s master, a chauffeur
and a reported on the staff of a newspaper are all employed under a contract of
service but a ship’s pilot a taxi-man, and a news paper contributor are employed
under a contract for services. One feature which seems to run through the instances
is that under a contract of service a man is employed as part of the business and his
work is done as an integral part of the business whereas under a contract for services
his work although done for the business is not integrated into it but is only necessary
to it.
According to Salmond ‘A servant is an agent who works under the supervision
and direction of his employer. An independent contractor is one who is his own
master. A servant is a person engaged to obey his employer’s orders from time to
time ; and independent contract or is a person engaged to do certain work but to
exercise him own discretion as to the mode and time of doing it-he is bound by his
contract but not by his employer’s orders. Thus, my chauffeur is my servant and if
by negligent driving he runs over some one in the street I am responsible but a cab
man whom I engage for a particular journey is not my servant, he is not to obey my
orders, he has made a contract with me not that he will obey my directions but that
he will drive me to a certain place ; if an accident happens by his negligence he is
responsible and not I. So, I am responsible for the domestic servant in the house,
 41
but I am not responsible for a skilled man whom I engage to do a certain job in my
house-for example to paint it or to mend a window.
In the case COLLINS Vs. HERTFORDSHIRE it was pointed out that in the case of
contract for service the master can order or require what is to be done while in a
contract of service the master cannot only order or require what is to be done but
how it shall be done.
AIR 1962 Supreme Court 933
While considering the liability of the state for the tortious acts of servants the
Supreme court of India held that the state like any other employer would be vicariously
liable for the tortious acts done by its servants in the course of employment but done
in connection with sovereign powers of the state.
AIR 1959 Punj 297
While considering the concept of vicarious liability the Punjab High Court held
that ‘It is well established that the master is bound by the acts of the servant even if
the act was unauthorised or prohibited provided the act was within the scope of the
service of employment. The Principle is that when a servant does any act which he is
authorised by his employment to do under certain circumstances and does it in a
manner which unauthorised and improper even then the employer is liable for the
wrongful act of his servant.
Hospital Cases
According to the modern trend a surgeon, a radiographer, an anaesthetist though
skilled and though they act without any direction or control from the hospital authority
such hospital authority are held vicariously liable for the tortious acts of such skilled
personnel. This position will hold goods along as they are employed by the hospital
authority and not by the patient himself.
In the olden days it was held that since the hospital authority has no control
over the skilled work of the skilled personnel such authority cannot be held vicariously
liable. It was also held that such authority will be responsible for employment of
competent skilled personnel.
The Court of appeal in England in the case of Gold Vs. Essex County Council
held that the hospital authority was liable for the negligence of a full time radiographer.
Cassidy Vs. Ministry of Health
By the negligent post operational treatment by the surgeon, medical officer and
nurses of an hospital authority the plaintiff loss the use of his hand. Since these
persons were under a contract of service with the hospital, the court held the hospital
authority vicariously liable. The defence that such persons are skilled and that the
authority has no control over them regarding medical work was held untenable.
AIR 1969 Supreme Court 128
It was held in the above case that the hospital authorities are legally responsible
to the patients for due performance by their employees (whether nurses or doctors)
of their duties of professional care or skill like attendance of nurses, supply of proper
food and medicine and the like. Authorities incur liability if the employees act
negligently and cause damage to patients.
 42
They are many instances when a master may lend his servant to another. If
while serving the temporary master the servant commits a wrong, a question may
arise as to which of the two masters will be vicariously liable for the tort of such
servant. The position was clearly brought out in a reported Indian case AIR 1959,
Calcutta 597. The division bench of the Calcutta High Court examined the position
in the above case and the gist of its decision is given as follows : Where the question
is, when A’s servant is sent by A, (Who may be called the general employer) to do
certain work for B (who may be designated ‘the hirer’) and the servant commits a tort
and causes damage to a third party in the course of execution of performance of that
work (A or B) would be liable to the injured third party for the damage done. The
enquiry should be as to which one of them had the right to control the doing of the
work in the course of execution whereof, the tort in question was committed. The
answer would, of course, depend on the facts of each particular case. Same would
be the result of the application of the other test namely, whether the servant had
been transferred or only his services or the use and benefit thereof. The control
being obviously in the temporary employer, where the servant and not merely his
services are lent, the hirer or the temporary master should be regarded as the relevant
master. Such transference of control ordinarily implies transfer of the servant as
distinguished from mere transfer of his services, in which latter case the general
employer retaining the relevant control in his hands, would remain liable. The
resultant position would be the same and in no way different if we act upon the
distinction between cases of skilled and unskilled labour’.
In England position of vicarious liability a hired servant of another was
examined in the case of Mersey Docks & Harboury Board V. Coggins & Griffith
(Liverpool) Ltd. The facts are as follows : B a skilled crane operator was employed by
A as driver of a mobile crane. A lent a crane to C along, with B as the driver. A and C
entered into a contract which provided that B should be the servant of A, that B was
be paid by A and that A alone had the power to dismiss B. By the negligent way in
which B worked the crane while loading ship one X was injured. Though C had the
immediate direction and control of the operations to be executed by B and his
crane he had no control or power to direct as to how B should manipulate the controls
and work the crane. It was therefore decided by the House of Lords that A was liable
to X as the general of permanent employer of B.
Thus a distinction should be crawn on the lending of skilled labour along with
complicated machinery and lending of labour only. Where the machinery as well as
the driver is lent. The control remained with the original master as the servant is
answerable to such master for the safety of the machinery and as such the control of
the servant in respect of the operation of machinery will be with the original master.
Where the labour alone has been lent the inference will be that the hirer has control
not merely to tell the servant as to what has to be done, but also direct of control the
manner of doing it. It was therefore established that the test is as to which of the two
has the control over the servant regarding the method or mode of doing the work.
 43
AIR 1943 PC 63
It was held that when one person has lent his servant to another for a particular
employment, the servant for anything done in the course of that particular
employment must be dealt with as the servant of the man to whom he is lent, though
he remained the general servant of the person who lent him.
AIR 1966 Punab 394
A firm lent its truck and driver to a company for carriage of good of the company.
An employee of the company who was accompanying the goods was injured due to
negligent driving of the truck. The court held that the firm was liable as it had control
over the driver and there was only transfer of service and not control.
Laughter Vs. Pointer
A person hired a pair of horses from a stable keeper to draw his carriage for a
day. The stable keeper also provided a driver. Due to the negligent driving of the
driver the horse belonging to a third party was injured. It was held that the owner of
the carriage was not liable.
Howitt Vs. Bovin (1940)
It was held that there was no relationship of master and servant between a
father and son merely because the father lent his car to the son and that father bad
no interest in the purpose for which the son had borrowed the car and hence held as
not vicariously liable. The son had borrowed the ear to drop his two girl-friends and
another friend at their homes and while doing so the car met with an accident due to
the negligent driving of the son in which his friend died.
Launchbury Vs. Morgans
Though there was a tendency by the court of appeal to hold that a person will be
vicariously liable for damages caused by a member of his family who had borrowed
his car, the House of Lords negatived this contention and upheld the decision in the
Hewitt’s case.
Thus it will be seen that the criteria is whether there was control though the
servant might have been employed for a single transactions or his service was
gratuitous.
Whenever it is necessary to discover whether or not one man is the servant of
another the chief enquiry must be directed towards finding who has the power to
control and it is also essential to know how and by whom a person is paid, by whom
and in what circumstances he may be dismissed. It is in this connection that a
distinction is drawn between a contract of service and contract for service. In deciding
whether a man is the servant of another “the test is whether the servant is transferred
or only the use and benefit of his work”.
A general servant remains the servant of the master who pays him and there is
a presumption against the transfer of that servant as distinct from his services, and
the presumption is all against there being such a transfer. The burden of proof of
such a transfer is a heavy one. It must be proved that there was such a transference
of the servant as to pass the right or authority to control him in the manner of the
execution of the act in question. It is a question of fact involving the whole
 44
circumstances of the case where there has been such a transference of the right or
authority to control. In deciding the question the following things have to be kept in
mind : who is a paymaster, who can dismiss, how long the alternative service lasts,
what machinery is employed.
7.4 Casual Development
Ormrod Vs. Crossville Motor Services Ltd.
A asked his friend B to drive his car from Birkeenhead to Monte Carlo. Due to
negligent driving of the car by B an accident occurred and it was held that A as
owner of the car was liable in respect of damages caused by B’s negligent driving.
When a motor vehicle is involved in an accident the normal presumption is
that the driver is the servant or agent of the owner. However this presumption can be
rebutted. The essential element is that the owner should not have parted with his
right to control another in which case such owner will be liable.
Samson Vs. Altchison
The son of prospective buyer of a car was driving the car while the owner was
sitting next to him. The plaintiff was injured by the negligent driving of the car. The
court held that the injured was entitled to recover damage from the owner of the car
for the injury caused by the driving of the car by the son of the prospective buyer.
Pakrer Vs. Miller
A car in the charge of the owner’s friend was negligently left outside his house.
Though the owner was not present in the car, he was still held liable on the ground
that he had the right of control.
Pratt Vs. Patrick
A and B went for a drive in car along with their friend who was the owner of the
car. A drove the car negligently and caused an accident in which B . When B’s
widow sued the owner for damages, the court held that the owner was liable as he
had not abandoned his right of control though the physical management and
mechanical control of the car was with A.
It should be noted that in cases of casual delegation the essential ingredient is
whether the control passed from the owner to the person to whom the vehide or
machine was delegated. It should also be noted that a superior servant is not the
master of his servant. Same is the position of a Director of head of a Government
Department.
7.5 Suggested Questions
1. What is meant by ‘vicarious liability’?
2. Who is a servant.
 45
LESSON - 8

VICARIOUS LIABILITY (CONTD)

8.1 Course of Employment

8.2 Mistake of Servant
8.3 Common Employment
8.4 Independent Contractor
8.5 Suggested questions
8.1 Course of Employment
The master is not liable for the servant’s tort unless the wrong done falls with
the course of servants’ employment. A tort falls within the scope of employment if it
is expressly or impliledly authorised by the master, or is an unauthorised manner of
doing the thing authorised by the master, or some thing essentially or necessarily
incidental to the thing for which the servant is employed. In due course the ‘Course
of employment’ supplanted ‘scope of employment’. There is no set rule of ingredients
to decide which acts fall within the course of employment.
A wrong may therefore fall within the course of employment if it relates to a
direct authority from the master or is incidental to such authority or is an
unauthorised manner of doing a thing authorised by the master. There can arise no
doubt of the master’s liability for the torts of the servant resulting from a direct
authority of the master. Thus a servant employing an unauthorised mode of doing
what the master had authorised will make his master liable when such authorised
mode of doing a thing causes damage. The master cannot defend that he had only
authorised the doing of the thing but has no control over the manner of doing of the
thing by the servant. In the same way a tort committed by the servant while doing a
thing incidental to the thing authorised will also make the master liable. The basis is
that either the master should have reasonably foreseen that such incidental thing is
essential or that he by authorising a thing impliedly authorises the doing of things
incidental thereto. In the extreme cases it can also be contended that liability arises
since the servant is expected to do a thing incidental to his employment to safeguard
the master’s interest or for benefit of the master in order to carry out his employment.
According to Salmond ‘If a servant does negligently that which he was authorised to
do carefully, or if he does fraudulently that which he was authorised to do carefully,
or if he does fraudulently that which he was authorised to do honestly, or if he does
mistakenly that which he was authorised to do correctly, his master will answer for
the negligence, fraud or mistake.
Carelessness of Servant
CENTURY INSURANCE CO. LTD. Vs. NORTHERN IRELAND ROAD TRANSPORT
BOARD.
The defendant employed drivers for their petrol lorries. One such driver struck
a match to light a cigarette while petrol was being transferred from the lorry to an
underground tank in the plaintiff’s garage. When he threw the lighted match stick
carelessly on the floor there was an explosion and fire in which the plaintiff’s property
 46
was damaged. The court held the transport company liable for the careless act of the
driver done in the course of employment. Though the lighting of a cigarette or
surroundings in which he had done it will amount to a negligent method of
conducting his work.
The carelessness among servants are the commonest instances which give rise
to vicarious liability of the master. So far as the servant was doing a mischief for his
own fun, any tort arising out of negligence or inadvertence in the commission of an
employment will fall within the scope of employment giving rise to vicarious liability
of the master. In the case of STATON Vs. NATIONAL COAL BOARD it was held that a
first-aid attendant at a colliery cycling across his employer’s premises to collect his
wages from an office is acting within the course of his employment.
Wilful wrong or Disobedience of the Servant
A master will not be liable for acts done by the servant which acts the master
had specifically prohibited him from doing. This defence will not be available if the
prohibitation was only in respect of the mode or manner in which to perform the
employment. The act itself should have been prohibited by the master as one for
which the servant has not been employed. If the servant was employed to do A and
B C and was prohibited from doing D and E the master incurs no liability if a tort is
committed by the servant who had disobediently done D or E. Thus a distinction is
drawn regarding the defence available to a master when the prohibition is regarding
the sphere of the employment and the mode of performance. In the former the fact of
prohibition is a good defence while in the latter case such defence will not be available.
Limpus Vs. London General Omnibus Co.
The company had printed instructions to its drivers not to race with, or obstruct
other omnibuses. The plaintiff’s omnibus met with a collision when the driver of the
defendant company obstructed the plaintiff’s bus in disobedience of the orders. When
the plaintiffs sued the defendants for damages to their bus, the defendant company
was held liable as what the driver did was merely a wrongful, improper and
unauthorised mode of doing an act which he was authorised to do namely to promote
the defendant’s business.
Canadian Pacific Railway Vs. Lockhart
The company issued orders prohibiting their employees from using uninsured
cars. A servant in disobedience of such orders drove his own uninsured car for the
purpose of the employment. The Court held the employers liable for an accident
caused by that servant and negatived the defence of prohibition. Here the servant
was not prohibited from driving the car. As such the prohibition was not of the scope
of employment but the mode of doing the work.
London Country Council Vs. Cattermolss (Garages) Ltd.
The defendants owners of a garage employed a person as a general hand with
duties to assist in moving vehicles by pushing them. On the occasion in order to
move a van the employee, who did not know driving, got into the van and drove it
and caused an accident to the plaintiff’s motor van. The court held the defendants
liable and negatived their contention that the employee was expressly forbidden to
drive the vehicles. It was held that as his work was to move vehicles, it was not
 47
possible to limit the scope of his employment and that the thing prohibited was within
the scope of his employment.
Twien Vs. Bean’s Express Ltd.
A driver was expressly prohibited from giving lift to strangers and a notice was
put up in the van that unauthorised persons are not allowed inside the van. Inspite
of this the driver gave a lift to a person and in an accident the passenger was killed.
In an action for damage due to death against the owner it was held that he was not
liable as he owned no duty to the deceased passenger. The Court held that the act of
the driver did not fall within the course of his employment.
Conways Vs. George Wimpey & Co. Ltd.
In the above case the court held that the act of the driver in giving lift to the
plaintiff was outside the scope of his employment. It further held that his act was
not one for which he was employed and that it cannot be said that was a wrongful
mode of performing his duty. As such the court held that the employer was not liable
to the injured unauthorised passenger.
Deviation Cases
There may arise occasions when a driver deviates from the route he has to take
in order to fulfil his duties, and drive in another way for his own purpose. The
question as to the master’s liability will arise if any accident is caused in the deviated
route. Each case will depend in its own facts and the test would be as to how far the
deviation had occurred. If he was deviating against the master’s implied command
but only for the master’s business then the master will be liable. If on the other hand
the deviation is for his own purpose or in other words is for frolic of his own, then the
master will not be liable.
Mitchell Vs. Crassweller
A driver instead of locking up the horse and care in the stables at the end of the
day took the same for his own purpose without the owner’s consent. The master was
held not liable for the injury caused to the plaintiff by the negligent driving of the
cart by driver while he was driving the cart for his own purpose.
Atchison V. Pege Motors Ltd.
The defendant sent the plaintiff’s car to the manufacturers for certain repairs.
Subsequently they sent their servant to fetch the car. The servant instead of driving
the car directly the cark used it for his own purpose and took some friends for a ride
and while doing so caused an accident in which he was killed and the car was
damaged beyond repair. The court held that defendants were liable to compensate
the plaintiff for the damages to the car holding that the servant was acting within the
course of employment which was to fetch the car back.
Storey Vs. Ashton
A driver of a car deviated from the route which would take him back to the
employer’s office in order to pick up some of the employees. While on the deviated
route an accident occurred. The master was held not liable as the deviation was
considered as a new journey and as it was not carrying out the master’s employment.
 48
Beard Vs. London General Omnibus Co.
The driver parked the bus at the end of the journey and went for his food. The
conductor in order to reverse the bus for the return journey drove the bus and caused
an accident. The owners were held not liable as the conductor was not the person
authorised to drive the bus.
Biharilal V. Surender Singh
The driver of a lorry allowed the cleaner to steer the lorry by handing over the
steering wheel while he sat next to him. Due to negligent steering an accident was
caused and the court held that the owner of the lorry was liable.
Ganga Sugar Corporation Vs. Suklehir Singh
A driver of a jeep left the vehicle with the ignition keys in jeep itself. A stranger
drove the jeep and caused an accident. The Supreme court held that the owner was
liable as the driver was in the course of employment when he left the vehicle and
should have anticipated mischief by a third party when he negligently left the ignition
keys.
Nalini Rajan Sen Gupta Vs. Corporation of Calcutta
A driver while taking the owner’s car for repairs, finding the road block, left the
car in charge of the cleaner who drove it negligently and dashed it against a municipal
lamp post and broke it. The court held that the cleaner’s act was beyond the scope
of his employment and the driver was not negligent in leaving the car in the
circumstances of the case and decided that the owner was not vicariously liable.
Servant’s Fraud
As in the case of the wrongful acts of the servant, a master is liable also in
respect of frauds committed by the servant in the course of employment.
Lloyd V. Grace smith & Co.
A clerk employed by the defendant firm induced by fraud the plaintiff to transfer
her property in his favour. The court held the defendants liable as it found that his
act fell within the scope of his employment by the way in which the clerk was placed
in the defendants firm and which position enabled him to commit the fraud.
Uxbridge Permanent Benefit Building Society Vs. Pickard
Though a clerk of a solicitors firm was authorised to run the office it was not
within his authority to commit a fraud. However the circumstances in which he was
placed made such of his acts within the ostensible authority which came within the
business conducted by a solicitor. The court held that ‘so long as he is acting within
the scope of that class of act, his employer is bound whether or not the clerk is
acting for his own purposes or for his employer’s purposes.
Where the servants fraud did not all within scope of his authority, actual or
ostensible, then the master cannot be held liable.
Theft by Servant
The master will be liable for theft committed by his servant in respect of the
goods entrusted to him as this would amount to dishonest performance of what he
was employed to do honestly.
 49
Morris Vs. C.W. Martin & Sons Ltd.
X to whom the plaintiff entrusted her fur coat for cleaning entrusted the same
to the defendants with the plaintiff’s permission. The defendants who mere specialist
cleaners entrusted the fur coat to ‘M’ their servant, for cleaning. When M stole the
coat, the court held the defendants liable for the theft by their servant. Thus the
decision in CHESHIRE Vs. BAILEY that the master will not be liable for the servant’s
thefts was overruled.
Ruplal Vs. Union of India
Military jawans lifted wood belonging to the plaintiff and carried it through
military vehicles for purposes of camp fire. The court held that the Union of India
would be liable, for the act done jawans should be construed as done in the course
of the employment.
8.2 Mistake of Servant
BAYLEY Vs. MANCHESTER SHEFFIELD AND LINCOLNSHIRE RLY.
The plaintiff was violently pulled out of a train going to Maceles field, by the
defendant’s porter even though the plaintiff said that he was going to that place. The
porter had mistaken that the train was going elsewhere. The defendant railway
company was held liable for the mistaken act of the porter as it was doing in a
blundering way something which he was not authorised to do.
Poland Vs. Parr (John) & Sons
A wagon transporting sugar was followed closely by the defendant’s car. A boy
walking by the wagon had put his hand on one of sugar bags. The porter thinking
that the boy was stealing sugar struck him. The boy fell down and a wheel of the
wagon ran over his foot. The court held the employer liable as the act of the servant
cannot be held outside the scope of his employment, though the blow was excessive.
Liability of the Government for its Servants - Torts
A Government has sovereign functions and commercial functions. By the decision
in P & O STEAM NAVIGATION CO., Vs. THE SECRETARY OF STATE FOR INDIA IN
COUNCIL it was laid down that the Govt. was liable for torts committed by its servants
in performing commercial functions. The basis being that such functions can be
performed by a private individual.
STATE OF RAJASTHAN Vs. VIDYAWATHI, AIR. 1961 S.C. 933
Smt. Vidyawathi’s husband was knocked down by Government jeep. The jeep
was being driven from the repair shop to the Collector’s house. The court held the
government liable for the rash and negligent driving of the jeep by the employee of
the government. The rule as laid down in P & O Steam Navigation Co. was followed.
Kasturilal Vs. State of Uttar Pradesh Air 1965 S.C. 1039
Distinguishing this case from Vidyawathi’s case the court held that officer
concerned was doing an act which is directly in the performance of sovereign
function of the state and held the Govt. of Uttar Pradesh not liable.
8.3 Common Employment
The doctrine of common employment has now been abolished in India by the
amendment of the Employer’s Liability Act 1938 in 1951.
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In the earlier days it was held that the master is not liable to a servant who was
injured by the wrongful act of a fellow servant who at that time was in common
employment with him. In 1837 the decision in Priestely Vs. Fowler held that the
employer was not liable to his employee for injury caused by the negligence of another
employee. It even went almost to the extent that an employer might not be liable to
his workmen on and ground. In England the doctrine of common employment was
abolished by the passing of the law Reform (personal injuries) Act 1948 and the
employer became liable to his servants in respect of torts committed on him by
another servant. The National Insurance (Industrial Injuries) Act 1946 which came
into force in 1948 denied the employer the defence of contributory negligence as
against the injured servant.
8.4 Independent Contractor
In general a person is not liable for the torts committed by an independent
contractor employed by him
1. However a person who employs an independent contractor will be liable if
the contractor was employed to do an illegal act in which case the contractor
and his employer will be liable as joint tort Feasors.
2. The employer of an independent contractor will also be liable for wrongs of
the contractor if he had negligently employed the contractor for discharge
of duties which are to be carried out properly or with due care. In such a
situation the employers will be guilty of negligence and will be liable on
such a ground. Where there is statutory duty in the employer and the
independent contractor omits to carry out such duty the employer will be
liable and he cannot plead that it is not his wrong but that of the contractor.
Gray Vs. Pullen
A statute directed the defendants to cut a drain across of highway but imposed
at the same time a duty to reinstate the road properly after the drains were laid. The
defendant employed an independent contractor to do the job who had negligently
and improperly laid the road after completing the drain work. In the result of passenger
on the highway was injured. The employer defendant was held liable although he
was not negligent.
Bower Vs. Peate
An independent contractor employed by the defendant to do certain construction
work on his land undermined the support for the plaintiff’s adjoining house. The
defendant was held liable.
When a danger is caused on the highway by the negligence of an independent
contractor, his employer will be liable for the resultant damage. In the case of TAMS
Vs. ASHTON an occupier of a public house which was situated by the side of a highway
had provided a heavy lamp attached to the building. Due to the negligence of an
independent contractor who was engaged to maintain the lamp the same broke and
fell on the plaintiff and caused injury. The Court held the employer liable holding
that by the contractor’s negligence the occupier has failed to discharge his duty.
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Where a person employs an independent contractor to do a dangerous or extra
hazardous work then such employer will be liable for any damage caused by such
dangerous work. In the case of BLACK Vs. CHRIST CHURCH FINANCE CO., the
defendant who had employed an independent contractor to burn scrub were held
liable for damages caused to the plaintiff’s adjoining property by the spreading of
fire. In the case of HONEY WILL & STEIN Vs. LARKIN BROS, it was held that the
plaintiff who employed the defendants as independent contractors to take
photographs of X’s cinema by flashlight were held liable for the defendant’s negligence
in setting fire to X’s cinema.
A person may employ an independent contractor to do a certain kind of work,
which when done, would be at the peril of the employer. Such may be the work or job
that is may give rise to strict liability as in the case of Rylands Vs. Fletcher. In such
situations the employer cannot plead that the act is that of the independent
contractor. The employer will be liable if any damage is done as a result of such
work.
8.5 Suggested Questions
1. What is meant by “in the course of employment”.
2. Who is ‘independent contract’? Whether a person is liable for the torts committed
by an independent contractor employed by him.
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LESSON - 9

JOINT TORT FEASORS

9.1 Introduction
9.2 Independent tort feasor
9.3 Liability
9.4 Rule Against Contribution
9.5 Exception
9.6 Judicial Remedy
9.6.1 Damages
9.6.2 Injuúction
9.6.3 specific Restitution of Property
9.7 Extra Judicial Remedy
9.8 Irrevocable Damages
9.9 Suggested Questions
9.1 Introduction
There had arisen and will arise in future instances where two or more breaches
of duty by different persons causes the plaintiff to suffer a singly injury. In principle
the plaintiff in such case will be entitled to recover his damages in full from any or all
of them. When more than one person is involved as above they together will be called
as joint tort-feasor. In the case of the Kou sk joint torifeasons were defined as ‘persons
are said to be joint tortfeasors when their respective shares to the commission of the
tort are done in furtherance of a comman sign -- There must be consented action to
a common end”. According to Sargeant L.J. “There must be a concurrence in the act
or acts causing damages not merely a coincidence of separate acts which by their
conjoined effect cause damages. As such two or more persons will be joint tortfeasors
when their action was of a common design and they should have acted concently or
together towards such do the same thing.
9.2 Independent Tort feasors
It was held that where two ships collided due to negligence of each and the one
of them without negligence, collided with a third ship, the third ship’s owners had
independent cause of action against the two negligent ships. The basis is that there
was no common design between the two negligent ships but their acts had combined
to produce a single damage. It should therefore be seen that to term the wrongdoers
as joint tortfeasors a single damage done is not sufficient, but there should have
been a common design to cause such damage.
Brooke Vs. Bool
Two men were for a searching gas leak. Each one of them in turn applied a
naked light to a gas pipe. One such light caused an explosion. Both of them were
held to be joint tortfeasors.
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Thompson Vs. London Country Council
A caused damage to plaintiff’s house by excavations. But aggravated the damage
by leaving a water main not closed properly. It was held that there was no common
design, A and B were therefore independent tortfeasors as their acts were
independent . The damage is the same while the cause of action was separate against
each. It is therefore essential that there must be a common design to club two or
more persons as joint tortfeasors in respect of a single damage.
Besides persons being joint tortfeasors by virtue of joint action by them in
pursuance of common cause there are two other occasions when joint liability may
arise though there might not have been a common or general design.
a) Vicarious Liability
A master will be vicariously liable on the torts of the servant committed in the
course of employment. Though there may not be common design the act of servant
implies such common purpose as he acts for the betterment of master’s business.
The master and the servant will be joint tortfeasors.
b) Agent
As seen in the previous lessons an employer of an independent contractor will
be liable along with the contractor in respect of certain torts committed by such
contractor. An agent committing a tort under certain circumstances will make the
master also liable. In such cases the employer and the independent contractor or
the principal and the agent will be joint tortfeasors.
9.3 Liability
The liability of joint tortfeasors are joint and several. Consequently the injured
person is entitled to use each of them separately or all of them jointly. Each joint
tortfeasors is liable for the full compensation.
Brinsmead Vs. Harrison
A rule was laid down in the above case that once a person obtains a decree
against one joint tortfeasor by suing him alone, such person is estopped from suing
the other tortfeasors. In the case one B sued H for recovery of the price of a piano. B
had earlier obtained a judgement against T who was joint tortfeasor along with H. B
had now sued H as the decree against T remained unsatisfied. The court held that B
cannot obtain a judgement against H as B had already obtained a judgement on the
same injury or damage. The rule was based on the doctrine of avoidance of
multiplicity of litigation.
As per the common law a judgement against one of the joint tortfeasors amounted
to release of the other tort-feasor. It was also felt that there can be only one action or
suit on a single injury or cause of action and judgement against one acted as an
estopped against action against the others. To overcome this hardship the Law Reform
(Married Women and Tortfeasors) Act, 1935 was passed according to which action
against one of the joint tortfeasors is no bar for any subsequent action against the
other joint tortfeasors liable for the same damage or injury. However it was provided
that any subsequent action should not be for a claim higher than that for which the
first action was initiated. Award of costs of subsequent litigations was at the
discretion of the courts.
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9.4 Rule Against Contribution
A tortfeasor who had satisfied the claim of the injured cannot seek contribution
from the other tortfeasors who are jointly liable along with him as joint tort-feasor.
This rule of common law is based on the maxi ‘Exturbi causa non oritur action’
which means that no cause of action will arise out of a turpitude. A wrongdoer is
therefore held as liable to bear the consequences of his tort. A contribution would
mean an implied contract to commit the tort and share the profits or loss as it may
happen.
The above rule was laid down in the case of Merryweather Vs. Nixon. Two persons
jointly destroyed the machinery of the plaintiff. Though the plaintiff obtained a
judgement against both, he recovered the compensation awarded from only one
defendant. The defendant who had to pay the full compensation sued the other
defendant for contribution. His action was dismissed by the court which held that
there is no question of contribution amongst joint tortfeasors.
9.5 Exception
1. The Maritime Conventions Act 1911 provided that where damage occurred
on board a vessel due to negligence of two ships, then the owner of a ship
who had paid in excess of the proportion of damages he was liable for, can
recover the excess from the other ship owner.
2. As per the provision of the Companies Act in England before 1948, a
director who was liable for false statement in the prospectus can recover
contribution from other persons also responsible for such false statement.
This provision was repealed by the Companies Act, 1948.
Since the rule against contribution as laid down in the Merryweather case was
felt harsh and the correctness of the rule itself was in doubt later decisions laid
down that contribution is not permissible only in cases where the paying defendant
was fully aware of his wrong doing. It was thus held that where the tort is not wilful,
contribution among the joint tortfeasors is permissible.
Adamson Vs. Jarvis
The plaintiff an auctioneer sold certain goods in auction when the defendant
represented the goods belong to him. It turned out that the defendant was not the
true owner and the true owner can recover the value of the goods from the plaintiff.
The plaintiff was held entitled to recover the amount he paid to the owner from the
defendant.
The rule in Merryweather’s case was overruled by the passing of the Law Reform
(Married women and Tortfeasors) Act, 1935. By the provisions of this act a tortfeasor
could recover contribution from any other tortfeasor who is also liable in respect of
the same damage whether he is a joint tortfeasor or otherwise. The act further provides
that “the amount of contribution recoverable from any person shall be such as may
be found by the court to be just and equitable having regard to the extent of that
person’s responsibility for the damage”. The word responsibility, would mean the
extent of damage each wrongdoor had caused. The extent of apportionment depends
on the extent of damage caused by each and there is no fixed rule or proportion.
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It should be noted that for one joint tortfeasor to claim contribution from another
joint tortfeasor, the other joint tortfeasor should be also liable to the injured plaintiff.
For any reason if the joint tortfeasor cannot be held liable to the plaintiff, then the
tortfeasor paying the compensation cannot claim contribution from the other joint
tortfeasor.
Drinkwater Vs. Kimber
The plaintiff suffered injury by the combined negligence of her husband and D.
She recovered the full compensation from D. The Court had that D cannot claim
contribution from the husband as at that time husbands were not liable to their
wive’s for torts committed on them.
The Act of 1935 provided further that a wrong doer is not entitled to claim
contribution from a co-wrong doer or whom he is bound to indemnity. Where an
innocent person is induced to commit a tort he will not be liable to contribute to the
paying wrongdoer. A master cannot recover contribution from the servant on the
ground that he had been vicariously liable. However an innocent master who is
made to pay damages for the servant’s tort can recover the entire amount he had so
paid from the servant.
Lister Vs. Ramford Ice Co.
A father and son were employed by the same person. The father was injured by
the negligent driving by the son. The father sued the employer and recovered damages
which was paid by the insurer. The insurers in their turn sued the son for recovery
of the amount paid by them. The Court of appeals held that the insurers were entitled
to recover the amount from the son. The court stated though the son and the employer
were joint tortfeasors, the employer was innocent and hence entitled to recover the
compensation paid from the servant namely the son. The House on appeal confirmed
the judgement.
Independent Tort feasors
The Act of 1935 has not changed the common law rule that successive actions
can be initiated against individual tort feasors. However the rules as applicable for
joint tortfeasor in respect of the amount of compensation and costs apply for
independent tortfeasors also.
As per the common law of England release of one tortfeasor will release all other
joint tortfeasors also. The basis is that the cause of action on a tort is indivisible.
INDIAN LAW
Dharni Dhar Vs. Chandra Shekhar (AIR 1951 Allahabad 774 )
The Allahabad High Court has held that contribution is permissible among joint
tortfeasors.
The full bench of the said High Court while deciding the above case held that.
‘The rule laid down in the English case of MERRYWEATHER Vs. NIXON, which is
formulated in these terms, namely there is no contribution among joint tortfeasors
and wrongdoers, had no application to cases arising in India’.
While delivering the judgement Justice Agarwal stated that “Even in the case
of conscious tortfeasors, contribution should be allowed where the facts warrant
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the same. This should be so whether a joint decree has been passed against the joint
tortfeasors or not. Contribution is to be allowed as between conscious tortfeasors
not upon the principle of implied agreement but upon equitable considerations.
The mode of calculating the amount of contribution depends upon the facts of each
case.
The Supreme Court of India in the case of K.S.GANTHI Vs. N.A.GUZDER reported
in AIR, 1979 S. C. 1468 held that where a suit is filed against a number of persons
as joint tortfeasors, compromise between the plaintiff and one of the defendants will
not release the other joint tortfeasors, if the decree or claim of the plaintiff has not
been fully satisfied.
Remedies
A persons affected by a wrong and who thus acquires a right to a remedy in tort
can exercise the remedy through a court of law or outside a court. The former is
called judicial remedy and the latter is known as extrajudicial remedy.
9.6 Judicial Remedies
A person may sue in tort for (1) damages (2) injunction and (3) specific restriction
of property.
9.6.1. Damages
Damages can be claimed as general damages or special damages. General
damages are what the court can infer from the kind of tort committed and it is awarded
as a normal consequence of the act complained of special damages are what the
plaintiff alleges to have suffered and the burden of proof lies with the plaintiff. In an
accident the plaintiff had suffered loss of pay and had incurred medical expenses
and legal expenses then these special damages claimed should be specifically proved
by the claimant.
In arriving at the quantum of damages the courts generally award compensation
in such a way to restore the position of the plaintiff as its was just before the tort was
committed. If for instance a scooter is damaged, the tort-feasor is made to restore
the vehicle as it was before the accident or if it is completely damaged beyond repair
then the defendant will have to reimburse the value of the same. Where an injury is
caused then the terms of compensation will be what the court judge to be fair and
reasonable, as in such cases there can be no fixed rule by which to calculate the
loss or damages.
Kinds of damages
1. Nominal Damages
Where there is an infrlingment of a legal right without there being any loss or
injury the court award what is known as nominal damages. The courts recognize
the tort committed but award only nominal damages as the injured should not be
unnecessarily profited by such action. Trespass, some types of defamation where
the plaintiff had not incurred any loss are some of the instances where a court may
award nominal damages. Usually in India you will find that courts recognizing the
tort will award a rupee as damages.
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2. Contemptuous Damages
A Plaintiff might have sued on a tort based on some technicality though he
himself would have been guilty of some other infringement. He might have come to
court with uncleans hands. Court do not approve such action where but for the
technicality no action could have been initiated. At such instances courts will award
what is known as contemptuous damages which will be nominal. Usually as in the
case of nominal damages courts may award a rupee as damages.
Exemplary or Deterrent Damages
Damage may be awarded as a deterrent to tortfeasors whereby the court express
their displeasure at the ugly or immoral conduct of the tortfeasors. An immoral
assault on a lady in a public place seducing girl students, Molesting minors especially
girls are some of the cases which courts dete, and award very high amount of
compensation as a lesson to the tortfeasor and as a deterrent to persons who may be
contemplating such mischief or conduct. Usually the feeling of the person abused or
insulted is given a solace by award of such vindictive damages.
Actual or Real Damages
When the loss can be mathematically calculated and there arises no other damage
such as damage to reputation or breaking one’s feelings the courts will award only
real or actual damages. As said earlier where a vehicle is damaged beyond repaire
the compensation will be its value. The plaintiff can claim nothing more and the
defendant will be asked to pay nothing less than actual value or loss.
9.6.2 Injunction
Injunction can be mandatory or prohibitory. Mandatory injunctions are granted
directing a person or an authority to do a certain thing which such person or authority
is legally bound to do. Prohibitory injunction is granted in order to present a person
or authority from committing, continuing or repeating an unlawful act or breach of a
duty. Where the authority is the Government or Quasi-Government a person may
bring a writ of mandamus or writ of prohibitation. Section 36 to 42 of the Specific
Relief Act, 1963 of India provides for injunctions.
Injunctions are sought usually to prevent a person from doing any damage or
continuing any infringment. As such when a person files for perpetual injunction
usually an inter-locutory application is taken praying for temporary injunction so
that once a temporary injunction is passed the impending or continuing wrong is
arrested and the court can decide the rights of the parties at a later date. Ultimately
once the suit is heard the court on the merits of the case passes either a perpetual
injunction or dismisses the suit and vacates the temporary injunction granted.
When the plaintiff proves an impending damage or irreparable loss by an
imminent tort to be committed by any person the court passes what is known as a
quia-time injunction restraining the commission of such tort.
9.6.3. Specific Restrictions of Property
Where a person is dispossessed of immovable or movable property the usual
remedy is for an action for restitution of property unless such property has been
destroyed by the wrong doer in which case the action will be for real damages.
Section 7 and 8 of the Specific Relief Act of 1963 provides for an action for restitution.
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9.7 Extra-Judicial Remedies
1. Expulsion or Ejectment
When a person unlawfully trespass over a land in your possession you have a
right to physically expel or eject such person. The right to ownership is not necessary
to exercise such right of ejectment. A right to immediate possession is enough.
However it should be noted that the force employed to expel person from the property
should not be in excess of force necessary and such right will cease once the trespasser
leaves the property or is successfully ejected.
2. Re-Entry on Property
If you are unlawfully or forcibly dispossessed or expelled from your land you
have a right to peacefully retake the land or use reasonable force to re-enter such
land. Such force used for re-entry should be reasonable and limited for the purpose
of re-entry.
3. Re-Caption of Goods
Unlawful dispossession of a person who has a right to immediate possession of
the same will give such person a right to seize the said goods from the person
dispossessing the said goods. The affected person has a right to pursue the wrong-
doer and forcibly take possession of the goods. However the force used should be
reasonable and not excessive.
4. Abatement of Nuisance
Every person affected by a private nuisance has right to abate it or remove it. A
person has a right to break a gate obstructing his right of way or cut the branches of
the neighbour’s tree which overhangs into his property. However by such action of
abatement the person exercising such right should not be benefited to the detriment
of the other. As such when you cut the branches you should hand over the same to
you neighbour.
5. Distress Damage Feasant
If you find a cow grazing you crop or your garden you have a right to seize and
detain it until the owner of the cow adequately compensates your loss or the damage
caused. You have a right to detain it until the loss is paid. The right is called distress,
damage feasant. However your right as above ceases once the cow leaves you land.
You cannot pursue it and capture once it goes out of your land. This right should be
exercised while the animal is on your land.
9.8 Irrecoverable Damages.
1. In cases of ‘damnum since injuria’ damages cannot be recovered. This has
already been discussed.
2. In cases where the damnum was suffered by one person and injury by
another, damages cannot be recovered. Here the basis is that the defendant
had not violated or infringed any duty he owed to the plaintiff. In the case
of Gattle Vs. Stockton Waterwork Company the court held that the plaintiff
was not entitled to damages as he had not suffered any injury of his rights.
The facts are as follows: B while doing some water works on his land allowed
some water to overflow on A’s land. The plaintiff who had contracted for a
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certain sum to construct a tunnel on A’s land incurred additional
expenditure as a result of the overflow of water from B’s land. He therefore
brought an action for damages against B. The Court held that the injury
was suffered by A and not by the plaintiff though as a result the plaintiff
suffered damages. The court held that the plaintiff was not entitle for
damages.
3. The law does not recognise certain torts and as such the injured is not
entitled to any damages. Under the English common law damages cannot
be recovered for the death of a person. In case a statute proves for a cause
of action for an injury, the plaintiff should not only prove damages but
also that he is a member or class or group of persons for whose benefit the
statute had provided such remedy.
4. Damnum too remote. Remoteness of Damage
Where the damage suffered is too remote the law will provide no compensation
or redress. We shall deal regarding this in detail in a separate chapter.
9.9 Suggested Questions
1. Define ‘Rule Against Contribution’ and state the exception.
2. What are the remedies available for a persons affected by a wrong of another
person.
3. What are the different types of damaged available for infringement of Legal right?
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LESSON - 10

REMOTENESS OF DAMAGE

10.1 introduction
10.2 Unintended Consiquences
10.3 Intervention of Natural Event
104. Novus Actus Intervenians
10.5 Wilfule Wrong Doing
10.6 Negligent Act
10.7 Novus Actus and Contractual Obligation
10.8 Intervening Acts in Pursuance of duty
10.9 Anticipated Intervening Acts
10.10 Intervening Act not Causing Loss
10.11 Plaintiff in Alternative Damage
10.12 Act Done to Mitigate Loss
10.1 Concurrent cause
10.14 Exception to Above Rule
10.15 Merger of Tort With Felony
10.16 Suggested Questions
10.1 Introduction
Though an injury or damage was the direct consequence of an act to succeed in
an action for damages it should be proved according to balance of probabilities that
the breach of a duty was one of the causes of the damage. Failure to prove will be
fatal to the claim. Where there is a chain of causes between the wrongdoer’s act and
the injury, such injury must be directly connected by the chain with the act. Though
the chain or happenings are natural and probable consequences they cannot make
the wrong doer liable without limit unless such happenings are immediate and
necessary consequence of the act and which happenings could have been reasonably
foreseen. Generally the law of tort recognizes liability only if the cause was a direct
consequence of the act and not a remote cause.
In the beginning when this rule of remoteness was taking shape the view was
that ‘consequences are too remote if a reasonable man would not have foreseen
them’. It is not necessary that the wrong doer should have foreseen such damage. It
will suffice if a reasonable man could have foreseen such consequences. Thus the
questions that will arise is whether the plaintiff owed the defendant a duty, and if
such a duty was broken whether consequence was too remote. These questions are
to be answered to fix the liability of the wrong doer.
Re Polemis Case
Under a charter a ship was hired. As per the agreement the shipowner and the
charterer were not liable for loss by fire. Along with other cargo the charteres also
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loaded benzine in tins. While the ship sailed the tins leaked and a great deal of
benzine vapour was in the held. When the ship called at a port the stevedores who
were the servants of the charteres negligently let a plant drop into the hold. The
benzine vapour ignited and by the resultant fire the entire ship was destroyed. Since
the exception value did not provide for destruction by fire by the negligence of the
servants the charteres were held liable for a loss of £ 200,0000. It was held that the
fall of the plank was a direct consequence of the negligence on the part of the servants
even though they could not have reasonably anticipated such cause. Lord Scrutton
defined direct consequence by saying that damage is indirect if it is due to the
operation of independent causes having no connection with the negligent act, except
that they could not avoid its results. Thus it can be seen that when damage is a
direct consequence of the act unforeseability is immaterial. If the act was wrong
then the wrong doer will be liable for all consequences of his act.
Lord Summer once stated that ‘What a defendant ought to have anticipated as a
reasonable man, is material when the question is whether or not he was guilty of
negligence that is want of due care according to the circumstances. This however
goes to culpability and not to compensation’. Thus this doctrine is to decide the
liability or responsibility of the wrong doer.
In an earlier decision in the case of SMITH Vs. L & S. W.RLY. the court had
observed once an act is held to be negligent on the basis that injury to someone is
foreseeable then any person directly injured can recover damages though it, is
unforeseeable that he might suffer damages in any way. This is in conflict with
tortious liability for which the basis is in fringement of duty owed to the injured.
Thus the injury to be actionable be a direct cause of the act and if the
consequence of the defendant’s act was only an indirect cause, the damage will be
considered too remote and irrecoverable.
Liesbosch Dredger Vs. Edison S.S.
The dredger Liesboach was sunk by the negligent navigation of Edison. The
dredger owners were in contract with a third party to do some work. Since they were
poor they were unable to buy another dredger and as such were put to great expense
in fulfilling the contract, in time. They brought an action against the owners of
edison for negligence. The House of Lords held that they could cover as damages
the market price of a dredger comparable to the one destroyed and compensation
for loss in carrying out the contract from the time the dredger sank to the time when
another dredger could have been reasonably employed, but THE CLAIM FOR EXTRA
EXPENSES DUE TO POVERTY WAS REJECTED AS SUCH SPECIAL DAMAGES WERE
TOO REMOTE. While the court held that “the former class of circumstance goes to
the extent of actual physical damage and the latter consideration goes to interference
with profit earning capacity, whereas the appellant’s want of means was, as already
stated, extrinsic’ it distinguished the case of re Polemis as one which was decided
on the ground that the injuries suffered were “the immediate physical consequences
of the negligent act.
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Thurogood Vs. Van Den Burghs and Jurgens
In the above case the court of appeal pointed out the when negligence has been
proved and thereafter remoteness of damage is being considered the test to be applied
will be the directness of causation and not forcibility of damage. The court thus
holding that the rule in Re Polemis had not been overruled observed that “The actual
damage may be wholly different in character, magnitude or in the detailed manner
of its incidence, from anything could reasonably have been anticipated”.
In this case the plaintiff a trained mechanic while dismantling a fan was seriously
injured by the revolving blades. The defendant employer was held liable on the ground
of reasonable anticipation of some injury, though the plaintiff could not have
anticipated such trained mechanic to get injured.
Overseas Tankship (U.K. Ltd. Vs. Moris Dock Engineering Co. Ltd. The Wagon Mound
Case No.1
O.T. Ltd. were chaterers by demise of “The Wagon Mound” which was an oil,
burning vessel. While it was moored at the C. Oil Co.’s wharf for taking fuel oil a
large among of fuel oil was split due to the negligence of servants of O.T. Ltd. The oil
spread to M.D. Ltd’s wharf which was about 600 feet away where a ship Corrinal
was under repair. The Manager of M.D. Ltd. Saw the oil and immediately stopped
the welding operations that were being carried on it the ship Corrinal and enquired
with C. Oil Co. Whether the oil was noninflammable. Due to the enquiry he believed
that the oil was non-inflammable and he started the welding operations to be carried
on, with all precautions to prevent the inflammable material from falling into the oil.
Two days later the oil caught fire and the wharf of M.D. Ltd. was extensively damages.
The Privy Council held that the case of Re Polemis is no longer good in law. It
held that ‘’ It is the foresight of the reasonable man which alone can determine
responsibility. The Plemis rule by substituting ‘direct’ for ‘reasonably foreseeable’
consequence leads to a conclusion equally illogical and unjust”.
In the above case the full court of the Supreme Court of New South Wales held
that there was a breach of duty and direct damage, but that the damage, caused was
unforeseeable and held that O.T. Ltd, were liable following Re Polemis case. The
privy council reversed the judgement on the grounds stated in previous paragraph.
Wagon Mound Case No. 2. Overseas Tankshi (U.K.) Ltd. Vs. Miller Steamship Co.
(P) Ltd.
In the above case an action was brought for negligence and nuisance against
the same defendants in the Wagon Mound (No.1). The Australian Court held that
the plaintiff’s claim in negligence failed because fire damage was not reasonably
foreseeable, but that they will succeed in their claim for nuisance as a liability for
nuisance was not dependant on forcibility. The Privy council, on appeal by both
parties held that the fire damage was reasonably foreseeable and upheld the plaintiff’s
claim and also upheld the defendant’s contention that liability for nuisance was
depend on forceability. Lord id stated that forceability is relevant as a test of
remoteness in all cases of nuisance to determine whether the kind of interference
is actionable, even though unreasonable conduct, such as intelligence which is
based on forceability in another sense, may not be required.
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It is thus seen that the test be applied would be whether a reasonable man
would have foreseen any risk and prevented it. If the injury or damage could have
been foreseen by a reasonable man, then the wrong does will be liable. If a reasonable
man could not have foreseen such risk then such damage will be considered as too
remote. By the Wagon Mound case No.2, the Privy Council held that the test of
forceability is a test to consider remotness of damage not only in cases of negligence
but also in cases of nuisance. It is very likely that foreseeability will be held to be the
test of remoteness in other torts too whether or not it is the test of liability.
Hughes Vs. Lord Advocate
Employees of the Post Office had opened a manhole in the street. In the evening
while leaving they covered the manhole with canvas shelter with warning paraffin
lampls all around but unattended. The plaintiff an eight year old boy playing with
one of the lamps let it fall into the manhole. A violent explosion followed and the boy
himself fell into the manhole and was seriously burnt. The post office men were in
breach of a duty when they leave the manhole unattended. Though it was
unpredictable that the lamp would explode, they should have appreciated the boy
playing with a lamp, it falling into the manbole and the boy sustaining burns. The
defendants were held liable though the injury was caused by an unforeseeable
sequence of events on the ground that the lamp a known source of danger was
unattended to .
Tremain Vs. Pike
The Plaintiff contracted leptospirosis a disease which was a consequence of the
increase in the rat population on the defendant’s farm. Payne I. held that the plaintiff
cannot get damages even on the assumption that the defendant was negligent in
failing to control the rat population. He based his decision that the disease which is
caused by contact with rat’s urine, is extremely rare and it was therefore both
unforeseeable and entirely different in kind, from such foreseeable consequences as
the effects of a rat-bite or food poisoning from contaminated food. The damage was
held to be too remote.
Malcolm Vs. Broadhurst
A husband and wife were injured by the defendant’s negligent driving of a vehicle.
The husband became mentally unstable and in due course became irritable and
violent. Consequently the wife who contracted the nervous disease was held entitled
to damages which was the consequence of the husband’s mental instability.
10.2 Unintended Consequences
Where a consequence is intended by the wrong doer he will be held liable for the
damages. The intention can be presumed by the circumstances of each case. When
such damages is intended it is never too remote.
A consequence is too remote if it follows a break in the chain of causation or is
due to a novo causa interveniens. That is, there had been a intervening even which is
regarded in law as the sole cause of that damage. Such intervention may be (a)
Where a natural event occurs independently of the act of any human being (b) where
the even is due to the act or omission of a third party (c) where the consequence was
a result of the act or commission of the plaintiff himself.
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Scott Vs. Shepherd (Squib Case)
Shepherd threw a squib into a market place. Wills on whom it fell threw it away
and it fell upon Yates who threw it away. The squib fell on the plaintiff and exploded
and he lost one eye. The court held shepherd to be liable as the plaintiff’s injury was
a direct and immediate cause of the defendant’s act.
10.3 Intervention of Natural Event
Carslogie Steamship Co. Ltd. Vs. Royal Norwegian Government
The Plaintiff’s ship was damaged due to collison with the defendant’s ship the
defendant’s ship was wholly responsible. The plaintiff’s ship sailed to United States
after temporary repairs. During voyage the ship suffered extensive damages due to
heavy weather. The ship was permanently repaired for the collison damage as well
as the damage due to weather. The House of Lords held that the plaintiffs were not
entitled to damages for the loss of use of their ship since the ship was not only
repaired during that time for collision damages but also for weather damages. There
was no question of the defendants being liable for heavy weather damage. The loss
‘was not in any sense a consequence of the collision, and must be treated as a
supervening even occurring in the course of a normal voyage.”
10.4 Novus Actus Interveniens
The above simply mean a new intervening act of third party. Where the
intervening act of a third party breaks the chain of causation the resultant damage
will be considered as too remote. If such intervening act does not break the chain of
events the defendant who has started the chain with his wrongful act will be held
liable for the damages.
A chain of causation may be broken by the wilful wrong of a third party or by
the negligent act or lawful act of a third party.
10.5 Wilful Wrong Doing
When a third party had wilfully committed wrong the chain started by the
defendant’s act will be held as broken. In the case of COBB Vs. GREAT WESTERN
RAILWAY Co. The defendants overcrowded a railway carriage and the plaintiff was
robbed. The court held that due to the intervening act of a third party which was
wilful, the chain of the original causation was broken and held the damage as too
remote.
10.6 Negligent Act
Singleton Abbey Vs. Paludina
Paludina, Singleton Abby and Sara, three ships were involved in collison.
Paludina due to negligence dragged her anchor and fell upon Singleton abbey which
struck against Sara and as a result Sara was rendered a drift. Sara was suck as a
result and after striking against the propeller of singleton Abbey and damaging it.
The owners of Singleton Abbey sued the owners of Paludina for damage and loss of
the propeller of Singleton Abey. It was held that though the negligence of Paludina
had started the chain of events, the intervening negligence of Sara had made the
damage too remote. The negligent act of Sara broke the original chain of causation
between Paludina and Singleton Abbey.
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Lawful Act of Third Party
Where the lawful act of a third party is the intervening act and the original
chain is broken, the damage is considered as too remote.
Harnett Vs. Bond
The Plaintiff, a lunatic, was ordered to be released after trial. Bond, a
commissioner of Lunacy informed the manager of the lunatic asylum that the plaintiff
was not fit to be released. He held detained the plaintiff for three hours after which
the manager of the asylum took him in his charge and kept him in the asylum for 9
years. The plaintiff escaped from the asylum and brought an action against Bond
and the asylum. It was held that Bond was liable for damages for retaining the plaintiff
for three hours, but the detention by the asylum for 9 years was considered as too
remote as the intervention by the lawful act of a third party has broken the chain of
events to make much damage too remote.
The Oropesa Case
The Oropesa a ship and another ship the manehester Regiment were involved
in a collision in which the Manchester Regiment was severely damaged. They
arrange for salvage the master of the Manchester Regiment went across to the Oropesa
by his ship’s boat. Due to heavy sea the boat overturned killing nine seamen. The
plaintiff whose son was one of the seamen killed brought an action against Oropesa.
The question that arose was whether the death was caused by the negligence of
Oropesa. Though both ships were to be blamed for the colliion it was held that the
action of the master of Manchester Regiment cannot be taken as an intervention by
a third party so as to break the chain of causation leading to the death of the plaintiff’s
son. It was held that the damage was not too remote and the Oropesa was held liable.
Metropolitan Railway vs. Jackson
Jackson who was travelling by train found a crowd rush into his compartment
at one station. The same thing happened at the next station and to prevent further
crowding he had put his hand across the door. When a porter shut the door of the
compartment, Jackson’s thumb was crushed. The court held that the damage claimed
by Jackson against the Railway Company as too remote. It reasoned that though the
Railway Company was negligent in letting the compartment become overcrowded,
the action of the porter in closing the doors was reasonable and natural since the
train would be approaching a tunnel. The porter would have closed the doors even if
there were only a few people in the compartment. The damage as such was too remote.
Weld-Bludell Vs. Stephens
The defendant was directed by the plaintiff to investigate into the affairs of a
company. In the written instructions there was some libellous statements against
two officers of the company. The defendant had given the statement to his partner
who had negligently left the same in the company’s office. The Manager of the
company who came across the statement communicated the same to the officers
concerned who recovered damages from the plaintiff. The plaintiff brought action
against the defendants for breach of duty in failing to keep the instructions secret.
The House of Lords held the damages to be to remote as the cause of negligence was
due to plaintiff’s own act.
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Mc. Kew Vs. Holland & Hannen & Cubitts (Scotland) Ltd.
The plaintiff had suffered an injury in an accident for which the defendants
were held liable. In view of the injury the plaintiff occasionally lost control of his legs.
Sometime after the accident the plaintiff had gone to inspect of flag. While descending
the stairs he lost control of his legs and in order to save his daughter, pushed her
back and jumped of as to stand upright. As a result he fractured his ankle. The
House of Lords held that though his act of jumping had not broken the chain of
causation, his act in placing himself in a position which may develop into an
emergency had broken the chain and as such the damage became too remote. Here
the plaintiff’s own act had made the damage too remote.
The Calliope case
Two ships were involved in a collision in the River Seine in which both ships
were negligent. The Calliope while proceeding further suffered damage while trying
to negotiate in the river. Though the chief officer of Calliope was himself negligent in
the manoeuvres it did not among to Nova Causa interveniens and held that the
owners of the other ship must bear partial responsibility for the further damage
suffered by Calliope.
10.7 Novus actus and Contractual Obligation
Where a party is bound by certain contractual obligations such party cannot
plead act of third parties to make the damages caused as too remote and thus
escape liability. A bailee of goods has a contractual obligation to safeguard the goods
bailed. He cannot plead intervention by the thief, if the goods bailed were stolen.
In the case of LONDON JOINT STOCK BANK Vs. MACMILLAN, a customer was
held to owe a contractual duty to his bankers to take care of the way in drawing
cheques in such a way as to give no room for fraud. A customer drew a cheque for £
2 in such a way which enabled the clerk of the Bank to alter if as £ 120 and abscond
with the money. Though the criminal act of the clerk was not a direct consequence of
the negligence, it was an act of the customer who should have foreseen such act to
give way for committing fraud. As such its was held that the Bank will not be liable
for the loss to the customer.
10.8 Intervening Acts in Pursuance of Duty
Where the intervening act was in pursuance of a duty whether legal or nodal
the chain of causation will not be considered as broken and the resultant damage
will be the direct consequence of the original act which started the chain of events.
A father going to rescue his child and getting injured will be able to claim
damages from the wrong doer who had at first started a chain of events by
endangering the child by his negligent act. This doctrine even goes to the extent
that a stranger will also be entitled to damages where the person to be reduced is in
no way related to him.
Haynes Vs. Harwood
A servant of the defendant left a two-horse van in the street where a lot of children
were playing A small boy threw a stone at the horses and the horses bolted resulting
in injury to the plaintiff. It was held that the boy’s act did not sever the chain on
causation and in fact to leave a van unattended negligently in a place where children
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were playing was the direct cause of the injury. The court applied the test of a
‘reasonable man’ in deciding the above case.
3. Norvus Actus amounting to Acts in Defence of Rights
In case of CLARK Vs. CHAMERS it was held that a new intervening act done in
defence of one’s own right will not be considered as an act breaking the chain of
causes. An obstruction was created on a highway by the defendant by a horizontal
iron bar with spikes. A stranger removed the bar and put it upright on the fort path.
The plaintiff walking on the foot path at night was injured when a spike entered his
eye. The court held the defendant liable as the act of the stranger was in defence of
his right to use the highway and hence cannot be treated as an intervening act
which could be considered to breack the chain of causation.
In the “Squib Case” which has already been dealt with it was held that the act of
the persons who threw the squib which fell on them was in defence of his rights and
will not among to break in the chain of causation originated from the defendant.
10.9 Anticipated Intervening Acts
It has been held that where the intervening act could have been reasonably
anticipated, the wrong does will be liable in spite of such intervening acts of third
parties.
A person landing by means of a balloon on the plaintiff’s garden should have
reasonably anticipated a crowed gathering around the balloon and damaging the
faren.
In the case R. Vs. MOORE it was held that a person who had opened a pigeon
shooting ground should have reasonably anticipated outsiders gathering outside
the grounds and shooting at the escaping pigeons, thereby causing damage.
5. Intervening Act Not causing Loss
Where the intervening act has not caused the loss and are acts the defendant
had foreseen then much acts will not be considered as breaking the chain of
causation as to make the resultant loss too remote.
Lynch Vs. Nurdin
The defendant’s servant had negligently left a cart and its horse in the street
and the plaintiff a child of seven years was injured while, playing with it. The court
held the defendant liable on the ground that the act of the servant had tempted the
child to play with it which was a natural tendency of a child of such a tender age.
In the case of LATHAM Vs. R.JOHNSON & NEPHEW LTD. a child while playing
on a heap of stones and getting injured was held not liable for the damage. Here it
was held that the deposit of stones is a normal use of the land.
SCOTT Vs. SHEPHERD or otherwise known as the Squib case is typical case
where the law presumes or atleast there is an interference that the person initiating
the chain of causation by his wilful negligent act had intended the necessary and
natural consequences of his conduct.
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10.11 Plaintiff in Alternative Damage
Where the act of the defendant has placed the plaintiff in danger and to escape
the danger the plaintiff acts and gets injured he will be entitled to damages though
the course of action taken might have been erroneous. Such act of the plaintiff will
not make the injury remote. The rescue cases are examples where at the time of
imminent danger the plaintiff goes into the rescue and thereby getting injured will
be entitled to damage as there is no alternative than to place himself in the danger.
Jones Vs. Boyce
The horses drawing the defendant’s stage coach runaway as a result of breaking
of the reins which were defective. The plaintiff sitting inside the coach jumped down
and was injured. In fact the coach did not capsize and if the plaintiff had Son inside
he would not have been injured. The court held that the negligence of the defendant
which placed the plaintiff in danger had left him in no alternative than to act as he
did and held that the act had to broken the chain of causation. The plaintiff was able
to recover damages from the defendants.
In the case of WOOD Vs. CALEDONIAN RAILWAY CO. It was held the act of a
young woman in trying to drag her companion away from an approaching train and
getting killed will not break the chain of causation.
Brandon Vs. Obborne Barrett & Co. Ltd.
In the above case, while X and his wife were, in a shop as customers, by the
negligence of the defendants who were repairing the shop roof, some glass fell on X.
X’s wife sensing the danger pulled her husband and while doing so injured her leg.
Swift J held that she had done no more that any reasonable person would have done
in the circumstances of the case. She was held as entitled to damages.
In the case of THE CITY OF LINCOLN, there was a collision of ships due to the
defendant’s negligence. The plaintiff’s ship was damaged and had lost her charts
and compass. The captain of the ship while trying to take her to safety ran aground.
It was held that the damage was not too remote.
Acts Done to Mitigate Loss
Any act done by the plaintiff to mitigate the loss will not be considered as an
intervening act breaking the chain of causation.
Dee Conservancy Board Vs. Mcconnell
The defendant’s ketch sank due to their own negligence and obstructed
navigation in the river. The plaintiffs who were conservators of the river had to remove
the wreck at an expense of 1,500 pounds since the defendants had abandoned the
same. The plaintiffs were held entitled to recover the amount, spent by them for
removal of the wreck, from the defendants as the acts of the plaintiffs were in
pursuance of a duty to minimise the loss.
10.12 Concurrent Cause
Where two or more separate and distinct causes by different persons converge
and result in a single damage then each of the wrong doers will be responsible for
the resultant damage.
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Burrows Vs. March Gas & Coke Co.
Due to the negligence of the gas company a leak appeared in a gas pipe fitted in
the plaintiff’s shop. The gas-fitter employed by the plaintiff to repair it caused a fire
accident when he took a lighted candle near the leaking gas pipe. The Plaintiff brought
an action against the gas company for damage to the shop. It was held the negligence
of the defendant company was a continuing one and was a direct cause of the damage
though nothing would have happened but for the independent negligence of the gas-
fitter.
Successive Actions on the same Facts
It is a public policy of every state that all litigations should have a finality. The
state always discourages successive actions based on the same cause of action without
limit. This policy is to prevent multiplicity of litigation. The state prefers one action
to realise all rights emanating from the same cause of action.
Fetter Vs. Beal (1701)
In the above case it was laid down that the injured plaintiff cannot bring a
second action on the same injury when such injury turned out to be more serious
than what it was thought of. The defendant paid damages for the injury caused to
the plaintiff when he beat up the plaintiff. Eight years thereafter the plaintiff brought
another action for more serious injuries claiming them to have resulted in the beating
he had received from the defendant eight years back.
10.14 Exception to the Above Rule
The above rule will not apply where two distinct rights have been violated by the
same act. In such circumstances two separate causes of action will be available to
the injured. Since the cause of action are separate and distinct the plaintiff can
bring successive action in respect of each cause. For example if the same act had
caused injury to the plaintiff as well as to his property, the plaintiff will be entitled
to bring separate actions on each injury successively. In the case of BRUNSDEN Vs.
HUMPHREY, one A inside his cab was damaged by the negligence of the defendant.
After recovering damages, by court process, respect of his cab, he brought an action
against the defendant for personal injuries. The court allowed the action and
observed that the plaintiff was entitled to sue in respect of the injury to his person
and damage for his property by different actions.
Exception 2
Where the injury or wrongful act is a continuous one then the plaintiff will be
entitled to bring separate and distinct actions to redress each such continuing
injury. In the case of DARLEY MAIN COLLIERY Vs. MITCHELL, the facts are that
Mitchell leased his land to the defendant. The land studeed as the defendant was
digging out coal. In 1863 an action was initiated by the plaintiff for damage caused
to the property and he recovered damages. In 1882 further subsidence was caused
to his land when a neighbouring land was mined for coal. It was proved that the
further subsidise would not have occurred if the damage was not caused by the
defendant in 1863. The House of Lords awarded compensation for the subsidence
occurred in 1882 against the defendants as the fresh damage was the result of the
damage caused by the defendants about 20 years back.
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In the case of WEST LEIGH COLLIERY CO. Vs. TUNNICLIFFE AND HAMPSON
LTD. It was held that a successive action for continuing injury can be brought only
when the fresh injury is caused, but such action cannot be initiated for an anticipated
injury.
Exception 3
Where an action on a tort will lie only on proof of special damage the above rule
that successive action will not lie will not be applicable. In such cases successive
actions can be brought when fresh damage occurs. For instance when a person is
dismissed from service on some false grounds such person will not only have a
cause of action against the employer for such wrongful dismissal, he will be entitled
to bring successive actions against the same personal when he incurs further damage
when other employers of such person act on the wrongful dismissal and terminate
his services. A person who incurs loss or damage in his business due to wrongful
dishonour of a cheque will be entitled to claim damage from the Bankers. When he
incurs further damage due the same wrongful act he can again sue on the fresh
damage caused due to the same act. In such actions it should be proved that the
fresh damage would not have occurred but for the wrongful act of the defendant.
Barnet Vs. Chelsea and Kensington Hospital Management
A person went to a hospital complaining of vomiting after drinking tea. The
casualty medical officer sent him home with instructions to consult his own doctor.
That patient died after five hours and the cause was arsenic poisoning. The widow
brought an action against the hospital authorities on the ground of breach of duty to
treat her husband and negligence of the medical officer. The court held that though
the defendants owed a duty to the patient and the medical officer was negligent, the
claimant had failed to establish that the deceased would not have died if he was
admitted in the ward and was treated and as such the claim failed.
10.15 Merger of Tort in felony
The general rule is that where the same act will constitute a tort as well as a
felony the plaintiff should wait until the defendant is prosecuted or reasonable excuse
is shown for not prosecuting him. In the case of Smith Vs. Selwyn a man sued the
defendant for injuries to his spouse and such tort also amounted to felonious
administration of drugs to her. Though the court applied the above rule it did not
dismiss the action, but stayed it until the compensation of the prosecution.
Rule Against Criminal Prosecution as Condition Precedent.
According to the case law we saw in the previous paragraph, a criminal
prosecution of tort cum felony was considered as essential to initiate an action in
tort when the same act constitutes a feloney as well as a tort.
It has now been laid down that the above rule is not good law and an action in
tort is a distinct right which should not be bridged a or restricted on the ground that
no prosecution under the criminal law has been taken.
In the case of Shepherd the court laid down that “The doctrine that it was a
condition precedent to enforcing the civil remedy that the felon should have been
first prosecuted if ever it had any solid foundation was finally exploded”. In yet
another case; Lord Wright observed that “Whatever the old law may have been the
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modern law is quite clear that if the act complained of constitutes a feloney, the
civil remedy is not drowned but merely suspend”.
Exception 1
Where the wrong doer and the person liable for damage are different then action
will be against such person. For instance a master who is vicariously liable for the
servant’s wrongs can be proceeded against as only the servants is liable for
prosecution for the feloney. This exception was laid down in the case of OSBORN
Vs. BILLET. In the case of WHYTE Vs. SPETTIGNE it was held that the defendant who
was an innocent receiver of stolen property cannot claim for stay of proceedings
against him in tort on the ground at that the actual thief was not prosecuted.
Exception 2
The rule does not apply where the plaintiff is not in a position to prosecute the
offender. A father is considered as the aggrieved person when his daughter is seduced
and as he cannot prosecute the offener he is entitled to sue in tort against the offender.
This way held in the case of APPLEBY Vs. FRANKLIN.
Exception 3
The rule is to applicable where the prosecution for relony is not possible for
ofault of the plaintiff. For instance if the offender had died or escaped or is absconding.
In such situations the plaintiff is entitled to maintain an action in tort.
Exception 4
The rule is not applicable to an action under the Fatal Accidents Act, 1846
10.16 Suggested Questions
Comment on the following with the help of case laws,
1. Fraud without damages or damage without Fraud gives rise to no cause of action.
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LESSON - 11

EFFECT OF DEATH

11.1 Introduction
11.2 Death
11.3 Exception to Rule of Extingushment of Right
11.4 Causing Death and Liability
11.5 Indian Law
11.6 Suggested Questions
11.1 introduction
When a person dies his physical and legal existence comes to an end. At such
time the question arises as to whether the right of action of the person in tort will
survive if he is the plaintiff and if the deceased was the defendant whether his
estate can be held liable to pay the compensation.
If the plaintiff brings the action against the defendant for defamation then the
death of the plaintiff or the defendant while the action is pending will extinguish the
liability of the defendant to the plaintiff since personal action comes to an end at the
death of either party. This doctrine is embodied in the maxim action personalis maritue
cum persona’. Where however the action is for compensation for damage to property
or for establishment of a right to property then such action will survive whether
both parties die or anyone of them is dead during the tendency of the action.
The Supreme Court of India in the case of Supreme Bank Ltd. Vs. P.A. Tendolkar,
AIR 1973 S C 1104 has held as follows: “The maixm ‘Actio personlis moritur cum
persona’ would not be applicable for damages for defamation, seduction, inducing a
spouse to remain apart from the other and adultery”.
Where a cause of action is based on breaches of fiduciary duties of a deased
Director of a company or where his personal conduct is fully enquired into and the
only question for determination of appeal is the extent of liability incurred by him
the appeal does not liable because of his death during its pendency. Such liability
necessarily remains confined to the assets or estate left by the deceased.
11.2 Death
Where a death is caused due to the negligence of the tortfeasor, the defendants
namely the widow and children of the deceased person have a right to sue the
negligent tort-feasor for damages for depravation of livelihood. The right of action
vest with the defendants on the death of the person. The Fatal Accidents Act provides
for such action against the tortfeasor. Here the death of the person creates a new
right to his dependants.
11.3 Exception to rule of Extinguishment of right
1. Breach of Contract:- As enumerated in the Supreme Court decision quoted
above an action based on a wrongful act resulting from a breach of contract
the action will not abate on the death of parties.
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2. Wrongful Appropriation of Another’s Property:- Here again the Supreme Court
decision quoted is clear on the point. It was observed therein that an
action will not abate on the death of parties when the wrongdoer or his
estate was benefited by the wrongful act.
Sherrinotgn’s case
The executors of the deceased tortfeasor were held liable for 20 oxen and 100
oaks which the tortfeasor had taken away from the plaintiff, wrongfully. It is not
essential that such property wrongfully held should still remain with the estate of
the deceased. In the case of PHILLIPS Vs. HOMFRAY the estate of the deceased
defendant was held liable for the value of coal wrongfully taken from the plaintiff’s
mine.
3. Statutory exceptions:- When by a number of statutes a legal representative
was able to sustain an action for damages to the property of the deceased,
they did not vest such legal representative with rights to recover by way of
compensation the medical expenses and damages for loss of wages. To
remove such restrictions the Law Reform Act of 1934 was passed by which
an action in tort affecting the person of the deceased could be contained
subject to certain limitations.
Law Reform (Miscellaneous Provisions) Act 1934
This act overruled the principle that an action abated on the death of parties
and laid down that the right to continue such action till vest with the estate. However
application of the rule of actions based on defamation, eduction, inducement of
spouses to live apart and damages for adultery were not excepted.
Rose Vs. Ford
Due to the negligence of the defendant Rose was seriously injured in a motor
accident her leg was amputated two days after the accident and two days later died
as a result of the injuries. She had remained unconscious from the time she met
with accident until her death. Her father sued the defendant for (i) pain and suffering
(ii) loss of her leg and (iii) shortening of expectation of life. While the lower court held
the father entitled to sue for first two grounds, it applied the rule of BAKER Vs.
BOLTON to the third class of damages and held that the father was not entitled to
damages on that head. The House of Lords held that during the period from the date
of accident to the date of death, the deceased had already acquired a right to sue for
loss of expectation of life and hence such action survived and vested with the legal
representative, that is the father.
Flint Vs. Lovell (1935)
The Plaintiff a 80 year old person was seriously injured due to the negligence of
the defendant and the Court of appeal for the first time granted damages for shortened
expectation of life.
11.4 Causing Death and Liability
The Common Law does not recognise killing of a person as a tort. This rule was
laid down in the case of Baker Vs. Bolton. Lord Ellenborough held that ‘In a Civil
court the death of a human being could not be complained of as an injury.
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Rule in Baker Vs. Bolton
A married couple were travelling on top of the defendant’s stage coach. Due to
the negligence of the defendant the coach overturned. The husband sustained minor
injuries while the wife who had sustained serious injuries died a month later. It was
held that the husband was not entitled to claim damages for wife’s death as causing
death is not a tort. It was held that the tort alleged had merged in the crime.
Osborn Vs. Gillett
The father of a girl who died as a result of negligent driving by the defendant’s
servant, was held not entitled to claim damages.
The court of appeal in the case of CLARK Vs. LONDON GENERAL OMNIBUS
CO. LTD. confirmed the rule in BAKER Vs. BOLTON and the House of Lords
upheld the same in the case of ADMIRALTY COMMISSIONER Vs. S. S. AMERICA.
Exception to the rule in Baker Vs. Bolton
The above rule is not applicable where due to death the plaintiff had incurred
loss of service under a contract with the deceased. In the case of JACKSON Vs.
WATSON the plaintiff’s wife died when she ate a few tinned salmond he had purchased
from the defendant and the court held that he was entitled to damages for loss of
her services.
2. Due to the expansion of the railways fatal accidens increased in England.
THE RULE IN BAKER Vs. BOLTON caused serious hardship to the defendants if any
person gets killed in railway accidents. Where the person is injured he can recover
heavy damages, but when he died his legal heirs were helpless. Hence the rule as
laid down in BAKER Vs. COLTON was modified by the Fatal Accidents Act, 1846.
This act, enabled the close relatives of person deceased in an accident to bring an
action for damages, the same as the deceased would have had if he had not died but
had only suffered injuries and the loss the relatives suffered due to his death. Thus
a new kind of action was created by the aforesaid act. The decision of ROSE Vs.
FORD enabled a number of persons to bring actions for shortened expectation of
life.
Roach Vs. Yates
When a stone fell on the head of a bricklayer by the negligence of the defendants,
his brain was affected. Later the brick-layer became a lunatic. In view of this, his
wife and his sister-in-law left their jobs to look after his and the court awarded
damages for the loss.
Benham Vs. Gambing
A two year old child died in an accident caused by the defendant’s negligence.
The father and administrator claimed damages. The award of £ 1,200 by the lower
court was confirmed by the Court of Appeal. However the House of Lords reduced
the compensation to £ 200 and laid down following rules:-
1. The human life must be assumed on the whole to be an advantage rather
than a disadvantage and that the thing to be valued is not the prospect of
length of days. The thing to be valued is the predominately happy life.
Therefore the actuarial or the statistical test is not the one to be applied
though it may be relevant in the case of a person of old age.
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2. It is the capacity of the deceased to appreciate that his future life would
bring him happiness is irrelevant.
3. Damages are in respect of loss of life, not of loss of further pecuniary
prospects.
4. Assessment of damages is not easy and not definite. It should be taken
into consideration the ups and downs of life pains and sorrows and joys
and pleasures.
5. The assessment of damage should not be based on the wealth or status of
a person as happiness in life does not depend on such things alone. It is
therefore not correct to content that higher compensation should be
awarded to persons of greate wealth and status than a poorer man.
6. Where the deceased was of a tender age there is much uncertainty regarding
his future happiness and hence there on be no confident estimate of
prospective happiness.
After the passing of the Employer’s Liability Act of 1938, personal relatives of a
deceased workman were vested with rights to bring action against the employer for
compensation. The Workmen’s Compensation Act of 1925 also provided relief to
dependants of workmen getting killed in accidents during employment by enabling
them to claim compensation from the employer to the extent the workman would
have been entitled for if he had merely sustained injuries and had not died.
11.5 Indian Law
The rule that an action ends on the death of parties is not applicable in India as
a whole. As already pointed out the Supreme Court of India had held that only in
respect of certain types of torts of a personal nature will come to an end at the death
of parties.
1. Legal Representatives Suits Act, 1855
By the rights conferred by the above act an executor on administrator or legal
heirs of a deceased person can maintain an action in respect of any wrong committed
against the deceased which had occurred within a year before his death and which
had caused some pecuniary loss to the estate.
2. Fatal Accidents Act, 1955
A widow, widower or a child of a deceased person is permitted by the above act
to bring an action against the wrong doer in respect of those act the death had
resulted, for compensation. Such action however should be brought within one year
from the date of death of the deceased.
3. Indian Succession Act, 1925
As per Section 306 of the Act an action for the estate or against the estate of a
deceased person survives the death of that person except in the cases of defamation.
Assault and personal injuries not causing death.
We had already disscued the Supreme Court decision which clearly states the
position in Indian Law when death occurs.
11.6 Suggested Question
1. Discuss the maxim “Active personalis moritour cum persona” and explain the
various statutory charges limbing its operation.
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LESSON - 12

SPECIFIC TORTS

12.1 Specific Torts

12.2 Assault
12.3 Battery
12.4 Defences
12.5 Mayhem
12.6 False Imprisonment
12.7 Defences
12.8 Remedies
12.9 Wrongs to Family Relationship
12.10 Injuries to Parentla Rights
12.11 Injuries to Master’s Right
12.12 Suggested Questions
12.1 Specific Torts
As we have covered the various principles of tortious liabilities, remedies, rights
to bring action based on capacity and various other essential subjects we will now
look in to specific torts. Specific tort, may arise either due to injury caused to a
person or to one’s property. Out of these species many branches go out spreading
and covering every injury that has so far been recognised by the law of torts.
Torts on a person can be classified as (1) wrongs affecting person’s safety and
freedom and trespass on person including bodily harm and death. (2) Wrongs injuring
a person’s reputation (3) Wrongs affecting domestic relations and (4) Wrongs affecting
statues.
The Wrongs affecting a person’s safety and freedom can be further classified as
(i) Assault, (ii) Battery, (iii) Trespass to person other than bodily harm (iv) False
imprisonment and (v) Death. As guards death we have already dealt with the same
in the previous chapter which can be referred to by the students.
12.2 Assault
Dr.Winfied has defined assault as “an act of the defendant which causes to the
plaintiff reasonable apprehension of the infliction of battery on him by the defendant”.
He had defined battery as the international application of force to another person.
Thus it can be seen that assault is a wider form of battery and battery will always
include assault. In respect as assault no bodily harm is caused and in fact there is
no physical contact with the plaintiff’s body. It will among to treat to cause or inflict
battery. The plaintiff should have been frightened of battery by the defendant as a
result of the defendant’s act. For instance if the defendant advances in a threatening
manner as if to use force or commit battery he has committed assault. In the case of
Martin Vs. Shppe the defendant was held to have committed assault on the plaintiff
when he chased the plaintiff with a uplifted whip with an intention to strike him,
though the plaintiff escaped unhurt. In the case of Tubervell Vs. Savage, the defendant
 77
was held as not committing assault on the plaintiff when he put his hand on his
sword and sold the plaintiff. “If it were not assize time I would not take such language
from you”. The court reasoned that the words could not have created an apprehension
of impending battery in the min of the defendant.
In the Indian Penal Code Section 351 defines assault as “whoever makes any
gesture, or any preparation, intending or knowing it to be likely that such gesture
or preparation will cause any person present to apprehend that he who makes that
gesture or preparation is about to use criminal force to that person is said to commit
an assault. It is therefore seen that intention to commit violence is the essential
ingredient. In the case of Tubervell Vs Savage as quoted above it is seen that the
defendant in clear words had pointed out that he intends no harm at that time and
hence the court held that there was no assault. Thus a person pointing an unloaded
gun at another in threatening way will be held for assault though he had known
that the gun was unloaded.
Stephens Vs. Myers
The defendant on being ordered out of a meeting said that he would rather pull
the chairman (plaintiff) out of the chair than leave the meeting and advanced towards
the plaintiff with clenched fists. Though he was stopped by the other, the court held
that his act has amounted to assault, as it had created an apprehension in the mind
of the plaintiff and awarded a shilling as damages.
12.3 Battery
As stated previously Dr. Winfield has defined battery as the intentional
application of force to another person”. Though the force used may be very trival or
negligible, yet the tort of battery is committed once a physical contact is made on
the plaintiff’s body. Even touching a person in anger without any lawful justification
will amount to battery. Even throwing water on a person or spitting on him or letting
loose dangerous animals on the plaintiff will constitute battery. The Madras High
Court in the case of a police officers chaining an under trial prisoner to a window
while he was undergoing medical treatment was held to have committed trespass to
person P.Khadar Vs. K.A. Alagarswami, A.I.R. 1958 Mad 438.
However to prove battery there should be a positive act and not a passive one. In
the case of Inne Vs. While a police man prevented the plaintiff from entering a club
with out any justification. He just stood still and blocked the way but not touched
the plaintiff. The court held that there was no battery or assault. Where boeily harm
caused due to some act of which the defendant has no control it will not constitute
battery. For instance injury caused due to a runaway horse will not be battery. On
the other hand letting loose a vicious dog known and intending it to harm the plaintiff
will be battery. Where the act is not intentional there is no commission of battery.
For example tripping on the stairs and falling down on another person is not battery,
though on proof he may be liable for negligence.
Windfiled has distinguished between assault and battery by giving examples
as follows:- To throw water at a person is an assault; if any drops fall upon him it is
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battery. So too, riding a horse at a person is an assault; riding it against him is a
battery. Pulling away a chair is practical joke from one who is about to sit on it is
probably of assault until he reaches the floor, for while he is falling he reasonably
expects that the withdrawal of the chair will result in harm to him. When he comes
in contact with the floor it is battery.
Assault and battery are actionable perse, that is without proof of damage.
12.4 Defences
Consent, whether expressed or implied will be a lawful justification. A boxing
bout fencing are cases where consent expressed gives a lawful justification for battery.
Friendly patting or slapping on the back are examples of implied consent on the
basis of friendship or relationship.
Any act supported by lawful authority or by statute will give lawful justification.
A teacher chastising a student or a parent scolding or punishing a child, a policemen
arresting a person under a warrant, are typical examples.
As assault is crime as per Indian Penal Code so is a battery a crime under the
same code.
Defence Against an Act For Assault and Battery
An Action for assault or battery can be defendant on any of the following grounds.
(i) Self Defence:- An act to preserve one’s safety or the safety of a person’s
close relatives are justified. This is known as self-defence. However the
force used as self-defence should have been reasonable in the
circumstances.
(ii) Defence of property:- Like defence of one’s person is justification so also
force used in defence of one’s property is also a good defence, and justifies
the force so long as the force used is reasonable and not excessive. For
example rejective a person entering one’s house without permission is
justifiable in law.
(iii) To prevent wrongful or unlawful seizure of goods is also good defence. The
owner or the person in lawful custody or possession of goods can use
reasonable force to prevent unlawful seizure of such goods.
(iv) Exercise of parental or quasi-parental authority are justifiable so long as
the force used is mild and reasonable and for the good of the child. A
teacher scolding or mildly punishing a mischievous pupil is justified in
doing the act as it is intended for the student’s good.
(v) Leave and Licence:- Where the person getting injured has himself exposed
to such injury with full knowledge and free consent he cannot bring an
action for the injury resulting from his own consent. Like boxing, wrestling,
fencing competitions and games.
(vi) Any reasonable force used for maintaining public peace is justifiable in an
action. The bodily removal of a person doing mischief or misbehaving at a
place of public worship or public meeting is a good defence in an action of
such use of force.
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(vii) Legal process: Reasonable force used in any legal process. Like serving
summons from courts searching any premises with a search warrant,
arresting person under a warrant are good defence.
(viii) Misadventure:- Inevitable accident can be successfully pleaded against an
action for assault and battery if the act resulting in the accident was lawful
and was down with reasonable care. Such plea will not be good defence if
the act was unlawful and was done negligently.
12.5 Mayhem
When a person is deprived of any one or more of his fighting limbs he is said to
have been Mayhem Now a days it is called as main. Next to death it is the most
serious of personal injuries. As this is of a serious nature the compensation awarded
for an action for such an injury will be larger. However to maintain an action for a
tort of main a fighting limb should have been lost. If it is some other part of the body,
then it would only amount to battery. Loss of hands, legs, teeth, finger and castrating
will give rise to an action for main, cutting of ears, nose, some flesh and so on will
among only to battery.
As in the case of assault and battery an action on main is actional per se. It also
amounts to a crime. The injured person can prosecute the wrong does and also
maintain an action in tort.
12.6 False Imprisonment
Complete deprivations of a person’s liberty for any amount of time, however
short, without lawful excuse is false imprisonment. ‘False’ does not indicate fallacious
or fraud, but denotes wrong or erroneous. To constitute imprisonment, there need
not be walls or boundaries. Any kind of restraint in any form will suffice. It is enough
if a person is confined to a place without allowing him to move in any of the directions.
Even if all directions are closed but one is open for the restrained person to move
out though be does not desire to move in that direction, such restrain will not among
to imprisonment. Here a person is confined within a limit depriving him of movement
completely and his personal liberty or freedom is infringed.
Meeging Vs. Grahame White Aviation Company Ltd.
The plaintiff was taken to the office of the company and detained for some time
on being suspected of stealing some varnish tins. Since two policeman were standing
nearby it was held to constitute false imprisonment though no physical force was
used.
Bird Vs. Jones
A public-way on a bridge was wrongfully declosed by the defendants. The plaintiff
who insisted his right of way climbed over a fence put up by the defendant in order
to cross over the other side. The defendant blocked his way and refused to allow him
further progress but said that he could go back the way he had came and use
another way to cross the other side. The plaintiff refused to go back and remained in
the enclosure. It was held that it will not among to false imprisonment as restriction
of movement was not complete.
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12.7 Defences
a) Lawful detention
When there is some justification for the detention then it will not among to false
imprisonment. A person detained for compelling compliance of a condition imposed
by an owner for a premises will not among to false imprisonment. In the case of
Hard Vs. Weardale Steel Coke and Coa Company, by a contract a minor had agreed
to work in a mine for a certain hours. Before the end of the period of minor wanted
to go up to the surface. The mine owner refused to send the lift down as a result of
which the minor was detained inside the mine for about 20 minutes. It was held
that the detention was justifiable.
Maharani of Nabha Vs. Province of Madras
By misunderstanding a message received a police officer prevented the Maharani
from boarding a train and also posted two policemen near her car to prevent the
same from being driven away. It was held that the restrain did not amount to
imprisonment as she was only prevented from ground in her car, but otherwise
there was no other restriction of movement.
Roninson Vs Balmain Ferry Company Ltd.
To travel by a ferry the defendants were charging a penny when a passenger
entered and a penny when he left. Plaintiff who had gone in by paying a penny
changed his mind and wanted to go out. But the gate-man refused to allow him
unless he paid a penny. It was held that it did not among to false imprisonment.
Action in support of Law
Where an action is supported by law, any imprisonment effected thereunder is
justifiable. Under Section 403 of the Code of Criminal Procedure in India a private
citizen can make a citizen’s arrest under certain circumstance. A citizen has power
to arrest a person committing a non-bailable and congnizable offence in his presence
of a proclaimed offender Action based on such powers given by law are justifiable
provided there is no malice or fraud. Under the Defence of India Act, Maintenance of
Internal Security Act and various other enactments certain officers can arrest and
detain person as per powers vested in them which is called as preventive detention.
Such detention are justifiable as they are done in the exercise of power vested
under statute.
12.8 Remedies
(i) Claim for damages:- A person complaining of false imprisonment can claim
for damages. The compensation can include claim for injury to one’s liabety,
for humiliation and disgrace caused by such false imprisonment.
(ii) Self-help:- To escape from such false imprisonment a person can use
reasonable force and this is known as self-help Such force may injure the
wrong doer or his property. However the use of force must be reasonable
to facilitate the escape and to prevent recapture.
(iii) Habeas Corpus:- This remedy is usually used not by the person detained
but by some one affected by such detention. Such persons may be parents,
spouses, court guardians who are entitled to legal and lawful custody of
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such person detained. A person in custody may also through some other
person file petition in the court for issue of a writ of Habeas Corpus. The
High Courts in India Under Article 226 and the Supreme Court under
Article 32 of the Constitution of India are empowered to issue Writs of
Habeas Corpus. Such writs are issued against the State or one of its officers.
When the court finds of detention unlawful or without just cause it will
order the person detained to be released.
Tresspass to Person other than bodily harm
A Special type of body harm that is usually caused is a ‘nervous shock’. Though
no physical harm is done, the mind or brain gets affected by certain acts or by
seeing or experiencing frightful situations. This kind of harm or injury is actionable.
Emotional disturbances, sorrow, distcrets, unnecessary fear or fright are some of
the types of nervous shocks’. Mere mental suffering like sorrow is enough to maintain
an acton for compensation.
Wilkindon Vs. Downton:- The defendant to play a practical joke on the plaintiff,
told her that her husband met with an accident and had lost both his legs. The
Plaintiff suffered a nervous shock and became very ill. The defendant was held liable
for damages.
Junyier Vs. Sweeny:- The defendant who was a detective agent told the plaintiff
that the man she was engaged to be married was a German Spy. This defendants
told her to get to inspect certain Letters. The plaintiff by such false news received a
nervous shock and the court held the defendant liable for damages.
Dulieu Vs. White:- Due to the negligent driving of a car by the defendant’s servants
in front of the plaintiff’s husband’s shop, the plaintiff who was standing behind the
bar suffered nervous shock. As she was pregnant, the nervous shock cause
miscarriage and she became ill. The Court held that she was entitled to damages for
harm done due to the nervous shock.
The Courts nowadays are applying what is known as the ‘reasonable foresight’
rule to determine the liability.
1. If the defendant could not have reasonably foreseen that the plaintiff would
get a nervous shock then he will not be liable.
2. If it was not reasonably foreseable that the plaintiffs would suffer the shock
as result of being told of the event after it had happened then damages
cannot be recovered.
3. If it could have been reasonably foreseen that an normally susceptible
person would have suffered the nervous shock, then probably the plaintiff
could recover damages.
4. If it is reasonably foreseeable that the plaintiff would suffer such nervous
shock then damages could be recovered.
5. If nervous shock was suffered due to fear of one’s own safety, then damages
could be recovered.
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12.9 Wrongs to Family Relationship
Before the advent to modern society there was a concept that men were vested
with certain proprietary rights in respect of their life, children and servants. The
man had a right of society of his wife and right of service from his children. Thus
various actions were recognised when there was interference with a man’s wife or
child based on infringement of his proprietary rights over them. Torts like enticement
of spouse or loss of service of child were recognized. These torts are now considered
as outmoded. Thus remedies except for the loss of consortium have became absolute.
The Law Reform Act in England has abolished actions based on the ground of inducing
either spouse to live separately or for keeping another person’s wife or child in one’s
custody away from that person.
As per the modern trend a husband can claim loss of society of his wife or
service caused by any injury done to her or by any imprisonment. There are moves
to abolish even this tort.
In India there are no specific law relating to the above torts. As even in England
this branch is slowly losing it footings in India the courts may tend not to recognize
such damage. Under the Fatal Accidents Act, a husband can claim damages for loss
of society and services provided the wife was not living separately at the time of
accident.
1961 M.P.L.J. 127 :- In the a case decided by the Madhya Pradesh High Court,
the facts were that the defendant induced the plaintiff’s wife to leave the plaintiff
and thereafter. He married her by Pat form and the court held as follows. That it
could be presumed in such cases that a wife was performing services for her husband
and by the conduct of the defendant in inducing her to leave the husband. The
husband had been deprived of such services. The plaintiff’s estimate of the damages
on this account at Rs. 200/- for a period of nearly twenty months could not be
considered to be at all exaggerated. Damages for loss of society and for mental
worry could reasonable account for the rest of the damages awarded by the lower
appellate court. The sum of Rs. 200/- was to at all excessive.
12.10 Injuries of Parentla Rights
A parent has a natural legal right to custody control and services of the children.
This right is based on the capacity as an employer of the child. A defecto guardian
also has the same rights. The mere fact that the child was living with the parent is
proof enough for services. A parent or guardian has a rights of action for loss of
services when a female child is seduced. An employer of a female servant also has
the same right of action when such servant is seduced. To sustain an action it
should firstly be proved that at the time of seduction. The female child or the female
servant was rendering services and secondly that by such seduction the seduced
person has been rendered incapable of rendering further services. In the case of
Terry Vs. Hutahinson a girl below twenty one years was seduced in a train when she
was returning home after being dismissed from same employment. The court held
that the father was entitled to damages. If the daughter had been in employment
under some employer and had been rendering only minor services to the father,
then the father probably could not maintain an action. If the daughter is a major the
father should prove actual service.
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In the case of Becthan Vs. James a girl of twenty two was working elsewhere
during the day time. At night she used to help her mother and the plaintiff who was
living with them though not married to the mother. The court held that the plaintiff
was in Loco parenties capacity and thus could maintain an action of loss of service
of the girl when she the seduced. A married woman living away from her husband
and living with her father is considered as rendering services to her father and
hence the father will be entitled to maintain an action for loss of service if his married
daughter is seduced. A person seduced cannot herself maintain an action. The case
quoted before may be recollected in this regard. When a girl is seduced only her
father can maintain an action and not the girl’s mother so long as the father is alive.
12.11 Injuries to Master’s Right
A master can recover damages for loss of service of his servant in the following
cases:-
(i) When the servant cannot render service due to injury caused by the
defendant or when he is imprisoned.
(ii) When the servant is wrongfully or fraudulently induced to leave the master’s
service. As stated above a master can maintain an action for seduction of
a female servant and also for inducement such female servant to leave the
masters service.
To maintain such action the master has to first prove that the servant was
rendering service at the relevant time, secondly that by such inducement or seduction
the servant is incapable of rendering service and thirdly that the master suffered
special damage.
Injuries affecting Status
Torts on injury to status relates to the right of membership of clubs of particular
community or religion and include injury to one’s exclusive office or dignitive or title
and also injury to right of worship in a particular place etc. Thus if a member of club
or of an order is wrongfully expelled from such club or order he can maintain an
action for damage on the ground of injury of his status as a member of that club or
order as the case may be. Injury to person’s dignity or title or abuse of a person’s
office re actionable. Excommunication from a caste or religion without just cause or
reason will among to tort on status. Even a person’s right to worship at the particular
temple or place of worship are torts giving rise to an right to claim damages.
12.12 Suggested Question
1. Define ‘Battery’, what are the defences available against act of Battery.
2. Define ‘Assaults’ what are the differences available against all of Assault.
3. Write a note on the following
1) Mayhim
2) False imprisonment
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LESSON - 13

DEFAMATION

13.1 Introduction
13.2 Lible and Slander
13.3 Essentials of Slander
13.4 Defences
13.4.1 Justification
13.4.2. Fair Comment
13.4.3 Privilage
13.5 Apology
13.6 Suggested Questions
13.1 Introduction
From time immemorial the society, the law, the statute and public policy always
recognized a person’s exclusive right to his reputation and guarded his such right to
reputation from being injured, infringed or abused Such injury, infringement or
abuse was always recognized as actionable and punishable.
The invention of printing and development of journalism further complicated
the issue of defamation and as such the law relating to defamation has widened to
a vast extent to provide for every kind of infringement of a person’s reputation. The
development of television and radio broadcasting has added further problems and
the law has still grown.
The main aim of this branch of law is to prevent such breaches of a person’s
reputation and to regulate or formulate a standard of speech and writing as would
preserve social honour and peace in society and dignity among the people and regard
for each others name and reputation.
As stated at the beginning defamation will give rise to civil and criminal liability.
Defamation of a private individual will among to civil and criminal wrongs while
defamation of a community usually redressed by criminal action.
Dr. Winfield has defined defamation as “Publication of a statement. Which tends
to lower a person in the estimation of right thinking members of society generally
which tends to make them shun or avoid that person.
At one time it was thought that a statement amounted to defamation only if it
made others hate or ridicule or hold in contempt the persons defamed. It is now well
settled that statements that causes others to avoid or shun the defamed will also
among to defamation actionable. In the case of Yusopoff Vs. Metre Goldwyn Mayer
Pictures Ltd. the film produced by the company was considered as defamatory as it
showed the plaintiff as if raped or seduced by the notorious monk Rasputin which
tended to make the plaintiff be shunned and avoided and that without any moral
discredit on her part.
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Libel and Slander
According to Dr. Winfield’s definition a libel consists of a defamatory statement
or representation in a permanent form’ if a defamatory meaning is conveyed by
spoken words or gestures it is slander.
As such a libel is defamatory thing in a permanent form Hence besides printed
or written forms lible may also be in the form of sculpures, pictures, statues, war
work effigy, marks signs, advertisements, films and many similar forms which are of
a permanent nature. Slander will be in the form of spoken words and gestures and
mimicry or manual language used by the deaf and dumb Broadly speaking libel is to
the eye and slander to ear. In England by the Defamation. Act of 1952. Radio
broadcasting and television are considered as of a permanent nature and hence any
defamatory thing conveyed through these media will among to libel.
In England the distinction between liable and slander plays an important role
whereas in India their significance as both are treated equally.
In England lible and slander are differentiatsed mainly on two points.
1. Slander is only a civil injury; libel is not only a civil injury but also a
criminal offence.
2. Libel is actionable per se, that is actionable without proof of damage,
Slander is attainable only on proof of special damages except in the following
four cases.
a) Where there is direct imputation of an offence, which is punishable by
imprisonment in the first instance.
b) Where there is imputation of a contageous or infectious disease, which
imputation is likely to prevent other persons from associating with the
defamed.
c) Where there is an imputation of unchastity or adultery to any woman or
girl.
d) Where there is an imputation of unfitness, dishonesty or incompetence in
another office, profession or business held or carried on by the injured at
the relevant time when the slander was made.
Before the Act of 1952 in England absence of intention was no offence in an
action for libel or slander. The above Act holds that if the statement was innocent
and the defendant makes an offer to make amends, then in such case he will not be
liable.
In India lible and slander are actionable in tort without proof of special damages.
The Bombay High Court in the case of Hirabai Vs. Dinshaw has held that
imputation of unchastity to a parsi lady was actionable without proof of special
damages as adultery is an offence punishable under the penal Code. The Calcutta
High court has held that imputing unchastity is not actionable without proof of
special damages. The Madras High Court has taken an opposite view.
13.2 Libel and Slander
1. As already stated libel is an imputation in a permanent form. Slander is in
spoken form.
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2. Libel if to the eye, while slander is to the ear.
3. In India libel and slander are considered as crime and they are also
actionable in tort. In England slander is only a tort while libel is a crime as
well as tort.
4. In India libel and slander are actionable without proof of special damage.
In England while libel is actionable without proof of special damage, slander
is actionable only on proof of special damages except in the four exceptional
cases.
5. Libel usually implies premeditation and malice. Slander is usually spoken
at the heat of the moment or under grave and sudden provocation.
6. In the case of libel the publisher of the defamatory statement may not be
the author while in slander the publisher is the author himself. As such a
publisher of a libel may not be held liable as he may be innocent.
7. In Media limitation for initiating an action on a libel or slander is on year.
In England limitation for an action on libel is six years and for slander it is
two years.
13.3 Essentials of Slander
To establish either libel or slander the following three points will have to be
proved.
1. The words are defamatory.
2. That they refer to the plaintiff.
3. That they have been maliciously published.
1. The Words are Defamatory
As said in the definition the words must tent to lower that plaintiff’s reputation
in the estimation of right minded persons, or must tend to cause him to be shunned
or avoided (Dr.Winfild). The plaintiff must depend on the exact words used. A
defamatory matter at one country or one place may not be defamatory in another
country or another place. It is therefore relevant that the existing social status and
social circumstances of each place must be considered when arriving at a decision
whether a statement is defamatory. For example in India imputing a persons to
belong to a lower caste may be defamatory whereas in the United States such
imputation will not have any effect as there is no caste system there.
Defamatory words may be of any one of the following three types. (a) Abuse, (b)
Innuendo and (c) Juxtaposition.
Abuse
There are words that are primafacie defamatory. The abuse of a person in a
vulgar language will be one of the instances when words will be considered as
defamatory unless from the circumstances it can be ascertained that they were not
used to abuse a person or to hurt his feelings or to degrade but were used only as a
figure of speech. In the case of Penfold Vs. West cote the court held that out of the
following words spoken by the defendant namely, why don’t you come out blackguard
rascal. Scoundrel Pen fold, you are a thief the words preceeding the word theif had
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reduced the word thier itself into an abuse and held them as defamatory. It should
therefore be noted that any words spoken should be considered in the circumstances
of each case. Between friends there is tendency to us certain vulgar words which
may not amount to defamation through such words spoken outside the circle of
friends or to some other persons may among to defamation.
However in the case of written words there can be no distinction as above. The
writer had time reflection before he wrote and delivered or published his writing.
Narayana Vs. Narayana
The publication referring the plaintiff as ‘Godseite’ or as a member of the Godse
group Godse being the well-known person convicted of assassinating mahatma
Gandhi, was held as highly defamatory.
Calling a persons as villain, fool, stupid, blacksheep or any such names will be
defamatory. Citing a well known writer falsely as the author of an inferior book will
be defamatory.
b) Innuendo
This represent words which are Prima Facie appearing or obviously innocent,
but become defamatory in view of facts or circumstances known to the persons to
whom they are published. To give an example to this as Dr. Winfield status. “It is as
defamatory of A to say that justice miscarried when he was acquired of murdering
X, as it is to say outright that he did murder x”. Thus words uttered in a negative
sense may impute an opposite and positive meaning thus becoming defamatory.
The burden of imputing a defamation on words appearing innocent rests with
plaintiff. He has to prove that the meaning behind the words amounted to innuendo.
Thus even if a few persons among a large number to whom the words are published
are aware of the circumstances and can make out the imputation, such words though
appearing innocent to others will be defamatory.
Morrison Vs. Ritchie And Co
The defendant made a publication, that the plaintiff was delivered a child. The
plaintiff had married only a month before. Though the statement was innocent in
itself the plaintiff was able to prove that some person who knew the above fact had
believed the report. Held that though the defendant had published this report in
good faith. It was defamatory and the plaintiff was entitled to recover damages.
Tolly Vs. Fry & Sons Ltd.
The defendants published certain caricature showing the plaintiff famous golf
champion, with a chocolate protruding from his pocket with out his consent. A
caddy was also shown with the plaintiff with chocolate protruding and there was a
doggerel verse standing in some words that the chocolate was as good as the
plaintiffs’s drive. The plaintiff alleged innuendo on the ground that it implied that he
had consisted for the publication for gains and it also imputed that he had pledged
or hired out his reputation as an amateur golfer. It was proved that consenting to
such caricatures will make the golfers liable for being deprived of their membership
in any reputable clubs and that the defendants known of the same. Hence the
House of lords held the publication of the caricature as an innuendo.
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Lewis Vs. Daily Telegraph Ltd.
The defendants published a statement that the plaintiff’s company was being
investigated by the City of London Fraud Squad. The report thus carried a meaning
that company was conducted in a fraudulent or dishonest way. The House of Lords
held that the words were not capable bearing the above meaning.
Capital and counties Bank Ltd. Vs. Henty
Henty & Sons, who had an account with the plaintiff bank due to quarrel with
Branch Manager in which they had their account wrote to their own customers
stating “Hentry & Sons hereby given notice that they will not receive in payment
cheques drawn on any of the branches of the Capital & Counties Bank’ As a result,
the same was known to a number of persons and there was a run on the Bank. The
Bank sued the defendants that their statement imputed that the Bank was Bankrupt.
The House of Lords held that the statement and not inputted the above meaning
and held the same is not amounting to defamation.
Cassidy Vs. Daily Mirror Newspapers Ltd.
The defendants published in their newspaper a statement that Mr.C the race-
horse owner, and miss X, whose engagement has been announced, along with a
photograph of C and Miss X together Mrs. C who was the wife of Mr.C. was living
separately and her friends and acquaintances knew of the same. The above statement
was made by the newspaper on the information received from C, but they failed to
verify the same. Mrs. C sued the newspaper for innuendo. That the statements
imputed that C. was not her husband and that they had lived in immoral cohabitation.
The Court held that the statement had cast aspersions on the plaintiff’s moral
character and hence amounted in innuedo entitling the plaintiff to damage.
C) Juxtaposition
The word juxtapose means to place (thing) side by side. There may arise instance
where things placed in such a position that they may impute some derogatory or
degrading meaning. In the famous case of Moneon Vs. Tussands Ltd. the defendants
who had a waxworks exhibition exhibited a wax model of the plaintiff with a gun, in
a room adjoining the ‘Chamber of Horrors’ The plaintiff who was tried for murder
had been acquitted. The Court held that the exhibition amounted to defamation.
In the case of Wheeler Vs. Somerfield it was held that the mere fact that an
article about the plaintiff appeared, where articles regarding dishonest men had
appeared, on other occasions will not amount to defamation as there is no defamatory
inference by such juxtaposition.
2. Reference to the Plaintiff
The second requirement to sustain an action for defamation is that it should be
proved by the plaintiff that the defamation is concerning himself. The statement
must refer to the plaintiff or it must be in such a way that it points to the plaintiff or
there is key indicating that it is all about the plaintiff. It is enough if the defamation
is in respect of the plaintiff though the defendant might not have intended to defame
the plaintiff. It will also suffice to sue for defamation if the persons to whom the
publication is made could reasonably infer that the materials published refer to the
plaintiff. As such it is immaterial that no name is mentioned so long as the above
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requirements are fulfilled. It is not a defence to plead that the publication was made
in good faith and without intention to defame the plaintiff where however the
publication is without intention the damages may be mitigated.
Hulaton & Co. Vs. Jones:- While publishing something humorous about a motor
festival at Drippe, the defendants indirectly cast imputations on the morals of the
plaintiff Artmus Jones, a church warden Though the defendants believed this
character as purely fictious, there existed a person in the same name, a barrister,
who was not a church warden did not take part in the motor festival and who was
not living at the place where the Jones in the article was reported as living. When he
sued the defendants, his friends gave evidence that they believed that the article
referred to him. The court held that the plaintiff. Artmus Jones the barrister was
entitled to damages and the House of Lords upheld the judgement based on
defamation.
It was held that it reasonable people would believe that the defamation is
concerning the plaintiff. It is immaterial that the defendant had not intended to
defame the plaintiff.
In the case of Newstead Vs. London Express Newspaper Ltd. it was held that
absence of negligence will be a good plea only if the court finds that reasonable
people would not have connected the defamatory statement to the plaintiff.
T.V.Ramasubbier Vs; A; M.Ahamed mohideen A.I.R. 1972 Madral 398. The
defendant published a news item stating that a person from Thirunelveli was arrested
for smuggling opium. The person referred to was reported to be doing export business
of Agarbathis to Ceylon. The plaintiff shed the defendant alleging that the reported
news item had defamed him. It was proved that the news item did not refer to the
plaintiff. The court held that the plaintiff was not entitled to maintain the action for
defamation.
Defamation of a class of persons; Krupper Vs. London Express Newspaper Ltd.
In the above case the Court considered question whether an individual can
bring an action for defamation if he had belonged to a class of persons against
whom a defamatory publication was made. The court held that (a) where normally
the defamatory statement was in regard to a class of persons no individual belonging
to that class can claim that the defamation was written or spoken of him and (b)
that the crucial question is whether it can be considered that publication was in
regard to the plaintiff out is a snse that he can said to be personally pinted; which
would be an exception to the rule as pointed out in (a).
In the case of Eastwood Vs. Holmes, the court observed that “If a man wrote
that all lawyers were thieves, no particular lawyer could sue him unless there was
something to point to the particular individual”.
In the case of Browne Vs. D.C.Thomson. the defendant said ‘These defendants
are those that helped to murder Henry Farrer and the court help that each of the
seventeen men indicated for conspiracy for murder of Henry Farrer could bring a
separate action for defamation against the defendant.
In the case of J.Anson Vs. Stuart. a paragraph in a newspaper read as This
diabolical, like polyphemus the man-eater has but one eye, and is well known to all
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persons acquainted with the name of a certain noble circumnavigator and the court
on proof held that is pointed out to the plaintiff and hence defamatory of him.
3. The words must be Maliciously published
Until a defamatory statement is written or spoken to a third party or in other
words published to a third party it is not actionable. Publication of the words or
statements to the person defamed himself is not enough to bring an action as
defamation is an injury to a person’s reputation in the eyes of others and not in the
eyes of his own self.
Publication denotes communication, and communication as stated at the
beginning can be in any form so long as the imputation is conveyed. Sending a post
card with defamatory matter or sending a telegram will be publication as they are
open and can be read by many people who handle them. Giving the typist a matter
which is defamatory of a third party will among to publication unless it is privileged.
When defamatory matter is repeated, every repetition is a publication giving
rise to distinct and separate causes of action. If the plaintiff speaks something
defamatory about himself and another persons publishes the same such person will
be liable, In the same way publication of a defamatory matter. Thought already
published by some one else also will give rise to tortious liability for defamation.
However if the plaintiff himself communicates to others defamatory things spoken
or written to him aione by the defendant, it will not give him a cause of action
against the defendant.
Publication made though not of the defendant’s doing might also give rise to
tortious liability. In a reported case A.I.R. 1956. Patna 445 it was held that in the
absence of pleading and proof of the important fact that defendant while writing the
letter in question in Urdu script knew that the plaintiff did not know Urdu which
would necessitate residing of the letter by a third person it must be held that the
eastern lands was not responsible for the alleged publication of the libellous matter’.
It should therefore be construed that if the plaintiff had proved that the defendant
knew that he did not know. Urdu then the Court might have held the act of the
defendant in writing in Urdu as publication.
Communication between a husband and wife will not amount to publication.
However communication by the persons to another person regarding his her spouse
will amount to publication.
13.4 Defences
In addition to the defence of consent for publication there are three specialised
references to an action for defamation. They are:
1. Justification (or truth)
2. Fair Comment.
3. Privilege, absolute or qualified.
13.4.1 Justification
Truth of the defamatory matter is very good defence and is complete. However
the law does not relish such true defamatory matters published as it will be an
impose on the people who come to know of the same and even if true it still tends to
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inflict unwanton tarnish on a man’s reputation. The general principle is that the
justification must be as broad as the charge and must justify the precise charge’.
Regarding this defence it must be noted that the underlying principle is that an
action will not lie in respect of an alleged injury to reputation which the plaintiff
did not possess. It is enough that the defendant proves the truth of the matter by
literal meaning, though there may be some underlying imputation. Thus in the
case of Lewis Vs. Daily Telegraph (already quoted) the defendant was able to justify
his publication that the Fraud Squad was investigating the affairs of the plaintiff’s
company, by providing its literal meaning.
The defendant must prove that the matter published is the true, and it is not
enough if he proves that it was published in good faith. In this connection you may
refer the cases Cassidy Vs. Daily Mirror Newspapers Ltd. It is no defence to say that
Smith told me that Brown swindled his creditors’s and to defend such statement I
shall prove that Brown did swindle his creditors. Where in a defamatory statement
there are number of charges, then the defendant should prove each and every one
of them. If the defendant can prove that the matter is true in substance it is enough,
though he may not be able to prove literally. In the case of Alexander V.N.E. Railway
the defendant published a statements that the plaintiff was fined & 1 and in default
sentenced to three weeks imprisonment for travelling without ticket. It was held
that the defendant was justified of the statement on proof that the plaintiff was find
in default a sentence of a fortnight imprisonment.
13.4.2 Fair Comment
It is a good defence to an action for defamation if the statement is a fair comment
on a matter of public interest. A fair and honest criticism is essential to tone up public
working and efficient working of any public office or institution. Though criticism is
restricted to a great extent it is always recognized as an essential element of freedom of
speech which in turn is one of the freedom of a democratic system of Government. To
avoid this defence (a) comment must be on a matter of public interest. (b) sit must be an
experssion and an assertion of facts and (c) the comment must be fair.
a) There is no definition of Public interest and it is not confined within narrow
limits. It covers all matters in which the public is legimately interested or
concerned. In the case of Kelly Vs. Sheriock it was observed that public
interest ranges from the behavrious of Prime Minister or of a sanitary
authority to the conduct of a flower show and includes the conduct of
every public man and every public institutious. Thus matters of state, of
official functions, official speeches that. Local authorities, sports and many
others may be held as of public interest the comments on personal matters
of a private individual or about his personal life however great he may be
or if he holds a public office will give no protection against an action for
publication on such matters.
b) There is always a distinction between an opinion and an assertion of a
fact. In the case of Dakvhi Vs. Lobouchere the plaintiff called himself as a
specialist for the treatments of deafness, ear, nose and throat disease. The
defendant described him as “a quack of the rankest species” and the House
of Lords held that it might be a comment.
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c) Only when the comment is based on facts existing at the time it was made,
it case be fair. And there again the facts should hot be misstated. As to
state in a different way one cannot invent untrue facts and then comment
upon them However there is an exception that a fair comment may be
based on untrue statement made by a persons on a privileged occasion.
Campbell, Vs. spottiswoode.
Dr. Campbell, a protestant dissenting minister published in his newspaper a
series of letters on the subject of conversion of Chinese in order to call attention on
the importance of the evangelical work. The defendant described this work of
Dr.Camplbell in another newspaper as a mere pretext for puffing an obscure
newspaper. It was held that though the defendant believed the same to be true, it
was no defence for him as what he believed had no foundation.
In the case reported in A.I.R. 1955 N.U.C. 407, the Calcutta High court while
holding that the publication in the case was not a fair comment described the defence
of fair comment as follows. The right fair comment is not a special privilege of
newspapers but is a right which every citizen or person has. But the comment must
be fair in the sense that it must be based on facts truly stated and must, consists in
an inference. Reasonably warranted by such facts and honestly drawn. One must
state as facts only the truth and cannot state mere matters of one’s believe but after
he may add observations by way of comment and such observations will be within
the range fair comment and so protected from an action for libel. If it consist of
inference which might legitimately be drawn from the facts stated and if the plaintiff
does not prove that although prima facie and objectively fair, the comment was
nevertheless made with a malicious motive. If these conditions are satisfied, the
mere fact that there was exaggeration will not defeat the defence. He must not only
establish that the matter which he defends as comment is comment on matter of
public interest but also that it is not founded on misstatements of facts in the
comment.
In the case of Mc.Qire Vs. Western Morning News Co. Ltd. it was held that criticism
of a play as dull, vulgar and degrading was a fair comment.
The rolled-up plea is one in which the defendant pleads that the words
complained of are allegation of fact which are true in substance and in regard to the
expression of opinion contained therein they are fair comments made in good faith
without malice based on said facts which are matters of public interest.
13.4.3 Privilege
The law recognises certain occasions when freedom of communication without
of an action for defamation is much more important than the protection of a person
reputation. These occasions are termed as ‘Privileged’. Privilege may be absolute or
qualified. When any matter which may amount to defamation are uttered at such
privileged occasion, they will have immunity from an action based on such defamatory
matter. Absolute privilege relates to cases where the freedom of communication are
of such importance for defamation will be entertained. Qualified privilege are cases
where the defamatory statements are protected are cases where the defamatory
statements are protected from action only if the communication was honest, and
made in good faith and without malice.
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Types of absolute privilege
a) Parliamentary Proceedings
As in England by the Bill of Rights 1616 the proceedings of parliament enjoy
absolute privilege from action for defamation In India under Article 105 (1) of the
Constitution of India statements made by members of either House of Parliament in
the House are not actionable in any court of law. In the same way statements of
members of the State Legislatures made in the Legislature, enjoy complete immunity
as absolutely privileged communication. The absolute privilege not only applies to
statements and speeches made in the legislature proceedings, but also to paper,
photos and reports of proceedings published, by or under the authority of the
respective legislatures.
b) Judicial Proceedings
Statements made or order or judgement written by Judges and Jury are immune
from prosecution of civil or criminal action. This absolute privilege extends to
statement of the parties to the legal proceedings, witnesses and their counsel.
Similarly tribunals exercising judicial functions like labour courts. Sales tax and
income tax tribunals also enjoy such absolute privilege.
c) Official Communication or State Proceedings
Communication made by one officer of a state to another in the course of his
official duty are also protected as absolute privileged communications. In th same
ways protection granted to statements made inyany state proceedings is absolute.
d) Communications made in Armed Force Proceedings also enjoy complete
immunity from action. Statement made in court-martial communication or reports
made in the course of official duty in the exercise of armed forces authority enjoy
immunity as absolutely privileged communications.
e) Communication between a solicitor and his client will enjoy absolute
privilege if it is made in connection with the litiation.
f) As already stated communication between husband and wife also is
completely immune from action as absolutely privileged.
TYPES OF QUALIFIED PRIVILEGE:- As already stated the protection granted
on the doctrine of qualified privilege will have effect only if the statement was made
in good faith honestly and without malice.
1. Fair and accurate reports of matters of public interest enjoy qualified
protection from prosecution. Fair and accurate reports of parliamentary
proceedings, and Court proceedings enjoy qualified privilege. Though such
reports may contain statements of conduct of private individual the law
considers it as secondary in the light of public interest in such proceedings
so reported. The public importance of such proceedings are of paramount
importance that it over shadows an injury cnsued to the reputation of an
individual. Thus publication of a fair and accurate reports of such
proceedings enjoy qualified immunity from action.
2. Statements made in discharge of a duty or protection on an interest enjoy
qualified immunity. Communication by a servant to his master from an
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employee to the employer from a subordinate to the superior on matters
regarding which such servant, employee or subordinate are bound under
a contract of duty to disclose are protected, Statements made by an agent
to his principal concerning matters which the agent is bound to inform
the principal connection with the agency or for the business promotion of
the master enjoy qualified immunity. Communication of an insurance
company regarding one of is agents to the policy holders, letter by
auctioneer to another auctioneer cautioning against persons who had
removed goods without paying will come within qualified privilege.
Statements made in order to protect oneself or one’s property enjoy qualified
privilege. A master’s warning to his servant regarding a dismissed fellow servant,
complaints lodged with the concerned officials for protection of one’s property or
oneself enjoy qualified privilege. In the case of Osborn Vs. Boulter, a complaint by a
publican to the brewers regarding the poor quality of beer supplied was held as
privileged communication. However it should was held as privileged communication
However it should be noted that the publication to enjoy privilege it should be
addressed to the right person. Where its of general nature useful for the public then
such communication can be made public. Where however it is a complaint of a
personal nature then such communication will enjoy immunity only if it was made
to the correct official who are empowered to take cognizance of such complaint.
R.K. Karajia Vs. Thackersey the weekly ‘Blitz’ published a defamatory statement
regarding the House of Thackersey. When they sued the Blitz for defamation, the
defendants pleaded qualified privilege Dismissing this plea and awarding damages
the High Court held that firstly the defendant’s owed no duty to communicate the
statement. Secondly the publication was not of a matter of public interest and thirdly
that the publication was malicious.
AIR 1953 Allhabad 302
It was held that a superior officer has a qualified privilege to comment upon the
conduct of his subordinate, even if the remarks about the conduct of the subordinate
are incorrect they are priviteged unless they are malicious.
The learned court quoted the decision in 1917 AC 309 where it was held that a
privileged occasion is in reference to qualified privilege, an occasion where the person
who makes a communication has an interest or a duty, legal, social or moral, to
make it to the person to whom it is so made has a corresponding interest or duty to
receive it.
Defamation of a deceased person is not a tort, but will give rise to criminal
liability if the publication would have amounted to defamation if that person were
alive and if it has hurt the feelings of his living relatives.
A defamatory statement made by a person to his or her spouse will not give rise
to a cause of action. However if a third party makes a defamatory statement to a
persons about his or her spouse it will give rise to tortious and criminal liability.
A corporation is an artificial person and as such there cannot be any hatred or
contempt involved and as such there can be no action for defamation against a
corporation and it cannot sue on a defamation against it. If at all such right or
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liability vests with the members of such corporations it lies in their personal capacity.
In the case of Major of Manchestor Vs. Williams the court refused to award damages
to the corporation for a defamatory statement made against it. However is there any
loss in business or loss of property due to such defamatory statement such aggrieved
corporation can maintain an action for damages. In the case of South Hetton Coal
Co. Vs. North Eastern News Association, the company was able to show that its way
of business was affected when the defendant’s published a statement charging that
the company had failed to provide decent and sanitary accommodation to its workers,,
it was held that the statement must disparage the reputation of the plaintiff. A
statement which disparage a man in his reputation in relation to his office, profession,
calling, trade or business may be defamatory.
As already stated every reputation of a defamatory statement will give rise to
separate and distinct cause of action.
A person who sells newspapers, containing a defamatory matter will not be
liable for the same as he is not supposed to know the contents of the same. However
if he shouts the matter in order to attract buyers he may be held liable.
13.5 Apology
An apology tendered regretting a defamatory statement does not affect the
liability, but will be held to mitigate damages. However in India if the plaintiff accepts
the apology, then the defendants can resists the suit of the plaintiff for damages in
respect of the same defamation. In a case reported in A.I.R. 1957 Nagpur 19 it was
held as follows. No doubt where there is an apology and an acceptance there of the
defendant can resist the plaintiff’s suit for damages. The publication of the
‘contradiction’ and the expression of regret in restrain issues of the paper is not
tantamount to apology.
Liability of company ‘or its officer’s defamatory statement A.I.R. 1974 Calcutta
266.
The Calcutta High Court while deciding on the liability of a company for the
defamatory statements published by its officer held that to make the company liable,
plaintiff must prove that statements of officer were made in the course of his
employment of officer were made in the course of his employment in the company
that he knew such statements to be untrue and that the nature of his employment
warranted the authority of the company to make and publish the statements.
13.6 Suggested Question
1. What is meant by Slander and what are its essentials.
2. What is mean by lible and what are its essentials.
3. Write a note on the following
a) privilage
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LESSON - 14

WRONG TO PROPERTY

14.1 Introduction
14.2 Tress pass Abinitio
14.3 Defence
14.4 Remedy
14.5 Tort in Respect of Movable Property
14.6 Remedies
14.7 Defences
14.7 Suggested Questions
14.1 Introduction
Any damage caused by any person in respect of the property of another whether
movable or immovable will give rise to tortious liability. The unjustifiable interference
with the possession of immovable property of another is what is termed as trespass.
Whether the trespasser knows he is trespassing or not, he is still liable in tort.
Passing over or entering upon without lawful authority or making something come
in contact with the property of another remaining on the property unlawfully are
some of acts which constitute trespass. The acts of trespass may be intentional or
negligent. But entering on another person’s land is trespass whether the trespasser
known be is transgressing on another persons’ property or not. It is no defence to
say that the entry on land was on an erroneous belief that the land belonged to the
entrant.
The Contitute trespass it should be a direct interference with the possession of
property of another. If it is indirect it may be nuisance and not trespass. If I walk in
the garden of my neighbour it is trespass, and if I throw rubbish into his garden it
also will constitute trespass If I allow a ruinous chimney to fall into my neighbours
land it will only be nuisance.
Trespass must be intentional or negligent. If I consciously walk over your land
even though I did not known that it was not mine it would be construed that I
intended to trespass. On the other hand if I fall from my window in to your garden it
is not trespass.
It must be observed that trespass is against possession and not interference
with ownership. Without possession it is not possible to sustain an action of trespass
Possession not only means physical possession, but also the right of possession by
possessing the right or power to use the property to the exclusion of others will also
constitute possession. A person in possession of a property though he may not be
the owner of it, can maintain an action of trespass against a person who cannot lead
that some other person has a better right to possession than the plaintiff, unless he
can show that he had acted on the authority of that person.
Trespass can be committed not only towards the surface of the land or on what
grew or stands on it, but also in respect of the sub soil and the space over the land
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to a certain extent. Thus if a person mines under the surface of the soil and removes
minerals, he will be committing trespass. Thus if I dig on my land and thereafter go
under the surface of my neighbour’s land by tunnelling it would be trespass. Thus a
person can exercise his right over the sub soil within his boundary and under it in a
horizontal line.
Trespass may be committed by transgressing over the air space above the soil
to certain extent. The right over air space does not go into the infinite space but to
a certain limit to an extent which is considered as necessary for his enjoyment of
the property and over which he can have control. If a person has a high building and
interference over the immediate space above it will be a trespass as much as
interference over a single storey building. But as much as interference over a single
storey building. But an aeroplane flying a thousand metres above cannot be
considered as trespass of air space. In the case of Kelson Vs. Imperial Tobacco Co.,
the defendants were held liable for trespass when the advertisement board they had
put intruded over the air space of the plaintiff’s shop. Though the plaintiff had
suffered no loss he was held entitled to an injunction.
An owner of land, who is not in possession of it who has no right to immediate
possession cannot sue for trespass Since trespass is against possession, a person,
in possession of land can maintain an action against the trespasser, though his own
possession is wrongful as against the owner. Thus a trespasser can sue for trespass
by another. However an owner of property not in possession can sue the trespasser
if by such trespass a permanent damage has been caused to the property.
Trespass is actionable per se, that is actionable without proof of any damage
Invasion of property however trivial or for however a short period is actionable
Trespass is a continuing wrong and continues until the trespass ceases If I throw
rubbish on your land such trespass continues until the rubbish is removed and if
allow my cattle to graze in your garden the trespass continue until the cattle leaves
your garden. A continuation of trespass gives rise to new trespass.
Trespass is an offence under Section 144 of India Penal Code.
Though a person may enter a property with lawful authority or permission. If
he oversays after the permitted time his action will amount to trespass.
14.2 Trespass Abintio
When a person is authorised to do a certain thing by law and he does some
other thing then it will amount to trespass. For instance of a person is granted lease
by law to grow crops on the land and he digs the land and takes away the mineral he
will be liable for trespass though he had entered lawful possession of the land. A
person by law may enter an eating house which is open to public and the law holds
policeman to be entitled to search a person suspected of stealing. But if the person
entering the eating house steals the crockery or the policeman uses violence while
searching a person suspected of stealing or beats him such acts will be trespass.
However in such situations the act must be a commission and not an omission to
act. The leading case in this regard is the case known as Six Carpenter’s case reported
in (1610) 8 C.O. Ref. 146. Six carpenters who had entered the plaintiff’s tavern
asked for wine and after drinking the same refused to pay for it. It was held that
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such refusal by them did not make them trespassers. However to constitute a trespass
abintio it must be an abuse of an authority given by law and not by another person.
Thus if the authority given by law is abused, the entry though lawful will be construed
as trespass abintio. If in the six carpenter’s case the carpenters had stoien something
then it would have amounted to trespass abinito.
14.3 Defence
A person who is sued for trespass can plead the following defences
1. Justification by law or authorised by law.
2. License or by consent of the person in possession.
1. Justification by Law or Authorised by Law
Acts which would otherwise constitute trespass whether of person, land or goods
are frequently prevented from being made attainable by the existence of some
justification provided by law. A Police Officer in law is justified in entering public
house at night to enquire into the disturbances or to search a person suspected of
stealing. A court process-server entering house for serving the notice or a bailiff
entering a house for seizure of goods under court attachment are justified in such
entry. Under the Indian law a private citizen has powers to arrest a person committing
in his presence a cognizable and non-bailable offence and escaped convicts. If a
person exercise such powers he is justified in law.
A trespass by a person on the property of another may be justified in any one of
the following instances .
1. Entry for recapturing his goods.
2. Re-entry by the owner.
3. In order to abate huisance.
In order to recover his goods, a person may be justified in entering the property
of another provided the goods were put there by the wrongful act of the person
owning the property. If the plaintiff had lawful possession of goods which became
unlawful subsequently, then the defendant will have no right of entry to retrive
them. In the same way if the goods happened to be on the plaintiff’s land by the
wrognful act of another person or by accident or by act of God, then the defendant
will be justified in entering the land to re take such goods.
By terminating the right of possession of the defendant, the plaintiff owner can
re-enter on his land in a peaceful manner in order to re take it. In England such
owner is justified in using reasonable force for such take-over of his land.
In order to abate or put on end to the nuisance caused by something in the
plaintiff’s land the defendant is justified in entering upon such land. For example to
put out a fire which is causing excessive smoke to remove filth or rubbish which is
emananting its foul smell, such entry however should be after notice to the owner of
such property the entry is contemplated for abatement of such nuisance, unless
such notice cannot be given in view of the emergency. For instance firing on rubbish,
which may spread is an emergency for which notice cannot be given.
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2. Licence or Entry By Consent.
In an action of trespass, the defendant can plead that the entry was with the
leave and licence of the owner. The Indian Easements Act adequately provides for
the leave and licence. A person purchasing a ticket to a film-show is licensed to
enter the cinema house and see the film. A guest in a house can be called a licencee.
When a licencee does something other than for what the licence is given, he
becomes a trespasser. For example if I allow a plumber to enter my bathroom to fix
a tap he cannot go into my bedroom. If he does it, though his entry originally was
authorised. It will become trespass by his subsequent unauthorised act.
Allicence which is gratuitous can be revoked. For instance if I invite a person to
come to my house without any consideration. I can revoke the licence or permission
granted. I however for consideration. I had given license to a person to cut grass
growing on my land and take them away then that person has a right to enter my
land for cutting those grass and to take them away as incidental and necessary for
the license granted. A licence coupled with a consideration cannot be revoked during
its currency.
Hurst Vs. Picture treader Ltd.
The Plaintiff who had purchased a ticket to a cinema wrongly suspected by the
defendant of entering without a ticket, and the plaintiff was asked to leave the
cinema house. When he refused to leave he was forcibly removed from the cinema
hall. When the plaintiff sued the cinema hall management, it was held that the
licence granted to him cannot be revoked, as it was coupled without grant. As the
licence cannot be revoked, the removal was held as unlawful and held that he was
entitled to damages for assault.
14.4 Remedy
A party aggrieved by trespass can have judicial and extra judicial remedies.
A person can file a suit or bring such other action through a court of law for
recovery of damages, recovery of possession of immovable property and injunction.
These are known as judicial remedies.
Extra-judicial remedies can be exercised by (a) expelling the trespasser (b) by
re-entry; and (c) distress damage feasant.
The plaintiff is entitled to use reasonable force to eject the trespassing defendant.
The force should be just enough to remove the trespasser and to prevent such
trespasser from re-entering or committing trespass again and should be used only
until the trespass continues. The right of ejectment will cease once the trespass also
comes to an end.
A person dispossessed by a trespasser of his property can re-enter the property
peacefully. In England he can also use reasonable force.
The third remedy of distress damage feasant means distraint or seizure and
retention of the things doing the trespasses or damage. When your cattle graze on
my garden I have right to seize them and retain possession until you pay me
compensation for the damage or injury caused by such cattle to my garden. Thus by
retaining possession the injured person can compel the person responsible to
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compensate the damage namely the owner, to pay the damages. This right not only
extends to cattle, but also to all thing animate and inanimate. A foot-ball, cricket
ball, a horse, a car and any other thing or animal or bird or anything else can also be
detained until the owner compensates the damage caused by that thing. In the case
of Boden Vs. Roscoe, the plaintiff was held entitled to distrain the pony of the
defendant, which had trespassed into his land and had kicked his filly, until the
defendant paid the full compensation. In the case of Ellis Vs. Loftus it was held that
the act of the defendant’s stallion in kicking and biting the plaintiff’s mare, through
a fence amounted to trespass.
14.5 Tort in Respect of Movable Property
Torts to goods or movable property can be classified as (1) trespass (2) conversion
(3) physical injury not amounting to trespass, and (4) detenue (detention)
1. Trespass
Trespass is the wrongful interference with the possession of the movable
property. It should be a direct interference f the physical possession of the goods by
the plaintiff without any unlawful justification Removing a car tyre or the car itself,
injuring the goods or damaging them or destroying the goods, killing or beating
animals are some of the forms of trespass of movable property.
Trespass to movable property is actionable per se, that is actionable without
proof of damage. If the plaintiff has suffered no loss then only a nominal damage will
be awarded.
Trespass to goods against their possession. A person can sue for trespass of
goods only if he can prove that at the time of interference he was in possession of
the same. Possession may be direct or indirect. Possession by an agent, servant, a
bailee, a carrier on behalf of the plaintiff will be construed as indirect possession by
the plaintiff. In either case of plaintiff can sue for trespass. A person in possession
can sue for trespass without proof of his title to the goods. A trespasser can plead as
defence that some person other than the plaintiff had good title to the goods. In the
case of Wilson Vs. Lombank Limited the plaintiff purchasing a car from a person who
had no title to it, and gave it to a garage for repairs. The defendant thinking that the
car was his own removed it from the garage. The defendant was held to have
committed trespass in respect of the car against the plaintiff’s possession.
14.6 Remedies
a) The plaintiff can take judicial remedies by bringing an action for damages
for the trespass or for injunction to prevent a continuing or threatened
trespass.
b) The Plaintiff can exercise extra judicial remedy of retaking or recovering
the goods and for such purpose can use reasonable force which should
cease when such goods are recovered or retaken.
14.7 Defences
Against an action for trespass to goods the defendant can plead the following
defences.
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1. Defence of Property or self-defence:- This defence is available to person
using reasonable force to resist or prevent dispossession of goods in his
actual possession.
2. Exercising the rights of distraint for rent or damage feasant is recognized
by law and as such will not amount to trespass.
3. Trespass necessitated by the wrongful or negligent act of the plaintiff and
in exercise of one’s own right is a good defence. Removing an obstruction
placed on the high-way unlawfully by the plaintiff can be done physically
using necessary and reasonable force.
4. Entry in obedience to any legal order or authority will be good defence.
5. In the exercise of the right to retake the goods dispossessed the owner can
use reasonable and necessary force and it is a good defence.
6. Jus terti:- The defendant cannot set up a defence that a third party has a
better title to the goods than the plaintiff unless he proves that the act of
trespass committed by him was with the authority of such third party.
However this defence can be availed if it can be proved that the plaintiff
had neither actual nor constructive possession.
II Trespass Abinitio
Just like a trespass abinitio to an immovable property a trespass abinitio in
respect of a movable property will arise if a person in lawful possession of the movable
property abuses or wastes the same or uses them for some other unauthorised
purpose.
III Detenue or Detention
Detenue means the wrongful retention of the possession of goods. It is usually
known as adverse possession of the goods of another. A bailor holding of the goods
after determination of the bailment, a finder of a property refusing to hand over the
same to the true owner are some of the instances of torts of detention in respect of
movable property. In the case of Singh Vs. Ali for certain reasons of illegality the
contract of sale of a lorry between the plaintiff buyer and defendant seller became
void. When the defendant removed the lorry the plaintiff’s possession. It was held
that he had committed the tort to detinue and liable for damages.
IV. Conversion
Conversion not only constitute unjustified denial of title of another person to
the good but also wilful acts which would deprive another person of the use or
possession of the goods. Unlike trespass which is a tort committed against possession,
conversion is a tort committed in respect of ownership of goods or movable property.
Thus only a true owner can complain of conversion, while a person who had mere
possession can also bring an action for trespass.
Richardson Vs. Atkinson
The Defendant after removing some wine from a cask belonging to the plaintiff
poured in some water to make up the deficiency. Th Court held that he was liable for
conversion of the whole cask as he had converted the part he had taken by removing
it from thickest and the remaining wine in the cask was converted when he poured
water and destroyed its identity.
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Ruplal Vs. Union of India
This case has already been dealt with in the chapter vicarious liability. The act
of jawans in removing firewood belonging to the plaintiff and using them for bonfire
was held as conversion and the Union of India was held liable under the doctrine of
Vicarious liability.
Conversion must be an act of taking of the goods. An Omission will not amount
to conversion. In the case of Foudles Vs. Willoughby the act of a boatman in removing
the plaintiff’s horses from the ferry and putting them on shore and taking the plaintiff
alone in the boat was held as not amounting to conversion. The boatman recognised
the plaintiff’s right. His act though will amount to trespass was not conversion.
Hollins Vs. Fowler (1875) L.R. 7 H.L. 757
On B fraudulently obtained possession of cotton from Fowler. B sold the cotton
to Hollins, a cotton broker, who had no knowledge about the Fraud, Hollins resold
the cotton to another person and received only his broker’s commission Hollins
was held liable to fowler for conversion.
Lord Ellengborough C.J. once held that “a person is guilty of conversion who
intermeddles with my property and dispose of it and it is no answer that he acted
under authority from another who had himself no authority to dispose of it. And the
court is governed by the principle of law and not by the hardship of any particular
case.
In the case of Howard Vs. Harris the defendant at the article producer was not
held liable when he lose a manuscript sent to him by the plaintiff, as he had not
asked for the same from the plaintiff.
However wilful destruction will be conversion though the defendant had come
to possess the goods innocently. It the defendant wrongfully detains the goods it is
trespass and if he detains such goods without returning them to me or destroyed or
sells them, then it is conversion.
As between co-owners of goods, generally there can be no conversion unless
the act of one co-owner amounts to wrongful destruction or overt selling of the
goods.
It is generally stated that the finder of a chattel can keep it. This is true except
as against the true owner and the possession of the land on which th chattel was
found. If the finder refuses to return to the owner when demanded, it becomes
conversion.
In the case of armoury Vs. Delamire. the plaintiff a chimney-sweep’s boy found a
jewel. He gave it to the defendant, a goldsmith’s apprentice, to assess its value. The
defendant removed the jewel and offered the setting to the boy and 11/2 d. for the
jewel. The Plaintiff took the setting and refusing the money offered for the jewel
sued the defendant in trover (conversion). The court rejected the plead of the
defendant that the plaintiff was not the owner and held the plaintiff entitled to
maintain the action.
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Defence
In an action for conversion the defendant can plead the following defences.
1. That he has a lien over the goods whether general or particular.
2. Right to stop the goods while in transit. This arises out of contract.
3. By denying the title of the plaintiff when the action is based on title alone.
4. The buyer of goods cannot be held liable when he has purchased the goods
in open market. The seller however can be held liable.
5. Where the goods are taken under orders of court, under distress or in
execution of decree.
Remedies
1. The Plaintiff can retake the goods wherever they are found if the tort of
conversion has been committed in respect of his goods. He can use such
force as is reasonable and necessary for such retaking.
2. The Plaintiff can maintain as action for restoration of the goods converted,
unless the defendant by his labour or finance had improved the quality of
such goods that they are much more in value.
3. The plaintiff can claim for damages which would be the market value of
the goods so converted.
14.8 Suggested Question
1. Emumerate the defences available to the defendant in the action for trespass to
immovable property.
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LESSON - 15

NEGLIGENCE

15.1 Introduction
15.2 Duty to take care
15.3 Breach of Duty
15.4 Suggested Questions
15.1 Introduction
Here we shall see only negligence as an independent torts. Negligence may also
denote a mental element in tortious liability.
To denote the essentials of negligence. Dr.Winfiled states that ‘Negligence as a
tort is the breach of legal duty to take care which results in damage, undesired by
the defendant, to the plaintiff’. Thus it is seen that first the defendant should have
owned a legal duty towards the plaintiff to exercise care in his conduct which falls
within such duty. Secondly there should be a breach of such duty. Thirdly it has
resulted in damage in the plaintiff. If these three conditions are fulfilled the defendant
will be liable to the plaintiff for the tort of negligence.
Here it can be seen that the tort of negligence does not constitute wilful acts. It
is basically non-feasance as well as mis-feasance. It is either doing an act which a
prudent and reasonable man would not do or omission to do something which prudent
man would be expected to do. It is also based principally on the obligation or duty to
do a thing with care. At no point of time it should be forgotten that for any act or
omission to constitute the tort of negligence, there should be a breach of a duty.
Mere carelessness will not be actionable unless a duty to use care has been violated.
The nature of duty of care and the amount of care will depend upon the
circumstances of each case. The amount of care in driving a care through a croweded
street will not be, expected of it the car is driven through a desert.
15.2 Duty to Take Care
As already stated without there being a duty to take care, the wrong-doer will
not be liable for negligence. Thus the plaintiff should establish that the defendant
owed him a duty. It therefore goes without saying that the plaintiff should first prove
that in the circumstances of the case a duty of care was cast upon the defendant
and such duty of care was owed to the plaintiff. Carelessness whether causing damage
or not is actionable unless it amounted to breach of a duty owed to the plaintiff.
There is no definition of a ‘duty’ and the word ‘duty’ may include innumerable
and inexhaustive instances. Thus time and again the question as to what amounts
to a duty is raised in courts and the judges are called upon to decide or this difficult
issue.
The most important and generalised concept of duty was laid down in the case
of Donoghue Vs. Stevenson (1932) A. C. 562. The facts of this case are as follows. A
retailer bought some bottles of ginger-beer from the manufacturer. The bottles were
opaque. The retailer sold one of the bottles to A who was purchasing it as a treat to
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his lady acquaintance. The bottle in addition to the ginger beer combined
decomposed remains of a snail which had found its way into the bottle at the factory.
The young lady who drank some of it alleged that she became seriously ill in
consequence and sued the manufacturer for negligence. The manufacturer pleaded
that there was no contract with the plaintiff. The House of Lords by a majority held
that the manufacturer owed her a duty to take care that there was no abnoxious
matter inside the bottle and that in this case the duty was broken when he had
failed to prevent to decomposed body of snail from entering into the bottle.
Lord Atkins observed in the above case as follows:- “In English law there must
be and is, some general conception of relation giving rise to a duty of care, of which
the particular case found in the books are instances. The liability for negligence,
whether you style it such or treat it as in other systems as a species of “culpa” is no
doubt based upon a general public sentiment of moral wrong doing for which the
fender must pay. But acts or omissions which any moral code would censure cannot
in a practical worked be trade so as to give a right to every person injured by them
to demand relief. In this way rules of law arise which limit the range of complainants
and the extent of their remedy. The rule that you are to love you neighbour and the
lawyer’s question. Who is my neighbour receives a restricted reply. You must take
reasonably foresee would be likely to injure your neighbour. Who, then, in law is my
neighbour? the answer seems to be persons who are so closely and directly affected
by my act that ought reasonably to have them in contemplation as being so affected
when I am directing my mind to the acts or omissions which are called in question.
It was originally thought that unless there was a contractual duty no case of
negligence can arise. By the judgement in the above case the above thought was
held as inapplicable which clearly held that the manufacturers owed a duty to every
customer who is likely to use his products and thus runs the risk of being held liable
for negligence if he had not taken the care to keep the standard of his products or
neglects to avoid dangerous matter getting into his products resulting in injury or
damages to persons who use such products.
Thus the duty of care was extended from as between contracting parties to as
between persons who can be called as ‘neighbours’. The neighbour test proved very
useful in that strangers also were considered as neighbours for purposes of tort of
negligence, when the wrong does could have foreseen such stranger being injured
due to lack of care.
Neighbours were thus considered as person who not only come within physical
or geograpical nearness but also all those who within reasonable foresight as persons
who will b affected by the wrong doers acts.
The scope of duty will vary in each case. The test of neighbourhood depends on
the reasonable forseablity of the injury that is likely to be caused. Thus all persons
affected by the act or omission of the wrong doer are his neighbours and also those
who by reasonable foresight are likely to be affected.
In a reported Indian case.. I.R. 1975 Bombay 306, the Court while holding that
the plaintiff failed to prove negligence on the part of the company doctor held the
following as essential for a tort of neglignce: In an action for negligence against a
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doctor as in any other action for negligence the plaintiff has to prove: (1) that the
defendant was under a duty to take a reasonable care towards the plaintiff to avoid
a damage complained of or not to cause a damage to the plaintiff by failure to use
reasonable care: (2) that there was a breach of duty on the part of the defendant;
and (3) that the breach of duty was the legal cause of the damage complained of and
such damage was reasonably foreseeable.
A degree of care as contemplated in modern society is the care expected of a
‘prudent man’ in a given situation. The degree of care will depend on the
circumstances of the case and the situation that warrants the care to be taken. For
instance one cannot expect a higher degree of care from a qualified doctor than from
a nurse in the treatment of patients. In the same way a skilled surgeon is expected
to exercise a higher degree of care than a just qualified doctor. Thus a person with
no skill undertaking a skilled work itself will show neglignce. If the risk is small,
then only a slight amount of care will be expected. Thus a person who has undertaken
a higher degree of duty will be expected to exercise a higher degree of care.
15.3 Breach of Duty
In the case of Blyth Vs. Birmingham Waterworks Co., the test for deciding whether
there has been a breach of duty was laid down as follows: “Negligence is omission to
do something which a reasonable man, guided upon those considerations which
ordinarily regulate the conduct of human affairs, would do, or doing something
which a prudent and reasonable man would not do.”
The reasonable foresight and reasonable care is based on what a prudent man
would be expected to do or not to do a thing. It is not expected that one should do an
extraordinary thing or take extraordinary care in the circumstances of each case.
The standards of care has been laid down only that of an ordinary prudent man. It
is not defence to state that one did a thing to the best of his judgement or to the best
of his reasoning unless such judgement or reasoning would be those expected of a
prudent man.
The standard of foresight is fixed. The Court will have to decide each case on
the facts and circumstances surrounding the act complained of, and to see it
objectively and decide whether a reasonable man would have done the thing or
would have omitted to do the thing as the case may be, in the given circumstances
of the case.
Bourhil Vs. Young
‘X’, eight months pregant, got down from a tram car. As the driver of the tram
car was helping to put her fish basket on her back, Y driving a motor cycle, passed
the tram car and immediately afterwards negligently collided with Z’s motor car. Y
died at the accident spot. ‘X though had heard the collision, did not see the same as
her view was obstructed by the tram. The accident had occurred about fifteen yards
from where X was standing after Y’s body was removed she approached the spot and
on seeing the blood left on the road suffered a nervous shock and gave birth to a still
born child due to the nervous shock. X sued the legal representatives of Y for Y’s
negligence. The House of Lords held that Y owed her no duty and hence she could
no maintain the action. The reason the court applied in rejective the claim was
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based on the conclusion that the injury X in the circumstances of the case was one
not foreseeable by a prudent man and thus the consequences was that Y owed her
no duty.
Home Office Vs. Dorset Yacht Co. Ltd.
A group of young delinquents were kept on an island for training by the Home
Office. Due to the negligence of the officers in charge. Some youngsters escaped and
boarding a each moved to the island and while attempting to said it collided with the
plaintiff’s yacht and caused damage to it. In an action for damages, the court
concluded that the damage was plainly foreseeable as consequence of allowing the
youngsters to escape from control. The Home Office brought a defence that the
training of delinquents was a duty of the Crown and as such there can be no private
remedy for breach of a statutory duty. The defence was based on the decision in
Rondel Vs. Worsely in which it was reasoned that in order to do a duty to the court
and in the administration of justice, a barrister must be relieved of the possibility
that actions for negligence might be brought against him by disgrunted clients, and
it was held that a barrister owns no legal duty of care to his client, so far as his work
is in the conduct of litigation. The Court rejective the above defence head the
defendants liable.
Palsgraf Vs. Island R.R.
While passenger was being assisted by two train guards, the parcel in his hand
was carelessly knocked down by them. The parcel which fell under a moving train
exploded as it contained some fire works. Due to the explosion some scale feel on
the plaintiff who was standing some distance away from where the explosion occured.
When she sued the Railway Company for damages it was held that though the two
guards owed a duty to the passenger from whose hands the parcel was knocked
down. They owed no duty to the plaintiff as damage was one not foreseeable. As the
plaintiff was held beyond the range of foreseeable peril she was held as not entitled
to damages.
When there is a likelihood of damage being caused by an act, then also such
act will be negligence. Thus not only the test of ‘reasonable foresight’ is relevant but
also the likelihood of injury test is also good to decide if an act will constitute
negligence.
Bolton Vs. Jones
A cricket ground was having as 17 feet fence all round it. A ball hit by a batsman
went over the fence and injured the plaintiff who was standing outside her house on
a suburban highway. Such incident had occurred only 6 times previously during a
period of 30 years. The House of Lords held the likelihood of such injury occurring is
so rare, that the Cricket Club (defendants) cannot be help liable for not taking any
precaution against it.
Medical Personal
As already stated skilled personal are expected to exercise more care in their
profession. A Doctor, Surgeon or a Dentist owe to their patients a duty to take
reasonable care and to exercise their skill to cure the patients It is however not
expected that they should exercise the highest skill. It has also been held that if for
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any reason a method is changed or some other method is used will not merely due
to such fact be negligence unless some other things of negligence are also proved.
Roe Vs. Ministry of Health
In 1947. Dr. G. an anaesthetist administered spinal anaesthetic to R’ who was
a patient in that hospital. Some phenol had gone into the glass ampoule containing
the anaesthetic. Thus the anaesthetic was contaminated and as a result R was
permanently paralysed from the waist down Dr. G.Knowing the risk of injecting
phenol had done a visual examination of the ampoule before administering the
contents to R. Though he was not aware of the crack in the ampoule by which the
phenol had gave in it was urged that he could have used a colour to the phenol
when the anaesthetic ampoule was kept in it so that the contamination could have
been easily observed. The court held that he was not negligent as the risk of invisible
crack in ampoules were known only in 1951 and his act has to be judged as the
matter stood in 1947.
Dr. Laxman Balkrishna Joshi Vs. Dr. Trimback Bapu Godpole A.I.R. (1969) S.C. 128
The defendant, a doctor, without administering any anaesthetic, attempted to
locate a fracture suffered by a patient. Due to extreme pain the patient suffered a
nervous shock and died. The Supreme Court held that the doctor was negligent.
The Court observed as follows. A Persons who holds out himself ready to give medical
advice and treatment impliedly undertakes that he is possessed of skill and
knowledge for that purpose. Such a person when consulted by a patient owes him
certain duties, viz, a duty of care in deciding whether to undertake this case the
duty of care in deciding what treatment to give or a duty of care in the administration
of that treatment. A branch of any of these duties gives a right of action for negligence
to the patient. The practitioner must bring to his task a reasonable degree of skill
and knowledge and must exercise a reasonable degree of care. Neither the very
highest nor a very low degree of care and competence judged in the light of particular
circumstances of each case is what the law requires. The doctor, no doubt, has a
discretion in choosing treatment which he proposes to give to the patient and such
discretion is relatively ample in cases of emergency’.
In the reported case A.I.R. 1975 Bombay 306 the court while discussing the
liability of doctors observed as follows: “The standard of care and skill to satisfy the
duty in tort is that of the ordinary competent medial practitioner exercising the
ordinary degree of professional skill. A defendant charged with negligence can clear
himself if he shows that he acted in accordance with general and approved practice.
It is not required in discharge of his duty of care that he should use the highest
decree of skill, since they may never be acquired Even deviation from normal
professional practice is not necessarily evidence of negligence.
A practitioner can only be held liable if his diagnosis is not palpably wrong as
to prove negligence, that is to say, if his mistake is of such a nature as to imply an
absence of reasonable skill and care on his part regard being had to the ordinary
level of skill in the profession.
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Users of the Highway
A user of a highway owes a duty to all persons using the same and also towards
persons and property not on the highway. The Courts always hold that the degree of
care towards, other persons using the highway is higher that the duty of care to the
latter. There are numerous laws and rules which govern the conduct of the users of
highway and regulate the way they should use such highways. Failure to observe
such rules can be put forth as evidence in proving negligence. For instance over
speeding, cutting the prescribed boundary lines will to show that the person violating
such rules had been negligent.
To leave vehicles in such a way unattended, that there is likely hood of such
vehicles moving and injuring persons will constitute negligence. To leave a car on
a slope in such a way than a naughty child may meddle with the same thereby
causing the car to move on it own and injure persons was held to be negligence.
The degree of care varies according to the circumstances of the case. As said
earlier a person driving through a busy road is expected to exercise a higher degree
of caution that a person driving through an empty highway. The degree of care should
be even higher, that expected on a busy road, when children are around. All such
things is at one description of the Courts according to the circumstances of each
case.
Where accident is caused due to Municipal Corporation’s failure to maintain
its roadside trees free from danger or passers-by the doctrine of res-ipsa loquitur
applies to the case culpable negligence should be attributed to the Corporation. The
Corporation was held liable.
15.4 Suggested Questions
1. Discuss the Doctrine of ‘Risipsa loquitter’ in the light of decided cases.
2. What is meant by tort of Negligence? what are its essentials.
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LESSON - 16

NEGLIGENCE (CONTD.)

16.1 Res Ipso Loquitor

16.2 Defences
16.3 Doctrine of Alternate Danger
16.4 Suggested Questions
16.1 Res Ipsa Loquitur
The above maxim means the thing speaks for itself. That is to say that the act
of the wrong does is so plain and that the proof of damage itself will go to show that
the defendant was negligent. In other words on pro of certain damages the court will
draw natural presumption that the cause of such damage was due to negligence. It
is in such cases that the burden of proving that the act causing the damage was not
negligent heavily lies on the defendant, once the plaintiff shows the injury.
One of the most reasoned observation on the above principle was made in the
case of Scott Vs. London and St. Katherine Docks. “There must be reasonable evidence
of negligence, but where the thing is shown to be under the management of the
defendant or his servants, and the accident is such as in the ordinary course of
things does not happen in those who have the management, use proper care, it
affords reasonable evidence, in the absence of explanation by the defendant that
the accident across from want of care”. While the plaintiff, a customs officer was
passing the door way of the defendant’s ware house some bages of sugar fell on him
an he was injured. The principle of res-ipsa loquitur was applied and the defendant
was held liable for negligence.
When the plaintiff invokes this principle, all that he has to prove is the damage
or injury and the defendant will have to show sufficient excuse of prove that there
was no negligence or no duty to take care.
It is therefore seen that to raise this principle in an action for negligence, the
injury or damage caused is such that it could not have happened if proper care was
taken and it should be proved that the thing or act causing the damage or injury
was under the management or control of the defendant.
Byrne Vs. Boodle
A flour barrel rolled down on open door way and fell on the plaintiff who was
passing by. The barrel came out of the defendant’s ware houses. It was stated that
it is common experience which shows that a barrel will not fall from an upstairs
window on to passing by in the street if those in charge take proper care.
Gee Vs. Metropolitan Railway
This is a case when the door of an underground train flew open when the plaintiff
leant on it lightly, thus resulting in injury to him. It was held that there was evidence
of negligence.
Thus to raise the doctrine of res ipsa loquitur the thing causing the damage
should have been under the control of the defendant and the injury or damage, is of
such nature that it would not have been caused without negligence.
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Municipal corporation of Delhi Vs. Sobhagwanti
A clock tower belong to the Municipal Corporation of Delhi situated opposite
the Delhi Town Hall collapsed and killed a number of persons. The clock tower was
89 years old and such constructions as that of the clock tower had only a life span
of 40 to 45 years. The Supreme Court applied the above principle and held the
defendants liable A.I.R. 1971 Madhya Pradesh 5.
In the above case decided by the Madhya Pradesh High Court is was observed
as follows. In actions for negligence the legal burden of proof rests on the claimant.
But barring exceptional cases it may not be possible for the claimant to know what
precisely led to the accident. It may peculiarly be within the means of knowledge of
the driver or the owner. This hardships to the claimant is relieved by the application
of the maxim “res ipsa loquitur” which is a rule of evidence. There are certain
happening which do not occur normally unless there is negligence. Therefore, in the
case of such happenings the claimant is entitled to rely upon the mere happening of
such accident as evidence of negligence. (AIR 1965 SC. 17)
A.I.R. 1965 SC. 17.
State of Punjab Vs. Ms. Modern Cultivator
It was held that ‘In an action for damages for inundation of plaintiff’s land due
to breach of canal in the management of the defendant, the rule of res ipsa loquiur
would apply because canal banks are not breached if those in management take
proper car and the breach itself would be prima facie proof of negligence unless the
defendant can show that the breach was due to act of God for to act of third party or
any other thing. But the principle if it be one, cannot always he safely applied were
the facts before the court are not the whole facts. The principle of res ispa loquitur
had its origin in the falling of a barrel of flour from a first floor window on a passer-
by but it has been extended to situations quite different. It is a rule of evidence and
not of liability. It is not sufficient to say res ispa loquitur because the danger is that
facts may not always tell the whole story and if there is something which held how
can the thing be said to speak for itself.
Thus holding the above rule of evidence of negligence as good, the court cautions
against unrestricted use of such principle of evidence.
16.2 Defences
‘Volenti non fit injuria’ is a defence common to all types of torts and as such it
will also be a defence to an action for negligence. In the same way exercise of sovereign
power is also a good defence for negligence. In reported case in A.I.R. 1960 Punjab
30, it was observed as follows: “Even if the principle of res ipsa loquitur is to be
applied to the case. Highways Department is not liable in tort for highway accident
because, making and maintenance of highways is one of the functions of the
Government in exercise of its sovereign powers. Therefore suit for damages against
Highways Department is not maintainable”.
Besides the above defence, a defendant can raise the following defence (i) Vis
Major (ii) Inevitable accident and (iii) Contributory negligence of the plaintiff
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(1) vis Major
We have already traversed though the defence of Vis Major or act of God in one
of the previous chapters Act of God are situations arising out of natural causes
which are so violent and sudden, that it is beyond the control of man something
which a human foresight could not have foreseen. Cyclones, tornadoes hurricanes
tidal waves earth quakes are some of the instances which will be considered as act
of God.
In the case of A.I.R.1975 Punjab 295, it was held that where the accident takes
place as a result of dozing off of the driver, it is not a case of act of God, but a case
of negligence on the part of the driver.
Nichols Vs. Marsland
Where the artificial lakes built by the defendant on his land had breached due
to unexpected heavy rains and broke some country bridges it was held as act of
God.
2. Inevitable Accident
Sir Frederick Pollock defines an inevitable accident as an accident “not avoidable
by any such precautions as a reasonable man, doing such an act then and there
could be expected to take”.
Cleghorn Vs. Coldham
While the defendant was demonstrating stroke play of golf to another player,
the other player’s brother who was standing behind was hit on the face. The plea of
inevitable accident was not accepted.
The plea will be accepted only if the accident was of such nature that defendant
could not have avoided even if he had taken precautions as an ordinary reasonable
man would be expected to take in such circumstances.
In the case of Griffiths Vs. Liverpool Corporations it was observed that “It may be
that if Highway authority could show that no amount of reasonable care on its part
could have prevented the danger, the common law defence of inevitable accident
would be available to it.
3. Contributory Negligence
Where the injury suffered by the plaintiff was partly due to the negligence of the
defendant and partly due to the negligence of the plaintiff, then at common law the
plaintiff can recover nothing. Thus in the case of Sunders Vs. Spencer it was observed
as follows:- “Thus the strict liability of an innkeeper for the safe keeping of his
guest’s goods was negatived if the goods were stolen by the guest’s own fault.
Butterfly Vs. Forrester
Passage through a road was wrongfully obstructed by A by putting a pole across.
It. B who was riding vigorously on the road at dusk was over thrown by the pole and
injured. At that time the pole could be seen from a distance of 10 yards. The Court
held that ‘A’ was not liable to B. It was reasoned that” If he had used ordinary care
he must have seen the obstruction so that the accident appeared to happen entirely
from his own fault and it was added that “One person being at fault will not dispense
with another’s using ordinary care or himself”.
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Since the rule as laid down above was causing great hardship to persons whose
contribution of negligence was so slight, that above rule was modified by the rule of
‘last opportunity’. By application of this rule the injured who were also negligent
were able to get compensation by proving that the defendant could have avoided the
accident while they could not.
In the case of Davis Vs. Mann, the above rule was applied. In that case the
plaintiff tied his ‘donkey’s legs to prevent it from going far off and left it on the road.
The defendant who was driving his van at a good speed knocked down the donkey
and killed it. The defendants was held liable to the plaintiff inrespect of the plaintiff’s
own fault. It was observed that “Although the ass may have been wrongfully there,
still the defendant was bound to go along the road at such a pace as would be likely
to prevent mischief. Were this not so, a man might justify the driving over goods left
on a public highway or even a man lying asleep there or the purposely running
against a carriage going on the wrong side of the road.
The last opportunity rule was very confusing and it was worsened when in the
case of British Columbia Electric Railway Vs. Loach, the court extended the above
rule as ‘constructive last opportunity’. Thus if the defendant had the last opportunity
to avoid the accident, though out of his own choice, he was still held liable. Thus the
above rule was severely criticized when the Maritime Conventions Act was passed,
by which apportionment of damages between the plaintiff and defendant become
possible by the application of the principal of contributory negligence. In the case of
Admiralty Commissioners Vs. S.S. Volute the House of Lords held that if there was no
sufficient separation of time, place or circumstances between the plaintiff’s negligence
and defendant’s negligence, then the plaintiff’s negligence will be held as contributory
to the damage or injury eventhough the defendants negligence was subsequent.
The Law Reform (Contributory negligence) Act, 1945 which was based on the
same principles as applied in the Maritime Conventions Act 1911. Provided for
apportionment of damages based an contributory negligence on land, where both
parties are negligent.
Section I (1) of the Act of 1945 provides as follows:- “Where any person suffers
damages as the result partly of his own fault and partly of the fault of any other
person or persons, a claim in respect of that damage shall not be defeated by reason
of the fault of the person suffering the damage but the damages, recoverable in
respect there of shall be reduced to such extent as the Court things just and equitable
having regard to that claimant’s share in the responsibility for the damage. It should
be seen that the Act did not alter the existing rule as to contributory negligence, but
only altered the law as to the damages recoverable when contributory negligence is
proved.
A husband when he sues for the damage caused to him by any injury suffered
by his wife due to negligence of the defendant, his claim is based on the damages
suffered by him and the fact of contributory negligence of his wife neither affects his
right nor does it mitigates the quantum of damages he is entitled for.
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O Connel Vs. Jackson
Where an accident occured solely due to the negligence of the defendants and
the plaintiff’s claim for damages was reduced by 15% as he was not wearing a crash
element which the Court held would have reduced the injury.
In Indian where there is no equal law to the Act 1945 in England, the Courts
have been applying the principle of contributory negligence.
Hansraj Vs. Tram Co:
The Plaintiff was attempting to get in a moving tram and the foot board which
was lose gate way and as result he fell down and suffered injuries. It was held that
he cannot recover damages as the accident occurred due to his own negligence. The
Court reasoned that if he had boarded the ran while it was stationary the accident
would not have occured.
16.3 Doctrine of alternate danger
Suppose due to the defendant’s negligence the plaintiff is placed in danger or a
great peril and he takes an action to avoid or escape such danger, which may turn
out to be a wrong move, and sustains injury or damage the defendant will be held
liable. There are situations where plaintiff had to necessarily act at the situation
creates an apprehension of danger by imminent injury.
Jones Vs. Boyse
The Plaintiff was a passenger on top of the defendant’s coach. As a result of
breaking of a defective rein, the coach was in imminent danger of being over turned.
The plaintiff jumped from the top and broke his leg. The coach however did not over
turn. The court held that in such a situation a reasonable and prudent man would
have done the same thing and awarded damages to the plaintiff.
16.4 Suggested Question
1. Discuss the Doctine of “Resipsa Loquiter’ inthe light of divided cases.
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LESSON - 17

NUISANCE AND INJURY TO SERVITUDES

17.1 Introduction
17.2 Remedies
17.3 Private Nuisance
17.4 Tress Pass - Nuisance
17.5 Essentials - Private Nuisance
17.6 Damages
17.7 Defences
17.8 Suggested Questions
17.1 Introduction
Nuisance can be divided as public nuisance and private nuisance. Public
nuisance is a crime and private nuisance is a tort.
Public Nuisance
A public Nuisance or common Nuisance as it is also called one which affects
the reasonable comfort and convenience of life of the public at large. It is undue
interference with the rights of the public such nuisance arising out of an act or
omission in the discharge of a legal duty. It is an injury or inconvenience caused to
the public or the people in general who may be living at a colony or in close vicinity
of each other. Such act or omission must be one which causes an injury obstruction
danger or annoyance to a number of persons who are entitled to public rights. As
said earlier a public nuisance is a crime and thus punishable. Some examples are
obstructing the highway, brothel keeping, digging trenches, diverting sewage on the
public road and so many others. It is held that if a nuisance is cause to the public or
to part of it, no civil action can be brought for the nuisance. The reason being to
avoid multiplicity of litigation.
However to the general rule that no civil action lies on a public nuisance, there
is an exception. It is cases in which the injured person proves that he has suffered
in some way a particular or special loss over and above the ordinary inconvenience
suffered by the public at large. In such cases a private individual can maintain an
action for damages on public nuisance. In such cases the plaintiff should prove
some special damages e.g. he had broken his leg by falling into a trench dug by the
defendant. In such cases the courts will have to decide whether the damage suffered
is substantial and is a direct and not an indirect or consequent result of the nuisance
caused by defendants.
Rose V. Miles
The defendant obstructed a public navigable creek by wrongfully moving his
barge across it. Due to the same the plaintiff who had started a journey had to incur
heavy loss as he was obliged to unload his barges and transport the goods by land.
The court held that there was sufficient damage to support an action of nuisance.
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In a reported Indian case the public and private nuisance was dealt by the
court. MBLJ 1955 MGR 2115 “Nuisance are of two kinds, public and private. A
public nuisance is also known as common nuisance, and constitutes primarily, a
criminal offence such as keeping a gambling house, keeping brothe/s or obstruction
of a highway. A public nuisance can also become actionable, when the act complained
of constitutes some from of tort as well, such as the obstruction of a highway is a
public nuisance but if it causes any special or peculiar damage to an individual a
civil suit can also lie on the other hand a private nuisance consists of the wrongful
disturbance of an eastment or any right to which a person is entitled. The basic
doctrine of the law of private nuisance described by Latin maxim sic uteri tuo ut
alienum non laeds. which means so use your own property as not to injure your
neighbours. The rule with regard to pubic nuisance is different; it is only actionable
at the suit of a private individual on proof of special damage. A neighbour who sets
up a flour mill should so use it as to cause no injury of damage to his neighbours.
AIR 1960 All 632
A private nuisance is a civil wrong but a public nuisance is a criminal offence:
an act not warranted by law or an omission to discharge a legal duty which act or
omission obstructs or causes inconvenience or damage to the public in the exercise
of rights common to all the subjects. Public and private nuisance are not in reality
two species of the same genus.
17.2 Remedies
1. It is punishable as a crime.
2. Under Section 91 of the Civil Procedure Code, the Advocate General or
any two or more persons with his consent can maintain an action for
abatement of the nuisance complained off.
3. As stated above by the application of the exception a Civil action can be
maintained by a private individual providing special or peculiar damages.
17.3 Private Nuisance
A private nuisance has been described as ‘unlawful interference’ with person’s
use or enjoyment or land, or some right over or in connection with it. Nuisance is
essentially a continuous or recurrent condition of activity which unduly interferes
or cause inconvenience with use or enjoyment of land. Not every slight annoyance is
actionable. Fire, smoke sewage escape of effluents are some of the instances of
nuisance. The whole law of private nuisance depends on the balancing of two
conflicting interest, namely interest of one occupier using his land as he thinks fit
and that of the quiet and peaceful enjoyment of the neighbouring occupier which is
reciprocal. It is not as though all injury or inconvenience or interference are actionable
nuisance. The law does recognise that a person can use his land so as to injure
another without committing nuisance. Only if he uses his land unlawfully and
unreasonably that it becomes nuisance.
17.4 Trespass - nuisance
1. When there is a direct physical interference with the plaintiff’s possession
of land though some material or tangible object, it is trespass. In nuisance,
there is only consequential interference and not a direct one. Planting a
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tree on another person’s land is trespass. On the other hand if the branches
of a tree on your land spreads its branches over the neighbour’s land it is
nuisance. To throw stones on you neighbour’s land is trespass, but to let
the stones of your old dilapidated chimney on to your neighbour’s land is
nuisance.
2. Trespass is interference though some material or tangible object. If the
object causing the interference is not material or tangible such interference
will amount only to nuisance Notice, vibration, smoke, are some types of
nuisance.
3. Trespass is actionable per se (i.e) without proof of damage or in the absence
of damage Nuisance is actionable only on proof of damage.
4. Public nuisance is a crime while a private nuisance is a tort. However a
civil action for damages will lie for a public nuisance in exceptional cases
where the plaintiff has suffered a special or peculiar damage.
5. Private nuisance can be abated by action by the individual affected. But
an individual affected by public nuisance can bring an action for abatement
of such public nuisance only if he shows special or peculiar damage.
6. A private nuisance can get prescriptive rights becomes legal by continuing
uninterruptedly for the statutory period. Public nuisance can never be
legalised.
Nuisance of Highways
Nuisance caused on highways are one class of public nuisance for which the
case law has developed to a great extent. This also includes passage by river or
navigable canals. Highways also include bridges on a public road.
We have already seen the case of Rose V. Miles. In Campb V. Paddington
Corporation. the plaintiff was the owner of building in London. The final procession
of king Edwai VI was to pass though the highway on which the plaintiff house was
situated. From the windows of the plaintiff building the procession can be very clearly
seen and the plaintiff had accepted some money from a few people to allow them to
witness the procession from her windows. The defendant corporation put up an
unauthorised construction in front of the windows thus blocking the view. When the
plaintiff sued the corporation for damage the court held that she was entitled to
damages though the nuisance complained of was a public nuisance.
Barder V. Penley
Due to heavy rush at the defendant’s theatre, it was causing considerable
inconvenience for tenants of the plaintiff from entering into the boarding house. It
was held to be nuisance and the defendant was held as responsible.
If any building or other objects like advertising boards when project on the
highway as held as nuisance. In the case of Tarry Vs. Ashton the occupier of a public
house was held liable for nuisance when a heavy lamp projecting or the highway
from the building fell down and injured a passer-by.
17.5 Private nuisance-Essentials
As already defined private nuisance is unreasonable interference with the use
and enjoyment of another person’s land. It may be physical damage or injury to
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eastments and other servitudes. It may also take the shape of discom for or disturbance
as an injury to the health of the occupier cause by smoke, dust. The essentials to
make a private nuisance are (1) unreasonable interference (2) interference to another
person’s land, servitudes or eastments attached to it or interference in use and
enjoyment of such land and (3) damage.
1. Unreasonable Interference
Not every kind of interference can be called as nuisance. It is only unreasonable
and substantial interference that are actionable as nuisance. It was once stated as
follows: “If a man lives in a town, it is necessary that he should subject himself to
the consequences of those operations of trade which may be carried on in his
immediate locality. Which are actually necessary for trade and commerce, and also
for the enjoyment of property, and for the benefit of the inhabitants of the town and
of the public at large”. Nuisance necessarily depends on the extent of harm and the
nature of the locality where it is committed. The leading case is St. Helen’s Smelting
Co. V. Tripping. The facts are as follows: The plaintiff bought an estate in a
manufacturing area. Near that place some persons were having a copper smelting
company. The trees on the plaintiff’s estate were very much affected by the vapours
emanating from the factory. The House of Lords held the defendants liable.
When deciding what acts or omissions are reasonable the courts will have to
take into consideration the abnormal sensitivity in either persons or property. The
court will not consider a thing as causing nuisance if it is intolerable or inconvenient
to a very sensitive man which may not be so to a normal person. The court will not
consider a complaint by a normal person regarding some fumes because he has an
unusually sensitive nose, if the same fumes will not make a normal person complain
of. In the case of Health V. Brighton (Mayou of) a trustee, of a Brighton church
complained of then lose from the defendant’s power station. The plaintiff could not
prove that due to such noise of the number of persons attending had diminished
that the attention of the congregation was distracted. The court also found that
such noise had not prevented the plaintiff from or conducting his services. Not was
it proved that the noise was such that it would distract a healthy person’s attention
to the services. As such the court refused to grant an injunction.
In the case of Hollywood Silver Fox Form Ltd. Vs. Emment decided in 1936, the
decision in Christie V. Davey was followed. In order to scare the silver foxes breeding
on the plaintiff’s land the defendant deliberately used guns to be fired on his own
land. As the animals were very sensitive the noise caused by the firing had done
extensive damage. The court held that the intention is relevant to determine the
liability and not only award damages but also injunction against the defendant.
2. Interference
The interference need not come from the defendant’s land. Though usually and
in majority of cases it emanates from the defendant’s land, there will be cases when
a trespasser or a contractor doing work on the land may commit nuisance. In the
case of South port Corporation, Vs. Esso Petroleum Co. Ltd. Delvin J, observed “I can
see no reason why. If the defendant has a licence for trespasser misuse someone
else’s land, he should not be liable for a nuisance in the same way as an adjoining
occupied would be”.
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Injurs to Servitudes
Servitudes are right attached to a piece of land, which give the owner or occupier
a “dominant tenement” and imposing burden or corresponding duty on the
neighbouring land a “servient tenement”. Nuisance also provides remedy for
infringement of a servitude such as obstruction of a right of way blocking of light.
When there is an infringement or injury to a servitude is it no excuse to claim that
the conduct of the defendant was good or the convenience of the locality or that it is
for the general benefit of the community. The plaintiffs right to servitudes attached
to that land is paramount and if the neighbour cannot pursue his lawful activities
without infringing a conduct of the neighbouring land. He should not carry on such
activity. The rights of servitude are acquired under law and in India the Indian
Eastments Act provides for the same.
What we had seen above are servitudes attached to the land vested with the
owner or the occupier. There are two other types of servitudes not owned by the
owner of the land. One is called as profit-prendre. The owner of such a servitude has
a right to take some benefit or profit from the land of another. For example a person
may have such a servitude to take way the fruits that grow in the orchard of another
person or a right of fishing on the lake which is on another person’s land. Thus
servitude gives the owner a right to sue or benefit out of the land without
appropriation. A licence may get a subordinate right to enjoy the property and to
enjoy a servitude.
While a person having a profit-a-prendre can sue for nuisance, a licences cannot
sue for nuisance.
Regarding the use and enjoyment of the land, here are some of the casementary
rights that may go along with the land. (1) Right to water (2) Right to support
(3) Right to air (4) Right to fresh access to light (5) Right of way (6) Right of privacy
(7) Right of prospect and (8) Right of Common.
The right as pointed out from 1 to 5 are natural eastmentary rights of any land.
There can be no excuse for infringement of any of them.
1. Right to Water
Obstruction of the flow of a natural stream will amount to infringement of the
right to water and thus is actionable per se. W e have already seen that such right
only applies to the right to flow of water on the surface of the land not underground.
2. Right to Support
Every land has a right or support from the neighbouring land. This right also
extends to buildings and constructions. If my neighbour excavates his land use in
such a way that the lateral support for my land or my building is removed or affected.
I shall have a cause of action against my neighbour for nuisance. A person cannot
use his land in such a way that the lateral vertical support it gives to the next land
is removed.
3. Right to air
This right should be acquired by grant or by prescription. As such right is only
in respect of the right to pure air (as flow of air cannot be completely deprived) an
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infringement will arise only if the air is polluted and the plaintiff proves injury to
his health due to such impure air.
4. Right to light
Where it is ancient light, that is used for long time, the land has a right to the
same as will be necessary for the comfortable use and enjoyment of the
superstructure. It also depends upon the use to which building is put for. A right to
light is acquired by prescription or by grant.
5. Right to way
This right can be acquired by prescription. custom, grant or by necessity.
6. Right of privacy
Every person living has a right to privacy. When a person lived in a house he is
entitled to privacy from the inquisitive eyes of his neighbours. A right of privacy
cannot be acquired by prescription. It is only a grant of licence or a custom that
vests a person with a right to privacy. Invasion of the right to privacy by opening new
windows or door in order to look into the neighbours house or portion of house
which is covered or secluded are actionable.
7. Right of Prospect
Such right are not recognized by courts.
8. Right of common
where a right is enjoyed commonly by all person are recognized by the law.
Where all persons have right of pasture or rights of fishery and person obstructing
another from exercising such right will be liable for nuisance. Such infringement is
actionable.
17.6 Damages
The third essential element of an action for nuisance is damages. An action for
nuisance can be maintained only on proof of action damage. The Indian Eastments
Act provides in Section 33 for an action for infringement of an easementary right
only on proof of substantial loss or damages. However it holds that an act which
affects the evidence of an easementary right or materially diminishes the value of
the dominant tenement will be considered as substantial damages for the purpose
of maintaining an action. Sometimes the law itself presumes, damages, thus shifting
the prudent on the defendant to prove absence of damage. As already stated in a
case of public nuisance a private individual can bring an action for damages only on
proof of special or peculiar damages.
17.7 Defences
The general defences of inevitable accident and Vis Major or act of God are
available in an action for nuisance. When the defendant has acquired a right by
prescription he can plead the same in defence in an action for nuisance. As already
stated a right by prescription is governed by the Indian Easments Act which has
fixed the period for acquiring a right as 20 years of continuous uninterrupted open
enjoyment of an eastment. When any right is acquired by a grant the defendant can
set up his defence on such grant.
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The defendant can also plead that the act complained as nuisance under
statutory authority or in the exercise of a sovereign power. In AIR 1955 Pat 432 it
was held that no action will lie against the District Board when tree planted by it on
the road side damaged the plaintiff’s house when it fell, as its act in planting the
tree was done in the exercise of an absolute power given to under the statue or for
its necessary consequence.
In another reported case AIR 1953 Saurashtra 97, it was held that the laying of
drainage on the land of another by the Bombay Municipality was not actionable as
nuisance since the same is authorised by the Bombay Municipal Borough Act of
1925.
What are not defences
It is not a good defence for the wrong doer to claim that other persons are also
committing the same of nuisance. The defendant cannot claim that the act complained
of was out of a reasonable use of his property.
Similarly it is no defence to claim that the plaintiff came to the nuisance with
full knowledge. The case of St. Henlen’s Smelting co V. Tripping may be quoted for
this. Where a nuisance is a continuing one the defendant should immediately stop
or remove the nuisance and it is no defence to claim that he is taking all necessary
steps to prevent the nuisance from continuing.
As a remedial measure the plaintiff can remove or stop the nuisance if the
same can be done peacefully. On the other hand he can approach the court for an
injunction for removal or obtainment of a continuing nuisance and also claim for
damages by proving actual damage.
17.8 Suggested Question
1. Explain the illustrate the tort of misance point out the difference between public
nuisance and private nuisance.
2. Write a note on
1) Tresspass
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LESSON - 18

THE RULE IN RYLANDS V. FLETCHER

18.1 Introduction
18.2 Rule in Ryland and Fletcher
18.3 Defences
18.4 Liability for Animals
18.5 Defences
18.6 General Liability in Tort for Animals
18.7 Incidence of Liability
18.8 Liability for Dangerous Structures or Premises
18.9 Occupiers Liability Act 1957
18.10 Law in India
18.11 Suggested Questions
18.1 Introduction
The tort of strict liability had its origin in nuisance but later developed as a
separate tort. This is the rule in Rylands, V. Fletcher.
18.2 Rule in Ryland and Fletcher
The facts of the above case are as follows: B, a mill owner employed independent
contractors to construct a reservoir on his land for making provision of water for his
mill. The constructors while constructing the reservoir on B’s land came upon some
old shafts and passages. The shafts and passages are prepared to be filed with earth
and no one suspected that they connected with the mines of A. a neighbour of B.
The contractors, who were apparently competent, did not block the shafts and
passage. When the reservoir was filled up with water, the water from it burst through
the old shafts and flooded to mines. It was a fact that B was not negligent, although
the contractors employed by him had been. When A sued B, the House of Lords held
B liable.
After the lower court proceedings the case came up before the Court of Exchequer
which held the case in favour of the defendant. The appellate Court namely the
Court of Excequcer chamber unanlmously held in favour of the plaintiff thus reversing
the lower court decision and the House of Lords upheld the decision in favour of
plaintiff. The doctrine propounded by Blackburn J of the Evchequer chamber was
as follows: “We think that the true rule of law is that the person who for his own
purpose brings on his lands and collects and keeps there anything likely to do mischief
if it escapes, must keep it at his peril, and, if he does not so, its prima facie answerable
for all the damage which is the natural consequence of its escape”.
It was further propounded as follows. He can excuse himself by showing that
the escape was owing to the plaintiff’s default: or perhaps that the escape was the
consequence of Vis Major or the act of God (it was held that there is no such excuse
in this case)... and it seems but reasonable and just that the neighbour, who has
brought something on his own property which was not naturally there, harmless to
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others so long as it is confined to his own property, but which he knows to be
mischievous if it gets on his neighbour’s should be obliged to make good the damage
which ensue if he does not succeed in confining it to his own property. But for his
act in bringing it there, no mischief could have accrued, and it seems but just that
he should at his answer for the natural and anticipated consequences. And upon
authority, this we think is established to be the law whether the things so brought
be beasts, or water, or filth, or stenches”.
Thus the doctrine of ‘strict liability was born’ and it continues to this date
growing stronger and more complicated.
Before the case there were instances when water had been collected in huge
quantity. But in those cases the same way by powerful corporations or statutory
bodies like the Railways or water companies who had acted under statutory authority
which authority at the same time made them liable for damages if such water
excepted. Here in the above case there was no liability under a statute. Trespass
was not applicable as the act was not direct but only consential Negligence could
not be applied as the defendant was no negligence and the contractors who were at
fault could not have foreseen the consequences. Nuisance was also ruled out thus
the court was caltted upon to decide the case on a new set of rules.
When the case was finally decided by House of lords, they added a new rule of
liability for the non natural use of the land. The above rule is sometimes referred to
as the wild beast theory and the rule is applicable to anything likely to do mischief
is it escapes when the thing is animate or inanimate.
Escape necessary
To make the occupier liable the thing that he keeps on his land should escape
and do mischief. As such escape of the thing is an essential ingredient. Merely
keeping mischievous thing on land does not create any liability. In the case of Read
V. Lyons & Co. Ltd. the plaintiff who was employed as an inspector of amunitions by
the Ministry of Supply was injured by an explosion of a shell while inspecting the
defendant’s amunitions factory. It was found the manufacture of such shells are
dangerous and the defendants were held not liable. The rule Rylands Vs. Fletcher
was also in applicable as there was no ‘escape’ of the thing from that place.
Non Natural use of land
The other essential condition is the non-natural use of lands. Before Rylands
Vs. Fletcher if the escape of water is in a natural course the occupier was not held
liable, but if it was due to accumulation of water, then the occupier was held liable.
This was changed by the rule in Rylands V. Fletcher by which prerequisite to liability
is that the defendant had brought on to his land something “Which was not naturally
there”. Non natural user was held as a new dangerous substance ‘artificially
introduced into the land’. In the case of Riehards Vs. Lothian non natural user was
defined as follows: “It must be some special use bringing with the increased danger
to others and must not merely be the ordinary use of the land or use as is proper for
the general benefit of the community”. The court also held that the question of
dangerous thing and non-natural user of and may vary according to the
circumstances.
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While deciding the case of Mason V. Levy Auto parts of England Ltd. the court
had to decide whether the rule in Rylands Vs. Fletcher could be applied. In this case
the defendant had stored on their land large stores of combustible material which
were ignited under unknown circumstances. The court stated that it had to take
into consideration whether (1) the quantities of combustible materials which the
defendants brought on to the land (2) the way in which they stored them and (4) the
character of neighbourhood.
Water installation in a house, fire in a domestic grate, gas pipes in houses,
electric wiring in a dwelling place are considered as natural user. But storing of
water as in the case of Rylands Vs. Fletcher industrial water under pressure strong
of bulk gas and electricity are considered as non-natural user of land.
Things naturally on the land
The rules of strict liability applies only in respect of things the occupier on his
land and will not apply to things that are naturally found on land such as water
birds and so on. In the case of Pontardame R.D.C. V.s Moore, Gwyn, it was held that
the defendant was not liable for damage caused by the fall of rocks from a weathering
outcrop As such damage caused by trees growing naturally on land does not give
rise to strict liability. However if the defendant plants a poisonous tree on his land.
It is non natural user and any damage caused by it has to be answered by defendant.
In the case of Growhurst Vs. mersham Burial Board. The defendants had grown few
trees on their land. The tree was poisonous and some branches were projecting on
the plaintiff’s land. The plaintiff horse ate a few leaves and died and the defendant’s
were held liable.
In the case of Giles Vs. Walkser, large quantities of this cattleseeds were blown
from the defendant’s land on to the plaintiff’s land. The defendants were not held
liable as it was held that there is no duty between neighbours to cut thistles which
are the natural growth of the soil. Though natural things on land may be held to
cause nuisance. They cannot give rise to strict liability. However if the occupier
deliberately causes the escape of things naturally on his land he will be held liable.
Dangerous Things
It has been held that there is no such thing as essentially dangerous or not
usually dangerous. Almost anything is potentially dangerous. We should therefore
depend on the ruling in Rylands Vs. Fletcher where the phrase used was “likely to do
mischief”. The phrase was subsequently interpreted as things which are likely to
escape and in doing so to bring increased danger to others.
Indian Courts
The rule of strict liability is applied in India. In the case reported in AIR 1950.
All 519 it was held as follows: Although a person is not responsible for allowing
escape of things which are naturally on his land he is responsible for causing their
escape. He is not entitled to relieve his causing their escape. He is not entitled to
relieve his own land of a burden by casting it upon the land of his neighbour. Thus
he is responsible for the escape of water from his land if escape is due to some
embankment made by him.
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AIR 1966 M.B. 209
The right of a person to dam up water or divert the course of naturally following
water or provide a particular channel for the flow of accumulated water is not an
unrestricted right. It is subject to the obligation of seeing that no injury was caused
to the property of another’. The defendant was held liable for damage done to the
plaintiff’s crop by diverting the natural flow of water from his land.
18.3 Defences
1. Consent of the plaintiff - 2. Common benefits
The general defence of volenti non fit injuria is a good defence in an action on
strict liability. When the plaintiff has consented for the accumulation of the dangerous
thing or where the accumulation is for the benefit of the defendant and the plaintiff,
the plaintiff cannot complain if the dangerous thing escapes and causes damage. In
the case of Bill Vs. Edwin it was held that if the plaintiff has expressly or impliedly
consents for the presence of the source of danger and there has been no negligence
on the part of the defendant he is not liable. In the case of Carstairs V. Taylor, the
building wherein the defendant was occupying the upper portion. Water stored in
the upper portion leaked and damaged the plaintiff’s goods. It was found that the
defendant was not negligent. Since the water was stored for the common benefit of
the plaintiff and the defendant, the defendant was held not liable for the damages.
3. Act of God
The general defence of act of God can be pleaded in an action based on strict
liability. The case of Nichols Vs. Marsland can be remembered and quoted in this
regard. In this case artificial embankments made by the defendant brole due to an
extraordinary rainfall and the court held the defendant not liable for the damages
caused to the plaintiff by the escaping water on the defence of act of God. The
students should also quote the case of Greenock Corporation Vs. Caledorian Ply where
the diversion of a natural stream was held as artificial and the defendant was held
liable.
AIR 1972 Bombay 93.
While considering whether the plea of act God can absolve the Government of
its liability the court held as follows: when the Government builds a reservoir for
facilitating the supply of water but fails to provide an over-flow channel to meet any
contingency the Government is liable for damage to the adjoining lands by overflow
of such reservoir due to unprecedented floods. The damage in such a case does not
result from the act of God.
4. Escape due to default of Plaintiff
A person cannot complain if the thing that caused the damage escaped due to
his own act or default. In the case of Pointing Vs. Noakes, the plaintiff’s horse going
to the boundary enclosing the defendant’s land, reached over such boundary and
ate some leaves of a poisonous plant growing therein. As a result it died. The court
absolved the defendant of any liability as the act of horse was its own intrusion and
further that there was no escape of the poisonous tree as the thing was rowing on
the defendant’s land and had not protruded outside the boundary.
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5. Independent act of third party
If anything escapes without any negligence on the part of the defendants solely
due to an independent act of a third party, then the defendant will not be liable for
any damage caused by the escape of the thing. In the case of Box V. Hobb, the
reservoir on the defendant’s land overflowed partly due to the act of the neighbour
who emptied the water in his reservoir above the defendant’s reservoir. The defendant
was held not liable. In the case of Richaras Vs. Lothian some mischievous person
had blocked drain pipe of the defendant which resulted in flooding of the plaintiff’s
premises. The defendant was held not liable.
However in such a situation the plaintiff can still succeed if he can show that
the act of the third party could have been reasonably anticipated by the defendant
or that consequence of such act could have been prevented by the defendant. In the
case of Utilities Ltd. Vs. London North Western Guarantee and Accidents Co. Ltd. the
plaintiff’s hotel was destroyed when natural gas accumulated in the hotel’s basement
ignited. The gas had found its way into the hotel’s basement when a gas pipe was
fractured at the time of construction of a storm sewer. The gas pipe belonged to the
gas works owned by the defendants, a public utility company. Though the damage
was the result of an independent act of a third party the defendants were held liable
as the risk involved being of a serious nature a higher standard of care was expected
of them. The word ‘third party’ or ‘stranger’ does not include servants, independent
contractors engaged by the defendants or lawful or authorised visitor for in respect
of the acts of these persons the master will be liable vicariously.
6. Statutory authority
The general defence of acts under statutory authority can be pleaded in action
on the doctrine of strict liability. In the case of Green Vs. Chelsea Waterworks Co.
The plaintiff’s premises was flooded with water when a water main maintained by
the defendants had burst without there being any negligence. The defendants pleaded
statutory authority as their work was under a statute. The court upheld the defence
and held them not liable.
18.4 Liability for Animals
A person can also be held liable in tort on the doctrine of strict liability for
damages caused by escaping animals.
May Vs. Burdett
The plaintiff was bitten by the monkey kept by the defendant on his property.
The defendant was held liable. The defendant pleaded that he cannot be liable for
there was no allegation or proof that he had not taken reasonable precautions against
mischief. The court negatived his contention and stated “the conclusion to be drawn
from an examination of all the authorities appears to be this that a person keeping
a mischievous animal with knowledge of its propensities is bound to keep it secure
at his peril; and that if it does mischief negligence is presumed without express
averment........ the negligence is in keeping such an animal after notice.
Thus the liability for damage caused by animals depends on the knowledge of
the defendant regarding the mischievous nature of the animal. This is known as the
‘scienter rule’. Negligence in such cases need not be proved and absence of negligence
will not affect the liability.
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Animals are divided in to two types according to their nature. 1. Animals fear
nature which includes savage and fierce animals like lions, tigers, bears, elephants,
gorillas, etc., which are normally dangerous to mankind though they might have
been tamed. In such cases where such savage animals escape from their keeper,
such keeper will be liable for damages caused without there being any need to prove
their savagery 2. Animals nature, which are animals like dogs, cows, hoses which
are not naturally dangerous to making. It was once stated about them as follows:
“conclusively presumed to be harmless until they manifest a savage. Mischievous or
vicious propensity: proof of such a manifestation is proof of the so enter and serves
to transfer the animals, so to speak, out of its natural class into the class fear
nature”. If the keeper of such animals knows that they are mischievous or vicious
then he keeps them a his peril.
In the case of Begrens Vs. Bertram Mills Circus Ltd. the defendants were owners
of a circus. A trained elephant was frightened by the barking of a small dog. The
elephant while chasing the dog knocked down a booth in which the plaintiff was
sitting. The plaintiff was injured while her husband who was also inside the booth
suffered a nervous shock though she was not injured. The court held that elephants
are animals which are naturally dangerous and held the defendants liable.
In respect of fixing liability for damage caused by animals which belong to the
class considered generally as harmless two points will have to be proved. The first is
that the concerned animal had a vicious nature, though the class to which it belonged
was considered as harmless. Secondly it should be proved that the defendant had
knowledge of this vicious nature of that animal.
As stated above it must be proved that the defendants knew that particular
animal has a vicious nature. To do this the plaintiff can show that on previous
occasions the concerned dog had shown viciousness or acted in a vicious nature.
Cox Vs. Burbridge
The defendant’s horse which was grazing near a road got into the road and
injured a child. It was held that the defendants owner of the horse was not liable as
there was no proof of its viciousness.
Buckle Vs. Holmes
The defendant’s cat got into the plaintiff’s land and killed 13 pigeons owned by
the plaintiff. The court held that the cat had followed its natural instincts and the
owner was held not liable.
Monton Vs. Brockle Bank
While the plaintiff’s horse and the defendant’s mare were grazing, the mark
kicked and injured the plaintiff’s horse. The defendant was held not liable.
In England in 1971 the Animals Act was passed. Section 6 (2) defines a dangerous
species as “as species (a) which is not commonly domesticated in the British Islands:
and (b) whose fully grown animals normally have such characteristics that they are
likely. Unless restrained, to cause sevear damage or that any damage they may
cause is likely to be severe”. All other animals are those that do not belong to the
dangerous species. There is only a change in definition but the liability is based on
the old principle. Section 2 (2) on the Act provides for the keeper’s liability if it is
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proved that the animal had certain abnormal characteristics and that this was known
to the keeper or is presumed to have been known to such keeper. The Act also
provides that the defendant can pleaded that the damage was wholly due to the
fault of the plaintiff or that the plaintiff voluntarily risked the injury or damage.
Contributory negligence to the extent as previously discussed in the chapter on
negligence can be pleaded.
In India there is no statute similar to the Animals Act of 1971. The Courts in
India called upon to judge such cases according to natural justice, equity and good
conscience. There is no fixed rule.
Cattle trespass
The Animals Act of 1971 in England provides in Section 4 (1) for the following.
When live stock belonging to any person strays on to the land in the ownership
or occupation of another: and
a. Damage is done by the livestock to the land or to any portion of it which is
in the ownership of possession of the other person, or.
b. any expenses are reasonably incurred by that other person in keeping the
livestock which cannot be restored to the person to whom it belongs, or
while it is detained in pursuance of Section 7 of this Act or in ascertaining
to whom it belongs.
The person to whom the livestock belongs is liable for the damage or expenses,
except as otherwise provided by this Act”
By this, strict liability for cattle Trespass Act, 1871 provides for establishment
of pounds by the state. Cattle, trespassing can be captured and taken to the pound.
The owner can redcem such cattle from the pound only by paying the pound fees
and other expenses incidental to the keeping of the cattle. However the owner of
such trespassing cattle was not bound to pay any compensation under the above
Act to the person suffering the damage. Section 9 of the Act, saves the right of the
persons whose crops or other produce of the land have been damaged by the
trespassing cattle to use for damages against the owner of such cattle.
18.5 Defences
1. Contributory Negligence:- That the plaintiff irritated the animal thereby
inviting trouble upon himself.
2. That the plaintiff was a trespasser on the defendant’s land and therefore
the defendant owed no duty to him.
3. Volenti non fit injuria:- That the plaintiff voluntarily under-took the risk
fully knowing that the animal is dangerous. Consenting to ride a vicious
horse or undertaking to time a wild animal are examples.
4. Act of God:- That the escape of the animal was purely due to a sudden and
natural element over which the defendant had no control.
5. Act of third Party:- That the escape of the animal was solely due to an
independent act of a third party. That a stranger let lose the animal or
irritated it that it turned vicious.
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18.6 General Liability in tort for Animals
Animals may also cause certain damages which are incidental or natural.
Nuisance a tort that may be committed by an animal, maintaining a cow shed or
horse stable may become injurious to health. A person setting a vicious dog on
others may be committing battery by such act. Letting loose vicious bulls or horses
in a crowe will be considered as negligence or battery according to the damage they
cause.
Liability for Dangerous Chattels.
Before the case of Donohue Vs. Stevenson there was no liability for dangerous
chattel’s except under contracts and in respect of cattles that are considered generally
as dangerous or considered as dangerous for some special reason known to the
defendant.
In the case of Dominion Natural Gas Co. V. collins & Perkins a natural gas supply
system was done by the defendants on the premises of the plaintiff’s employer.
Instead of providing for the safety valve to discharge excess gas into the open air,
the valve was provided inside the premises as a result of which an explosion occurred.
While holding the defendants liable the court observed as follows:- “There being no
relation of contract between the (defendants) and the plaintiffs, the plaintiffs cannot
appeal to any defect in the machine supplied by the defendant which might constitute
breach of contract. There may be however, in the case of any one performing an
operation, or setting up and installing a machine, a relationship of duty. What that
duty is will vary according to the subject matter of the thing involved. It has however,
again been held that in the case of articles dangerous in themselves, such as loaded
firearms, poisons, explosives and other things ejusdem generis there is a peculiar
duty to take precaution imposed upon those who send forth or instal such articles
when it is necessarily the case that other parties will come within the proximity”.
The classification of dangerous chattels was very unsatisfactory and invited
criticism. Lord Dunedin once observed that there is an element of danger in every
chattel. Scrutton L J once stated that he did not understand the difference “between
a thing dangerous in itself as poison, and a thing not dangerous as a class but by
negligent construction dangerous as a particular thing. The latter, if anything seems
to me the more dangerous of the two it is a wolf in sheep’s clothing instead of an
obvious wolf. Even after the rule as laid down in Donoglue Vs. Stevenson some cases
have been decided in the defendant’s favour as the chattle causing the damage was
considered as not dangerous. Thus a thing which is considered as harmless can be
dangerous when used negligently or intentionally. The doctrine of dangerous chattels
are not recognized now and any chattel may be considered dangerous in the given
set of circumstances. In the case of Beckett Vs. Newalls Insulation Co. Ltd. there was
an explosion from a portable gas cylinder and the court held that “there really is no
category of dangerous things: they are only something which require more and some
which require less care”.
There are chattles which are inherently dangerous and chattles that become
dangerous by the way in which they are used. Loaded guns explosives, acids,
chemicals poison are those that are dangerous in themselves. There is no liability
for damage caused by a chattle unless there is negligence and damage by any chattle
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can give rise to a liability in tort. The only thing is that from chattle to chattle the
standard of care is different according to their properties or according to the risk
involved. Thus I can throw up a wooden ball up and down which I cannot do with a
dynamite or a grenade, Thus according to the chattel the degree of care is also
enhanced or reduced as the case may be. The duty that is caused on the person
handling the chattel thus depends upon the nature of the chattel involved.
Willaims V. Eady
The defendant, a school master had kept a phosphorus bottle in his room where
cricket materials were also kept. A student carried off the bottle of phosphorous into
the playground where it exploded causing injury to another boy. The defendant was
held liable.
18.7 Incidence of Liability
1) Liability of Immediate transferee
If by a contract a chattel was transferred to the plaintiff by the defendant and
the plaintiff suffers an injury he can claim damages from the defendant on some
term of the contract, express or implied. When a customer purchase some the goods
containing harmful ingredients he can sue the seller if any injury is caused to him.
Please refer to the case of Godley Vs. Perry. In the case of Philco Radio Corporation
Ltd. Vs. J. Spurling Ltd. it was held negligence when the defendants mistakenly
delivered to the plaintiff some film scrap without warning them of its inflammable
nature. In the case of Clarke Vs. Ary & Navy Co-operative society the defendants
were held liable for a failure to warn on the ground that they actually knew of the
danger, but the evidence really established only that they ought to have known of it.
However where the transfer is gratuitous according to the old theory the
transferror will be liable only for reckless or wilful conduct unless the chattle belongs
to a class of dangerous chattles. This would mean that the defendant will not be
liable if he did not actually know of the defect or danger in the chattle which caused
the damage to the plaintiff. This was however, reduced to a great extent by the rule
in Donoguhe Vs. Stevensen which however did not completely abolish the above
theory.
Hyman V. Nye
The defendant hired out of the plaintiff a carriage and a horse for particular
journey. During the journey a bolt in the carriage broke and the plaintiff was injured.
As the carriage was not reasonably fit for the journey, the defendant was held liable.
However it is between the parties to agree to exclude liability in case of accidents
in the agreement itself. In the case of Ward V. Hobbes pigs were sold to the plaintiff
‘with all their faults” and some of them were found suffering from typhoid fever. As
the plaintiff mixed them with the pigs he already owned, they also got infected. The
court held that the defendant was not liable as the contract provided for exclusion
of liability for defects.
2) Liability of Ultimate Transferee
Before the case of Doneghue V. Stevension it was doubted whether a transferror
of a chattel will be liable to the ultimate transferee except in cases where the chattels
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belonged to a class considered as dangerous or in cases where the defendant knew
the dangerous nature of that chattle.
The rule laid down in Donoghue vs. Stevension established that besides contracts
and others special rules as to dangerous chattles, there may arise circumstances in
which a transferror may owe a duty to the ultimate transferee. The fact and other
points have been discussed in the chapter on negligence. The court in that case
held as follows; “A manufacturer of products, which he sells in such a form as to
show that he intends them to reach the ultimate consumer in the form in which
they left him with no reasonable possibility of intermediate examination and with
the knowledge that the absence of reasonable care in the preparation or putting up
of the products will result in an injury to the consumer’s life or property, owes a
duty to consumer to take that reasonable care”.
The doctrine of care as formulated by the above case has been extended to
builders, suppliers, repairers and assemblers. In the case of Brown V. Cotteri an
infant was injured by the fall of a tombstone negligently rejected by the defendants
on a grave next to the one on which the child was helping to arrange some flowers.
The defendants were held liable under the rule in Doneghye V. Stevenson.
Grant V. Australian Kintting Mills Ltd.
The plaintiffs who had purchased some ready-made pants manufactured by
the defendants contracted some skin disease as the cloth contained a chemical. The
court held the defendants were liable.
Evens Vs. Triplex Safety Co.. Ltd.
The plaintiff brought a motor car which was fitted with a “Triplex Toughened
Safety Glass” windscreen which the defendants had manufactured. A year later
while the windscreen was being washed it broke into a number of pieces without
any apparent reason and the occupants of the car were injured. The defendants
were held not liable for the following reasons: (1) the lapse of time between the
purchase and the accident; (2) the possibility that the glass may have been strained
where screwed into its frame; (3) the opportunity of intermediate examination by
the intermediate seller and (4) the breaking of the glass may have been caused by
something other than a defect in manufacture.
Thus in such cases the crucial question is whether the damage caused was a
result of defect in the article or in the manufacture of the same. If the defect had
occurred due to the fault of the plaintiff, no claim can be sustained. The other
condition is that there should not have been any possibility of intermediate
examination. Thus in the case of Donghue Vs. Stevenson there was no possibility of
any intermediate examination.
The defendant may escape liability for any defect if he had given sufficient
notice to the users to use the article only after examination.
Kuback V. Hollands
A chemical was sold by the defendant manufacturer to a chemist with a warning
that the chemical should be tested before sale. The retailer sold the chemical without
testing it. For the resultant injury the retailer was held liable, but the manufacturer
was not held liable.
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Taylor V. Rover Co. Ltd.
The defect in the chattel which had been negligently manufactured, was known
to the employer’s of the plaintiff. The employer’s had done nothing about it and had
also not informed the plaintiff. It was held that the defendant manufacturer will not
be liable as there was a break in the chain of causation between the manufacture
and the use.
Fraud
The defendant will be liable to the ultimate user if he had fraudulently
represented the article to be safe and misleads the consumer and the intermediary
retailer.
Langridee V. Levy
A person selling a defective gun had falsely and knowingly warranted the same
to be in good condition. The purchaser’s son was injured when the gun burst on
firing. The defendant was held liable as the buyer had told the defendant that he
was purchasing the gun for his son’s use.
18.8 Liability for dangerous structures or Premises.
The liability for dangerous structures forms only a part of the tort of negligence.
The doctrine of negligence applies to liability for dangerous structures. The law
recognises the duty of care of an occupier towards person entering or using his
premises. An occupier is expected to take care that no injury is caused to any person
entering his premises. The duties are classified into four kinds depending upon the
degree of care expected.
1. The highest degree of care was owed by the occupier to a person entering
the premises in pursuance of a contract.
2. A lesser degree of care is expected towards an invitee who entered the
premises on business interest of both himself and the occupier.
3. A still lesser degree of care is said to be due to a licence who had enter in
the premises for his own benefit or business.
4. The least degree is expected towards a trespasser.
The position of the occupier’s liability before the passing of the Occupier’s Liability
Act. 1957 was as follows:
1. Persons entering as of right
A bailiff, a bill collector, a process server are entitled to the safety of the premises
they enter and mere warning is not sufficient.
Whereas the above mentioned persons are entitled to enter into houses and
structures by law or by order of a court, an invitee is a person who enters upon a
premises at the invitation of the occupier. Lord Summer in the case of Mercy docks
and Harbour Board v. Proctor and Lord Simond in the case of Jacob v. L.G.C. had
stated that the leading distinction between an invitee and a licencee that, in the
case of the former, invitor and invitee have a common interest, while the licensior
and licensee have none. A guest in the house is only a license while a person who
enters a shop is an invitee whether he purchases any goods or not.
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When an occupier gives an express invitation to any person to enter, he is
bound to warn the invitee of the danger that is known to the occupier. Thus a duty
is cast upen the occupier, to reveal the defects or risk that is known to him. He will
also be liable to any damage caused to an invitee by a defect or danger he was not
aware of but which he with reasonable diligence could have discovered. The duty of
an occupier as above extends to invite who had entered under an implied invitation.
Indermann v. Dames
The Plaintiff was a gas fitter employed by X to go out and fix leakes and repair
defective connections. X and the defendant has entered into a contract by which X
had fixed a patent gas-regulator in the defendant’s suger-reginery. The plaintiff was
asked by to test some burners where the gas-regulator has been fixed. While the
plaintiff was doing the tests, without any negligence on his part he fell through an
unfenced shaft and sustained injuries. The defendants were held liable.
However if the invitee knew of the risk or danger and still entered the premises
then there is no liability cast on the occupier since in such case there is no duty for
the occupier to win the invitee about the danger.
Weigall v. Westminster
The plaintiff was invited into a small room by her doctor, who wanted to discuss
with her about her son’s illness. The floor had been so highly polished that she slid
and fell on the mat on the floor and was injured. The court held that she can recover
damages as she was an invitee to the hospital.
Cates v. Mongini
A lady having tea in a restaurant was injured when the fan under which she
was sitting broke and fell. It was proved that the fall was due to latent defect in the
metal of the suspending road. Though she was an invitee, the court held that the
defendants were not liable as the defect was something that could not have been
discovered even if the defendant had exercised reasonable care.
Licence
As said earlier licensee is one who enters the premises at the express or implied
authority of the occupier, for the licensee’s own purpose or business or benefit. For
example a guest is a licensee. A licensee is bound to keep within the authority he
has been afforded by the occupier. He cannot beyond such authority.
The occupier must warn a licensee of any concealed danger or (trap) of which
the occupier knows. The licensee cannot complain about the condition of the structure
as he enters for his own purposes. An invitee can recover damages for injury caused
by a danger that the invitor ought to have known while a licensee can recover only
for injury caused by a danger that was known to the licensor.
The occupier should not change the character or condition of the structure by
either placing some dangerous obstruction on itor by any other manner affecting
the condition of the property resulting in the danger being increased without any
warning.
Fairman v. Perpetual Investment Building Society
The defendants let out their flats to servants. The cement staircase in the flats
complex were under the control and management of the defendants. The staircase
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got worn out. A tenant’s sister-in-law who was staying with him and her sister were
getting down the stairs when the tenant’s sister in law’s show heels got caught in a
depression as a result of which she sustained injuries. The court held that the
defendants were not liable as the defect (depression) was visible and could have
been seen if she had properly looked. The court also held that the defendants owed
only a duty to warn the plaintiff about concealed danger or trap.
Cooke v. Midland western Rly. Co.
A child of four years was injured while playing with a turn table left unlocked on
the defendant’s premises . Though trespassers are prohibited the children used to
go on the premises through a small gap in the hedge and the defendant’s knew
about the same and kept quiet about it. The defendants were held liable as the
court held that they owed a duty not only to warn about the danger but also a duty
to prevent others getting injured.
Passerby
A person lawfully passing by a structure is called a passerby. The occupier
owes a duty to a passerby to see that he does not get injured while passing the
premises by the premises or by something attached to it or emanating from it. A
municipality (in England) had put some spikes around a tree planted by them on
the road side to prevent persons from damaging the tree. The spikes were visible in
light. But at the time of blackouts the spikes were not visible the plaintiff who was
once walking on the road at the time of a blackout dashed against the spikes and
was injured. The court held that the municipality was liable as it was bound to
remove the danger of the spikes at the time of blackouts.
18.9 Occupier’s Liability Act. 1957
In 1957, the Occupier’s Liability Act was enacted by which the rules and
precedents set by various decided cases regarding the duty and liability for dangerous
structures were replaced. The principal purpose of the Act was to set of a rule of
“Common duty of care” by replacing the various rules of such duty under the common
law. An “occupier” as per the Act is one who has a sufficient degree of control over
the premises so as to cast a duty on his to take care towards those who enter up the
premises lawfully. Thus possession and control of premises is made as the criteria
to determine as to who is the occupier. In the case of Wheat & Locon & Co. Ltd. It was
observed as follows: “The foundation of occupier’s liability is occupational control
i.e. control associated with and arising from presence in and use of or activity in the
premises”.
For all practical purposes the Act has abolished the distinction between licencee
and invitees. It is stated in the act that the common duty of care is owed by the
occupier to all his “visitors”. Visitors as per the provision of the Act are those persons
who would be treated under common law, as invites and licensees. The Act provides
that its rules “shall have effect in place of the rules of the common Law, to regulate
the duty which an occupier of premises owes to his visitors in respect of dangers
due to the state of the premises or things done or omitted to be done to them”. The
rules regarding the duty of an occupier is provided under Section 4 of the Act.
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The rules under common law provided varying degree of care according to the
persons entering the premises. The duty of care as provided under the Act as a
“Common duty of care”. The Act has retained the rules under common law
determination as to who is an occupier.
As the Act had abolished the distinction between an invitee and a licensee, the
courts will have to differentiate between a visitor and a trespasser. When an invitation
has been given by the occupier there is no difficulty in determining the same. But
absence of invitation or permission does not automatically make an entrant a
trespasser. There might have been an implied permission or the entry may be under
an authority of the law. The court may infer an implied licence where premises is
used by all persons and the occupier who knows of the same had not done anything
to prevent such user. In the case of Lowery V. Walker, was proved that for 35 years
the public had been using a short cut across a farmer’s failed to reach the railway
station. Though he had interfered with such user often, he had not taken any legal
steps to prevent it as many of the users were his customers for milk. The court held
that they were licensees and the plaintiff who was injured by the farmer’s savage
horse, which the former had turned loose in the filed without warning, could recover
damage from the farmer. In the case of Great Central Ry. v. Bates, the policeman
who was injured when he entered the open warehouse of the defendant to investigate
whether everything was alright was held as not entitled to damages as he was neither
an invitee nor licensee.
In the case of Edwards, v. Railway Executive, the plaintiff a nine year old boy in
order to fetch a ball had climbed on an embankment which divided the play grounds
from the railway. He was injured by a passing train. In court it was proved that for a
lot of years children had climbed through the fence by breaking the wire barrier and
used to slide down the embankment. The defendants had repaired the fence whenever
the damage was observed. The court therefore held that the defendants cannot be
held liable and the act of the children cannot make them licensees.
The duty owed to a visitor does not extend to anyone who is injured by going
where he is expressly or impliedly warned by the occupier not to go. In the case of
Anderson v. Coutts it was held that a man who falls over a cliff by getting one the
wrong side of rulings erected by the defendant who had also put up a notice of the
danger cannot recover damages.
Liability to Trespassers
The Occupier’s Liability Act 1975 had provided for the occupier’s liability towards
a trespasser thereby recognising the position under the common law.
Any person entering a premises without lawful authority or without permission
from the occupier is a trespasser. He is a person “who goes on the land without
invitation of any sort or whose presence is either unknown to the proprietor, or, if
known is practically objected to”.
At the beginning of this branch of tort an occupier was held liable if the injury
to a trespasser was out of a intentional or reckless act the occupier, but an occupier
was not held liable if the injury to the trespasser was caused by only a negligent act
of the occupier. The above proposition was felt harsh on the trespassers as evidenced
by relaxation of the said rule by later decisions.
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Old Rule - Leading cause
Robert Addie & Sons (Collieries) Ltd. v. Dumbreck.
A small boy aged 4 years was killed by being crushed in the terminal wheel of a
baulage system belonging to the defendants. Though the defendants had warned
the children who used to play on the grounds where the wheel was working, the
children did not heed to the warning. At the time when the accident occurred, the
operators of the wheel were at such a distance from the well that it was not visible to
them. The House of Lords held that the child being a trespasser, the defendants
were not liable for his death. The court stated “Towards the trespasser the occupier
has no duty to take reasonable care for his protection or even to protect him from
concealed danger. The trespasser comes on to the premises at his own risk. An
occupier is in such a case liable only where the injury is due to some wilful act
involving something more than the absence of reasonable care. There must be some
act done with the deliberate intention of doing harm to the trespasser, or atleast
some act done with reckless disregard of the presence of the trespasser”.
By the decision in British Railway Board v. Herrington in 1972 the rule in Addie’s
case was completely changed. The defendants were the occupier of an electrified
railway line which ran alongside a meadow. Children usually played in the meadwo.
A path ran through the meadow ending at a fence that was guarding the railway
line. The fence was old and broken and people used to go through the fence across
the lines as a short cut. In April 1965, the local station master who was responsible
for the fencing was notified that children had been seen on the lines. The station
master took no action. In June 1965 a small boy of six years was seriously injured
when he came on the line had touched a line. In an action for damages the defendants
pleaded that the child was a trespasser quoting Addie’s case that they owed no duty
to the child.
The court negatived the defence and held the defendants liable on a finding
that the occupier should owe a duty of care to trespassers to avoid “wanton and
reckless disregard for the plaintiff’s safety”. The court said “He (station-master) could
not have cared whether or not children were electrocuted, although no doubt he
hoped they would not be. He was content to take that risk rather than put himself to
the trouble of taking any of the elementary precautions which he could and should
have taken”.
The result of the decision in Herrington’s case that an occupier will be held
liable to a trespasser if his act was considered as not simply negligent, but as grossly
careless of the safety of the trespasser as can be considered as recklessness.
Liability to Children
Children by nature are mischievous. The law draws no distinction between a
trespasser who is a child and an adult trespasser. However the law does take into
account the fact that children do not always behave as an adult in the same set of
circumstances. The law recognizes that children are usually less careless than adults
and their nature is such that they have a tendency to handly or play with things
which an adult would avoid as dangerous risky.
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Glasgow Corporation Vs. Taylor
A child of seven years died as a result of eating some poisonous berries of a
shrub which grew in the gardens under the control of the defendants. The berries
looked like carries and were very tempting to children. Thus they were considered
as an “allurement” to the child. Though the defendants were aware of the poisonous
nature of the berries they had not fenced the shrub nor had put up any warning.
The court held the defendants liable on the reasoning that even if the child’s
permission to be on the land does not extent to picking up the barriers so long as
they were an allurement to the child, and not being guarded itself would constitute
a breach of the occupiers duty.
Holdman V. Hamlyn
A boy of ten was injured on a threshing machine. The defendants contended
the boy was a trespasser. The court stated as follows: “Truth, is however, that he
was an invitee, at any rate down to the moment when the threshing machine proved
an irresistible temptation. If the boy strayed beyond the strict limit imposed by the
terms of the invitation, it was because of the failure of the defendant’s agent to
guard him against a dangerous allurement, and it he can properly be called a
trespasser at all, the trespass was a natural and probable result of the negligence of
the defendant’s agent. A defendant who had lured an invitee into a forbidden area
cannot thereafter treat him as a trespasser”.
18.10 Law in India
There is no parallel enactment in India to the Occupier’s Liability Act of England.
The courts in India are free to administer this branch of law as prevailing in England.
Section 57 of the India Eastments Act reads as follows: The grantor of a licence
is bound to disclose, to the licensee, any defect in the property affected by the
licence. Likely to be dangerous to the person or property of the licensee, of which
grantor is and licencee is not aware.
Section 58 of the above said Act reads as follows: They grantor of a licensee is
bound not to do anything likely to render the property affected by the license
dangerous to the person or property of the licensee.
Thus the licensor is bound to disclose the latent defects, traps or bidden danger
of the premises towards which the licencee is granted and which is known to the
licensor and not known to the license.
Lakshmichaud Khetsey Pune v. Ratan Bai
The defendant landlord was held liable for death of a tenant of a fourth floor
portion of premises by the fall of a defective wall of the portion, as the defect was
known to the landlord and the control for repair was also with the landlord.
AIR 1964 S.C. 205
The owner of a premises had fixed a live electric wire of high voltage across the
passage leading to his latrine to dissuade trespassers. There was no warning that
the wire was a live one. It was held that if a trespasser gets shock and receives
injury, owners is guilty of a tort and the person injured is entitled to recover damages.
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Dayashankar V. B.B.&C.I.R.
The plaintiff driving car, found the gates of level crossing open and tried to
cross the railway lines. A railway engine collided with the car and brock it. The court
held that the gates when open is an invitation to every person to cross the line the
therefore the railway company will be liable.
Liability of Professionals
Doctors:- A doctor does not undertake to cure the patient but only to employ a
fair, reasonable and competent degree of skill in order to cure the patient. If he does
not employ such skill he can be held liable.
Bankers:- A banker is expected to detect forgeries and to take care not to honour
forged cheques. In India a banker is liable to payment on forged cheques not exactly
as a tort, but on the principle that a forged cheque does not give him the authority
to pay or in other words it will not among to the customer’s authority to the banker
ab initio.
Innkeepers and Hoteliers
These persons do not owe their guests a duty for their personal safety, but only
to their goods. If the guest’s friend or servant steals the goods, then the innkeeper
cannot be held liable.
Solicitor or lawyers
As a lawyer is considered possessing great knowledge and skill, the law expects
such professionals to exercise a higher degree of care in handling the cases entrusted
to them. For example a lawyer can be made liable if he allows his client’s claim to get
barred by limitation.
Directors of Companies
When a person is offering himself to the post of Directorship of a company he is
presumed to hold out that he is capable of directing the complicated affairs of the
company. He is therefore expected to exercise a higher degree of care in the conduct
of the company.
Carrier of passengers
Whether the carriage of passengers is by air,. land or water, the carrier is bound
to take care that the vessel of carriage is worthy of travel of carriage. If the carrier
had provided an unworthy carriage he will be liable to the passengers injured due to
any accident resulting from the defect in the carriage.
Carrier of goods
When a common carrier is entrusted with goods for carriage he takes a role
that is equivalent to that of a bailee. For all damages to the goods he is answerable.
However he is not liable for damage caused by act of God or by any inherent defects
found in the goods.
Manufacturer
A Manufacturer has a duty to the consumers not to manufacture goods with
defects that may cause damage or injury to the users.
18.11 Suggested Question
1. Explain and illustrate the exceptions tothe rulein Rylands Vs. Fletcher.
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LESSON - 19

CONSPIRACY

19.1 Introduction
19.2 Interference with Freedom of Contract and Business Relationship
19.3 Essentials
19.4 Intimidation
19.5 Injurious Falsehood
19.6 Slander of Title
19.7 Essentials
19.8 Abuse of Legal Procedure
19.9 Malicious Prosecution
19.10 Maintanence and Champerty
19.11 Suggested Questions
19.1 Introduction
Conspiracy as a crime was recognized in England and conspirators who had
not participated in the crime were also held guilty on par with those conspirators
who had actually committed the crime. When first the crime of conspiracy was
recognized it was to prevent or crush associations formed by persons to subvert law
or legal process. Thereafter the tort of conspiracy was recognized during the latter
half of the nineteenth century. A tort of conspiracy is committed when two or more
persons join to injure a third party by unlawful means and damage results. The
doing of the unlawful means act itself will give the plaintiff a right for recovery of
damages. The tort of conspiracy can also be committed even though no illegal means
are used and no unlawful ends result. If there is a combination of persons to do
damages to the plaintiff, that purpose itself renders a lawful act as unlawful. The
commonest form of tort of conspiracy is committed by interfering with contractual
or business relationship of the plaintiff with other persons. ‘A conspiracy consists in
the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful
means”. The essentials are (1) there should be an association of persons; (2) with a
common intention of causing damage to the plaintiff (3) by an unlawful act of by an
unlawful method of doing a lawful act and (4) from such conspiracy the plaintiff
suffers damages.
In every conspiracy a motive is always found. One of the common motives found
in almost all cases of conspiracy is trade rivalry. One of the earliest reported case on
the tort of conspiracy was the Moghul case in 1891.
Moghul SS. Co. Ltd. v. Mc Gregor Gow & Co.
The defendants were a group companies doing shipping business. To monopolise
the tea trade between England and China they reduced the freight for carrying tea
by sea will below the rate which was being charged by the plaintiff. The defendants
also relazed the terms of carriage and threatened the agents of the plaintiff with
boycott, if the agents did not stop acting for the plaintiff. Thus they drove the plaintiff
out of the tea trade. When the plaintiff sued the defendants for conspiracy the court
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held that the combination between the defendants was for the lawful purpose of
protecting their interest and dismissed the action.
Allen v. Flood
A company by name Glangall Iron Company had employed Flood and Taylor on
a day to day basis. The company had also been employ in workers belonging to a
trade union. When Flood and Taylor were engaged, the defendant Allen threatened
the company that the members of the trade union will strike work unless Flood and
Taylor were discharged. In view of this threat, the company had lawfully dismissed
the two workers. When Flood sued Allen for damages the House of Lords held that
Allen is not liable as he had committed no unlawful act, he had not entered into any
conspiracy and he had not induced or procured breach of any contract. The court
further held that the allegation of a malicious motive will not help the plaintiff to
sustain the action.
Quin v. Leathem: (1901)
One Munce used to regularly purchase meat worth £ 70 every week from Leathem
a butcher. Five trade union officials asked the plaintiff to dismiss some workers
engaged by him, as these workers did not belong to their trade union. The plaintiff
refused to do so. The defendants thereafter induced Munce to stop his trade with
Leathem by threatening that the union will withdraw workers employed by Munce
who were members of the union. In view of threat Munce stopped buying meat from
the plaintiff. In an action against the defendants, the plaintiff was awarded damages
as the court held that the defendants had maliciously conspired to induce Munce to
sevear his trade with the plaintiff, thus causing damage to the plaintiff.
In the above case there was no enmity between the defendants and the plaintiff
and no personal vindictiveness. The action of the defendants was in furtherance of
a legitimate and lawful object of trade unions as in the Moghul case. By the decision
in the above case the trade union activities were curtailed and to remove this
hindrance the Trade Disputes Act. 1906 was passed to nullify the effect of the
judgement in the above case. The aforesaid Act provides that an action will lie for
conspiracy only if the action by the conspirators would be a tort if done by one
person alone.
To accommodate the changing society and in view of modern industrialisation
a new look was given to the of conspiracy in 1942 when the House Lords decided the
case of crofter Hand Woven Farris Tweed Co. Ltd. V. Veitch by a new concept. The
facts are as follows: The Islands of Lewis is found north-west of Scotland. On this
Island. Harris weed is produced by several mills. For a long time the mills were using
yarn hand spun by crofters of the Island for making the cloth. By 1930 the demand
for hand spun yarn was very much reduced as many of the mills were importing
yarn from the main land. Some mills still continued to use they an hand spun by the
Island crofters. Such mills found that the cloth made out of the imported yarn could
be sold for a lesser price than the cloth made out of the hand spun yarn. To combat
this they wanted a minimum price to be fixed for all cloth. Out of the workers employed
by these mills 90% were members of a trade union. In order to get better wages for
their workers the trade union demanded higher scale of wages for the workers
employed by these mills. These mill owners refused to give higher wages on the
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ground of stiff competition from the mill using imported yarn Veitch a trade union
official along with some other union officials induced the Lewis cockers (who were
members of their union) not to handle the imported yarn or to handle cloth made
out of the same when brought for export. As the Lewis dockers obeyed, the business
of the other mills (which were using imported yarn) was affected and they suffered
losses. The affected mill owners brought an action against the trade union officials
for conspiracy.
The House of Lords held the plaintiff had no cause to complain even if there
was a combination of the defendants and the mill owners, since the predominant
purpose of the embargo was to promote the interest of members of the union rather
that to injure the plaintiff.
When in a conspiracy no unlawful means is employed the courts will recognize
the same as a tort only if the object or purpose of the combination was to cause
damage to the plaintiff. In such cases malice ill-will or spite is not essential for
liability. What is required is that the combiners should have acted in order that the
plaintiff should suffer damages. If they had not acted in order to cause damage to
the plaintiff they will not be liable however malicious their motive may be.
If no damage is caused no cause of action will arise. The combination to injure
the trade of another is not actionable if no damage or injury was caused. As said
earlier there is a crime of conspiracy and tort of conspiracy. However both are different.
Section 120 A of the Indian Penal Code recognises a criminal conspiracy. While in a
tort for conspiracy the action can be sustained only if damage has resulted, in a
crime of conspiracy the very act of conspiring to commit a crime or an unlawful act
itself is punishable as a crime.
19.2 Interference with Freedom of Contract and Business Relationship
Any unlawful or intentional inducement to a person to commit a breach of or
breack a contract in order to cause damage to the other contracting party is a tort.
Lumlcy v. Gye (1853)
The plaintiff had engaged one Hohanna Wagner, a famous operatic singer. The
defendant by paying her higher amount induced her not to perform her contract
with the plaintiff. The court held the defendant liable and also stated that action of
such nature was not confined to contracts between master and servant but that it
applied also to those for rendering professional services.
Temperton v. Russel
The plaintiff had entered into a contract with certain builders and had thereby
agreed to supply them with building materials. In order to bring pressure on the
plaintiff, some trade union officials induced the builders to break their contract with
the plaintiff under threat of creating labour problems for the builders. The court
held that the defendants were liable.
In order to sustain an action for a tort of this nature it will suffice if the plaintiff
proves that there was an intentional interference or invasion of his contractual
rights. It is enough if he can show that his right to freely enter into contracts with
other persons are interfered with by the defendants. He need not prove that the
defendant had acted maliciously had ill-will towards him.
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19.3 Essentials
1. To sustain an action for such tort there must have occurred a break of
contract which was induced or procured by the defendant. The defendant
should have induced a person to break a contract which that person had
entered into with the plaintiff. Without there being a break of contract no
action will lie under this branch of tort. In this connection the case Alen v.
flood discussed earlier in this chapter may be recalled. In that case it was
held that no action can lie on a mere inducement of another not to enter
into a contract, though the motive may be malicious. In Allen V. Flood
there was no breaking of contract as Flood and Taylor were only employed
on a day to day basis. It was only an inducement for not entering into a
new contract.
2. Plaintiff must prove that he had suffered damages as a result of the breach
of contract which had been procured by the defendant.
3. To maintain an action for this type of tort it is essential that the defendant
should have had knowledge of the contract between the plaintiff and the
other contracting party. The nature and extent of such knowledge will
vary according to circumstance of each case. In the case of Emerald
Construction Co. Ltd. V. Lowthian the defendants knew the existence of the
contract between the plaintiff and their co-contractors but they did not
know the precise terms of the contract and they were under the impression
that the contract could be terminated by short. Notice. It was proved that
the defendants were nevertheless determine to break the contract. The
court of appeal therefore held that the plaintiffs were entitled to an
interlocutory injunctions.
4. Inducement which can be direct or indirect.
Direct Inducement may be an active persuasion or enticement on the contracting
party. The case of Lume Y v. Gye which has already been discussed is a typical
example for direct indictment. In the case of G.W.K. Ltd. v. Dunlop Rubber co. Ltd. B,
a manufacturer of cars had entered into an agreement with C who was a manufacturer
of car tyres. As per the agreement all cars exhibited by B should be fitted with the
tyres manufactured by C. At one exhibition were B’s care was exhibited with tyres
manufactured by C, A who was also a manufacturer of car tyres removed C’s tyres
from B’s car fitted his own tyres. A was held liable to C unlawful interference of his
contract, with B and also held liable to B for trespass to B goods.
Indirect Inducement is one when the defendant induces a third party to the
contract to do some unlawful act be which the servant or agent of one of the
contracting parties to commit some unlawful act by which the master is prevented
from completing the contract.
19.4 Intimidation
Intimation as a tort has now been well settle. A will commit a tort of intimidation
against C if he threatens B with conduct which is unlawful in relation to B and
thereby causes B to act (or refrain from acting) in a way which causes damage to C.
In the case of Garrel v. Taylor the plaintiff who was a lessee of a quarry alleged that
the defendant had disturbed his customers and his workman by threatening to
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mayhem and vex them with suits if they bought stones”. On these facts the court
held that the plaintiff had a good cause of action.
The leading case in Rookes v. Barnard (1961) The B.O.A.C. (B) had employed
the plaintiff (C) in their design office. The three defendants (A) were officials of the
A.E.S.D. Union and two of them were employees of B.O.A.C., C who was a member
of the union had resigned from his membership. The union wanted all employees in
the design office of B to be its members. It there notified B there a resolution has
been passed by A that unless C was dismissed “a withdrawal of labour of all A.E.S.D.
membership will take place”. B yielded to this threat and lawfully terminated C’s
employment. The House of Lords held that he can succeed on the ground of
intimidation. The court held that the tort extends to threats by A to break his contract
with B and is not confined to threats of criminal or tortious conduct.
Thus it need not be that the threat employed by the defendant should be an
unlawful act of a tortious act, but it will be a tort even if the threat was to break his
contract. The threat is on a third party in such a way that the third party does an act
which causes damage to the plaintiff. The threat to constitute a tort may be even a
threat by the defendant to break his contract with such third party.
AIR 1964 A.P. 382
Venkata Surya Rao V. Nandipati Muthaya
The Village Munsif threatened a farmer that he will distrain the farmer’s ear
rigns if the arrears of land revenue was not paid. He even went to the extent of
calling the gold smith. When the gold smith arrived the farmer paid the dues. In an
action the court held that the threat was not to do some thing which he was bound
to do under law and held that there was no intimidation.
19.5 Injurious Falsehood
1. Deceit
In 1789 in the case of Pasely v. Freeman it was laid down that A is liable in tort
to B if he knowingly or recklessly makes a false statement to B with intent that it
shall be acted upon by B, who does act upon it and thereby suffered damage. Thus
decit was recognized as a tort. In an action for except the plaintiff must prove that
(1) the defendant made a false, representation of facts (2) with full knowledge that it
is false, (3) that it was made with an intention that the plaintiff or a group of persons
go which the plaintiff was one would act upon it and thereby suffer damage, (4) that
the plaintiff acted upon it and (5) thus suffered damages.
False representation
A representation may be oral or written or it may be implied from conduct. An
omission to disclose is not deceit unless there is a duty to disclose in which case an
active concealment may amount to deceit. If the defendant deliberately act in a
manner calculated to deceive the plaintiff it will amount to false representation.
Knowledge:- If the representation was made with a honest belief that it is, true,
the defendant will not be liable if the representation, turns out to be false, It is now
well settled that even making false representations recklessly whether they are true
or will give rise to tortious liability if the other elements of tort are present.
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Intent
The defendant should have made the false representation with intent that the
plaintiff shall act upon it. If this is proved, it does not a matter that the representation
was not made to the plaintiff literally or particularly. In Lungridge Vs. Levy, the
defendant sold a defective gun to a person, Knowing that the gun is defective and
after the buyer had told him that the gun was meant for his son. When the son was
injured the defendant was held liable.
Plaintiff should have acted upon it.
Only if the plaintiff had acted upon the false representation there can be a tort
of decit.
Damages
The plaintiff should prove that he had suffered damages by acting upon the
statement. Damages may by financial and also injury to person or damage to property.
In the case of Hornal Vs. Newberger Products Ltd. the plaintiff was induced to
buy a lathe by the fraudulent representation that it was for immediate use. Although
it was worth in its actual condition what the plaintiff had paid for it, he put to seven
week’s delay in preparing it for use and was awarded damages for this delay. In the
case of Mc. Connel v. Wright it was held that the plaintiff in an action on decide
cannot normally recover in respect of prospective gains which he was expective.
19.6 Slander of Title
Tort of slander of title is common among trade rivals. It usually arises out of
interference with business and unlawful competition. When this type of tort first
being recognised it was only applied to slander of title of immovable and movable
properties and to corporeal and inroporeal ones and. One of the common types of
tortious slander is impugning the plaintiff’s title to goods. For example asserting
falsely that the defendants has a lien on goods which the plaintiff has bought from
X and which X consequently refuses to deliver to the plaintiff. In the famous case of
Ratcliffe v. Evans the words used by the defendants in his newspaper had implied
that the plaintiff had wound up his business and it was held as slander. In the case
of Barret v. Associated Newspapers Ltd. the court held that the false statement
published in the newspaper that the plaintiff’s house is haunted, was slander of
title”.
19.7 Essentials
False statement to the third party
The defendant should have made a false statement either oral or written
regarding the property immovable or movable owned by the plaintiff. Even conveying
a false representation by some deliberate act will suffice to raise tortious liability.
Malice
The defendant should have acted maliciously when making the false
representation. It may be in the form of a direct or indirect representation or with a
dishonest or improper motive Mere knowledge that representation is false or making
a false statement recklessly will also give rise to tortious liability if the other
ingredients for such tort are present. A bonafide assertion of title, though mistaken,
made to protect one’s own interest is not considered as malicious.
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A statement made assisting that one’s own goods are superior to that of another
will not give rise to tortious liability even if it turns out to be false or malicious or
causes damage to another.
Damages
The plaintiff must prove special damages. Where the false representation by its
very nature is something which shows malicious intention or is one which in usual
course will cause damage or loss then it will suffice if the plaintiff proves a general
loss of business.
Passing of
Passing of is the act of one trader representing his goods as those of another,
even if such act is innocent or with no intention to deceive. All that is necessary is
that the goods of the defendant are very similar to those of the plaintiff in their get-
up or description that there are probable chances of confusion between their goods.
The plaintiff need not prove that the consumers had taken the defendence goods to
be those of plaintiff, though such evidence is very good, in case the plaintiff has also
claimed damages besides injunction.
Common Instances
Using similar names making goods to have a similar get-up or appearance with
that of the plaintiff’s goods are some of the common forms of passing off.
White Hudson & Co. Ltd. V. Asian Organisation Ltd.
In Singapore, from 1933, the plaintiff was selling his medicated cough sweets
in red wrappers, with the word “Hacks”. From 1928 the defendants started selling
their couge drops in a similar red wrappers with the words “Pecto”. The plaintiff
proved that most of the users had not knowledge of English and used to ask for “red
paper cough sweets”. Before 1953 no-cough sweets were sold in red wrappers and
between 1953 and 1958 only the plaintiffs cough sweets were being sold in red
wrappers. The Privy Council had no hesitation in issuing injunction order against
the defendants from selling their cough sweets in red wrappers. There may be
instances when the descriptive words of the goods themselves may distinctively
attach itself to the goods of the plaintiff. In the case of Reddway V. Benham the
words ‘Camel hair belting was used by the plaintiff for belts made out of “Camel
Hair”. This product was so used that the court held that such words have come to
signify belting made by the plaintiff.
Trade Mark
A manufacturer of goods puts a particular mark to signify or identify the goods
to be his. It can be commonly seen that many goods are bought by consumers by
asking or looking at the trade marks. When the defendant uses trade marks similar
to that used by the plaintiff in such a way that his good may be taken to be those of
the plaintiff a tort is committed. A trade mark may be a name, brand label, ticket,
words, letters, numbers or combination of two or more of them. If the use of a trade
mark by the defendants is such that the consumer will mistake it for that of the
plaintiff by comparing with the mark used by the plaintiff, then a tort is committed.
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In the case of Reddaway v. benham just discussed, the court held that the words
“Camel hair belting” has come to signify the plaintiff’s product, though it is only
words descriptive of the produce.
In the case of Bollinger V. Costa Brava Wine Co. the plaintiffs used the words
‘Champagne’ for a wine made at Champagne district. When the defendants used the
word ‘Spanish Chatt pagne for their wine the court granted injunction on the
defendant from using the said mark.
Trade Name
A person is free to use his own name he had acquired by reputation even if
such user causes damages to someone who has the same name.
However there are restrictions to such free user. In the case of Parker-knoll Ltd.
v. Knoll International Ltd. the parties to the action were manufactures of furniture.
The plaintiffs were a company well established and well known in the United kingdom
while the defendants and American company had just started business in England.
Thoguh the defendants were using their own name on their furniture, the House of
Lords granted an injunction restraining the defendants from using the name without
differentiating their furniture from those of the plaintiffs. The plaintiff’s had proved
that their name had come to denote only goods made by them and not those of
anyone else.
There can be no action for passing of where (a) there is an interference with
another person’s trade and (b) there is no intent to injure or deceive. The doctrine is
called ‘damnum absque injury’. In the case of Day v. Browning. X’s house had been
called as “Ashford Lodge” for sixty years. His neighbour Y’s house has been
called”Ashford Villa” for forty years Y changed the name of his house as “Ashford
lodge” and X sued Y for injunction as his change caused annonyance and
inconvenience to X. The court dismissed the action as the defendant could not
prove malice for an intent on the part of Y to injure X, there was no slander of title.
The court further held that there is no law recognising the alleged right of a person
to extensive use of name he had affixed to his property.
Patent right
When a person invents anything he had a right to have patent rights in respect
of such invention. He can register his invention and no such registration all other
persons are precluded from making or using such invention without the consent of
the patent holder. The Patent and Designs Act in India and in England provide for
registration and protection of patents. The patent holder will have the exclusive
right to make and use his invention for a limited period of 14 years.
Copyright
As an invention is protected so also books, letters scripts, documents, lectures,
musical notes and works of art are given protection from copying by the Copyright
Act. The creater alone will have an exclusive right to have copies made or enjoyed.
However the Act gives protection only in respect of those works that are not opposed
to public policy.
Every person suffering damage or injury by tort of passing on can sue for
injunction restraining the wrong doer from continuing the tort and if damages or
loss has been suffered persons can also sue for compensation from the defendants.
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19.8 Abuse of Legal Procedure
Legal proceedings improperly instituted, amounting to abuse of legal procedure,
in order to harass any person is a tort. This tort developed on two doctrines opposed
to each other namely freedom of action to every man to bring criminals to justice
and prevention of laying accusation on innocent persons. The tort is based on the
principle that innocent persons should not be allowed to be harassed by making
them go through a legal procedure or prosecution which may leave a stigma on such
persons, even though ultimately the will succeed. Only to prevent such unjust injury
developed.
An abuse of legal procedure may cause injury to a person’s reputation or to his
safety or cause his damage to property. A person can claim damages for injury to his
reputation if the charges themselves are defamatory. In a reported case it was held
that a charge that the plaintiff wrongly pulled a communication cord in a train was
not defamatory of him.
Now that most of the criminal cases are initiated by the police the cases for
abuse of legal procedure are muchless. In spite of this there have been number of
such cases in India which goes to show that the abuse of legal procedure is very
prevalent in our country.
Abuse of legal proceedings can be in any one of the following forms.
1. Malicious criminal prosecution
2. Malicious process.
a) Malicious arrest.
b) Malicious house-search.
3. Malicious civil proceedings-Malicious attachment of property.
19.9 Malicious Prosecution
To bring an action for malicious prosecution the plaintiff after proving damage
as above mentioned should show that (1) that the defendant prosecuted him (b) that
prosecution ended in the plaintiff’s favour, (c) that the prosecution was malicious.
Damages
As said earlier the plaintiff has to prove damage. The leading case is Savile v.
Roberts wherein damage for the purpose of the tort of malicious prosecution has
been differentiated into three kinds any one of the which will give rise to a cause of
action. One is damage to fame or affecting his reputation, the second is safety of the
plaintiff’s person and the third is security of his property by reason of his expense in
repelling an unjust charge. Courts have held that there is a damage when the plaintiff
is falsely charged of having travelled on a train without buying a ticket and that
there is no damage if the charge is that he erroneously pulled the communication
cord or the train.
Prosecution of plaintiff by defendant
A prosecutor is “a man actively instrumental in putting the law in force”. The
defendants need not have been the prosecutor himself. If he had signed the charge
and had consented with the police to attend court and give evidence it is enough to
hold him liable for the tort on malicious prosecution. A person is said commence a
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prosecution if he had done something positive in setting the law in motion. For
example of the defendant had appeared before a Magistrate and had asserted that
the plaintiff had committed some, crime there by procuring a warrant of arrest is
commencement of prosecution.
In India any criminal proceedings initiated before a magistrate is prosecution.
Even proceedings initiated by calling upon the accused to give security for his good
behaviour is a prosecution for maintaining an action for tort.
In AIR 1963 All 580 it was held that a person who lodges a false report with the
police is the real prosecutor. In the case reported in AIR 1973 Rajasthan 82 it was
held that under certain conditions a first informant can be held as the prosecutor in
a tort for malicious prosecution. In a Punjab High Court decision reported in AIR
1973 Punjab 400 it was held that “where defendant conceals material facts or distorts
them to an unreasonable extent, he cannot be allowed to urge that he was not the
prosecutor. In a reported decision 1975 WLN the court held as follows: “To bring
particular proceedings under the purview of the expression “Prosecution” it is
necessary that the law should be set in motion by making a complaint before an
authority exercising judicial powers. It is true that the disciplinary authority that
conducts an enquiry or passes the final order against a Government servant
discharges its function in a quasi judicial manner but it cannot be called a judicial
authority.
AIR 1947 P.C. 108 Mahamed Amin v. Jogendra Kumar Bannerjee
The plaintiff was charged of cheating by the defendant before a magistrate. An
enquiry was made under Section 202 Cr.P.C. (old Act) by the magistrate after
examining the defendant on oath. The complaint was dismissed after the magistrate
issued notice to the plaintiff who appeared through counsel and proved that there
was no complaint. The plaintiff had to incur expenditure in defending the action and
he sued the defendant.
The Privey Council holding that the defendant had prosecuted the plaintiff stated
as follows “The test is not whether the criminal proceedings have reached a stage at
which they may be described as a prosecution that test is whether such proceedings
have reached a stage at which damage to the plaintiff results”. The plaintiff was
awarded compensation.
The Mysore High Court in the case of Balandanda Pammayya V. Avaradova
held that a prosecution commences only when the person charged is made to appear
before a magistrate. In this case the defendant made a complaint to the police that
the plaintiff had stolen fish-traps and caradamon. The police sub-inspector made a
search of the plaintiffs house after conducting an enquiry of the defendant and the
plaintiff. He rejected the defendant’s complaint as false. When the plaintiff sued the
defendant for malicious prosecution the court dismissed the action on the ground
that no criminal prosecution can be said to have been commenced by mere filing of
a complaint with the police unless some judicial authority has been set in motion as
a result of such complaint.
The Rajastan High court in the case of AIR 1973 Raj 82 held that a first informant
will be liable for malicious prosecution if he knew that the complaint lodged by him
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with the police is false: the complaint is of such nature that the police would naturally
act upon; he procured false witnesses and influenced the police in sending up the
innocent plaintiff for trial before a magistrate.
The Privy Coucil in deciding another case Gavaprasad v. Bhagat Singh observed
as follows If, therefore, a complainant does not go beyond giving what he believes to
be correct information to the police, and the police without further interference on
his part, think fit to prosecute, it would be improper to make him responsible in
damages for the failure of the prosecution. But if the charge is false to the knowledge
of the complainant, if he misleads the police by bringing suborned witnesses to
support, if he influences the police to assist him in sending an innocent man for trial
before the magistrate it would be equally improper to allow him to escape liability
because the prosecution has not, technically, been conducted by him”.
Prosecution must have ended in the plaintiff’s favour
To maintain an action for tort of malicious prosecution the plaintiff must show
that the prosecution ended in his favour. While the prosecution is pending he will
have no cause of action. However proof that the prosecution ended in his favour
does not automatically made the defendant liable. The Nagpur High court once
observed that “an order of acquittal in a criminal case does not by itself establish
innocence. It merely establishes that the case against the accused is not proved,
but merely failure to prove the accusation in a criminal case cannot be equated with
establishing the innocence of the accused.
Malice
Malice in the context of a tort or of a any from does not denote spite or hatred.
Anger is not always malicious. The word malice would rather be taken as an improper
or vindictive motive.
The Kerala High Court has stated malice to mean the presence of some improper
and worngful motive. The Nagpur High Court took a negative look and observed that
malice exists unless the predominant wish of the accuser is to vindicate the law.
The Patna High Court had held that malice does not necessarily, cannot personal
spite or ill-will but only means an indirect or improper motive rather that a desire to
vindicate the law. The Jammu and Kashmir High Court has held that malice has
been said to mean any wrong or indirect motive but a prosecution is not malicious
merely because it is inspired by anger.
ILR (1957) 1 Allahabad 501
One J made a report to the police that some articles were stolen from his house
while he was away and that his suspicion was against one M and his companions.
The report was followed up by house search. But nothing was found M was a 10
year old boy and the grounds for J’s suspicion against M was that M’s family more
ill-will to him and they were close neighbours.
The court held that the circumstances evidently showed that J had reasonable
grounds for the suspicions which he expressed in the report lodged by him. If J had
made a definite statement that the theft had been committed by M it could very well
be said that he should have proved his bonafides for making that positive assertion;
but when he expressed only a suspicion and there where were good grounds for that
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suspicion it could not be said that J was actuated by malice in making that statement.
The defendant was held not liable.
Absence of reasonable and probable cause
In the case of Hicks v. Fculkner Howkins J has stated a reasonable and probable
cause as follows: It is “an honest belief in the quit of the accused upon a full conviction
founded upon reasonable ground, of the existence of a state of circumstances, which,
assuming that to b true, would reasonably had any ordinarily prudent and cautious
man placed in the position of the accuser, to the conclusion that the person charged
was probably guilty of the crime imputed”.
Lord Devlin in the case of Glinski v. Mclver stated that reasonable and probable
cause, means that there must be cause (that is, sufficient grounds...) for thinking
that the plaintiff was probably guilty of the crime imputed”.
Abrath V. N.E. Ry Co.
A passenger recovered damages from the Railway Company alleging that he
had sustained injuries in a Railway accident. The Railway later found that a fraud
has been played on them by Dr.Abrath who had created artificial symptoms on the
passenger. The Railway Company after obtaining legal opinion prosecuted Dr.Abrath
for conspiracy to defraud. Abrath was, however, acquitted.
When Dr.Abrath sued the Railway Company for malicious prosecution the court
held the Railway Company not liable as it had taken reasonable care to inform itself
of the true facts and that it honestly believed in the allegations of fraud against the
plaintiff. The action was dismissed.
Malicious arrest
A person cannot bring an action for arrest of himself under a valid judgement,
though it may be erroneous and ultimately set aside. Where a false charge or
complaint is made thereby inducing the judge to order arrest of the plaintiff, then
the plaintiff can sue the accuser for malicious arrest provided the other ingredients
for such a tort are proved.
AIR 1965 Madras 438
The Plaintiff sued a police officer for damage in an action for a tort of trespass
on his person on the allegation that such trespass was malicious and mala fide. The
police officer had kept the plaintiff, while he was an undertrial prisoner and
undergoing treatment in an hospital, handcuffed to the window like a ferocious
animal. In the criminal trial the plaintiff was acquitted. The defendant police officer
in the suit: pleaded that he had acted as per the rules and as per the instructions of
his superior officer.
The court held the defendant liable holding that the act was malicious and
mala fide as the officer had exceeded and abused his authority, unless he can show
that circumstances justified the use of such power. The court found that the act of
the police officer cannot be justified by any liberal interpretation under the provisions
of the Madras Police Standing Orders.
The Rajastan High Court in a case reported in AIR 1961 Raj. 64 held that in an
action for damage for wrongful preventive detention, the court (lower) is not right in
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disallowing a claim by the plaintiff for loss of reputation. The court based its decision
on the fact that ordinarily people presume that preventive detention is ordered only
in connection with illegal activities and the reputation of a person who is so detained
does suffer.
Malicious civil proceedings
When a person maliciously institutes civil proceedings like insolvency
proceedings against a person or winding up proceedings against a company, without
probable and reasonable cause he can be held liable to the affected person to
compensate for the damage caused. It may affect a person’s name or cause loss in
business or trade. Such proceedings may cause injury to his credit resulting in loss
of business. Though the malicious proceedings are of a civil nature an action for tort
will lie.
AIR 1966 Allahabad 172
In the above reported case it was held as follows. A distinction can be drawn
between the acts one without judicial sanction and acts done under judicial sanction
which is improperly obtained. Where defendants by obtaining an order of injunction
from a court on false and baselss allegations cause injury to the plaintiff’s property
the injury is the direct and proximate result of and defendants action in obtaining
the order of injunction on wholly improper and unjustifiable grounds. The case falls
within the second of the above categories and makes the defendants liable in an
action for damages.
19.10 Maintenance and Champerty
Maintenance in the context of a tort means, the improper stirring up of litigation
by giving aid to one party to institute or defend a claim without just cause or excuse.
Thus every person who instigates or supports litigation of another person without
any excuse or without any reasonable ground or excuse will be liable in tort. In
England maintenance was also a crime. Champerty is a type of maintenance when
the person maintaining the litigation is to be rewarded out of its proceeds. The
Criminal Law Act 1967, in England has abolished maintenance and champerty as
crimes and as tort.
In India the tort of maintenance and champerty are still recognised, though will
certain restrictions. For instances an agreement for transfer of the property involved
in litigation can be enforced. While maintainance is usually done out of sprite for
the opposing party, champerty is motivated out of profit taking or as a speculation
or as a gamble. Champerty depends upon the successful outcome of the litigation.
In the case of maintainance malice is essential. A person charged with the tort of
maintainance can either plead that he has a common interest within the subject
matter of the litigation such as a master’s in the servant and vice versa or that the
maintenance was motivate by a noble cause like helping the poor or fighting against
suppression by the rich. That is to say that there is no malice towards the other
party and there is no profit taking.
19.12 Suggested Question
1. Explain and illustrate the tort of conspiracy.
2. Write a note on
i) Malicitus Arrest
ii) Maintenable and Champering
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LESSON - 20

FOREIGN TORT

20.1 Introduction
20.2 Tort Committed in Ship and Aircrafts
20.3 Breach of Confidence
20.4 Abuse of Quasi Judicial
20.5 Discharge of Torts
20.6 Suggested Questions
20.1 Introduction
The branch of foreign tort is concerned with tort committed in a foreign country.
It deals with the tort committed outside the territorial jurisdiction of a state in which
the action based on such tort is initiated. In such situations the courts of that state
is called upon to decide on such tort whether a tort to a person or a tort to a property
situated abroad and in which a foreign element is involved.
The territorial jurisdiction of a state not only extends to the land within its
borders, but also to the airs space above it to a certain extent and to a limited extent
of the sea from its shares. The sovereignty over the limited extent of land and the
sea bed are called as territorial waters and maritime belt respectively. Under various
circumstances tort committed outside such borders can be brought in courts within
that state.
The essential element to maintain an action in England on a tort committed
outside the state the defendant should be within that state.
The other rules are as follows:
An act which is a tort according to the law of the foreign state in which the act
was committed is not actionable in England if according to the English law such act
will not amount to a tort.
Case of the Halley
According to the rules as applicable to entry into Belgian waters the ships so
entering should be compulsorily navigated by their pilot. A British ship, ‘The Halley’
while being navigated by a Belgian pilot in Belgian waters, collided with a Norwegian
barge due to the negligence of the compulsory pilot. As per the Belgian law even in
such cases the liability was that of the shipowner and according to the English Law,
a ship-owner is not liable for negligence of a compulsory pilot. The owners of the
barge sued the owners of ‘The Halley’ in England. The court dismissed the action on
the technical rule that an act which is not unlawful shall not become unlawful
merely because it was wrongful elsewhere. Further the court reasoned that it cannot
allow the action to be maintained as uniformity in administration of justice within a
state should be maintained.
2. In a similar way an act which is a tort according to an England law, but
which is not a tort according to law of the foreign state in which it is committed, is
not actionable in England.
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Philips v. Eyre
While the rebellion in Jamaica was being put down the plaintiff was assaulted
and imprisoned by Eyre, the Governor of Jamaica. The Parliament of Jamaica
thereafter passed an Act conferring-immunity for all acts done during the rebellion
from civil action in Jamaica. When the plaintiff brought an action in England, the
court refused to entertain the same on the ground that the act was not illegal in
Jamaica.
3. When an acts is a tort as per the laws of the state in which it was committed
and is also tortious as per the English laws then it is actionable in England.
The above rule was laid down by Wills. J. in the leading case of Philips v. Eyre as
follows: “As a general rule....... First, the wrong must be.....actionable if committed
in England.....Secondly, the act must not have been justifiable by the law of the
place where it was done”.
Relying on the words ‘general rule’ the house of Lords decided the case of Chapilin
v. Boys by giving a twist to the rule laid down in Philips v. Eyre. In deciding the case
of Chaplin v. Boys the court used the word ‘actionable’ to the word ‘justifiable’ as
used in Eyre’s case.
Chaplin v. Boys
The plaintiff was injured in road accident in Malta by the negligence of the
defendant. Both were British service men temporarily posted in Malta. The plaintiff
sued the defendant in England. Under the Maltese law an injured person can claim
financial loss like loss of ages, expenses for injured etc., but he is not entitled for
damages for pain and suffering, loss of amenities etc., which are of personal nature.
The defendant took a stand that no damages can be awarded for paid and suffering
as it was not applicable under the Maltese laws. The House of Lords on appeal held
that the plaintiff was entitled to recover damages for pain and suffering.
The court reasoned that though the rule in Eyre’s case had the expression ‘not
justifiable’ matters relating to substantial law should be taken from the laws of the
place of occurrence, while matters relative to procedure should be as per the laws
applicable at the place where the action is brought. It was further held that above
revised rule was applicable in this case as both parties were British subjects
temporarily serving Malta.
4. Where the act complained of was in respect of a land or immovable property
in a foreign state, no action will lie in England, even though such act may be a tort
according to the law of that state and those of England.
Mozambique case or British South Africa Co’s case
An action in tort for trespass to the mines of the plaintiff in South Africa, was
dismissed by the House of Lords.
5. However an equity court will entertain such an action for tort if the
defendant was in England and is subject to some personal obligation arising out of
contract, fiduciary relation or grand.
Penn v. Baltimore
Penn owned certain properties in Pennsylvania and Baltimore owned certain
properties in Maryland. By an agreement they settled some dispute between them
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in respect of the lands. The court held that Baltimore can be sued in England for the
specific performance of the agreement as a personal remedy is available against him
in England.
20.2 Tort committed on ship and aircrafts
To determine whether an act committed on board of a ship on the high seas, is
tortious or not the law of the country whose flag on the ship is flying will have to be
applied. The same rule applies to those acts committed aboard in an aircraft.
However where an act is committed at one place which results in a different
injury in another country, the law to be applied will have to be decided according to
the circumstances of each case. In the case of Koep v. Bepp an injury was inflicted in
New South Wales which resulted in death of that person in Victoria. The High Court
of Australia held that New South Wales was to be considered as the place of
occurrence as it was only in New South Wales the first wrongful act was committed.
Miscellaneous and doubtful torts
Some types of wrongs have not yet been firmly recognised by courts. While
some wrongs have been recognized by the courts in America they have not been
recognized as torts by the courts in England. These are the doubtful torts.
Invasion of Privacy
The English courts have not yet recognized the tort of invasion of privacy. But
the courts in the United States of America have recognized a person’s right to privacy
and any invasion or interference with it is considered as a tort and is actionable.
The Courts in U.S.A. have recognized the change in society and the resultant
sentiments and also the change in the behaviour of a person towards his neighbours.
Due to these changes acts which have hitherto held as not tortious have started
being recognized as new torts as each person seems to be acquiring the corresponding
new rights due to the change in the social set up. Every person in a modern society
wants privacy and demands protection of his privacy from the praying eyes of his
neighbours. Thus the invasion of privacy have attracted recognition by courts in a
few countries and other countries are also considering the same issue. The right of
privacy not only applies to privacy of a person and his activities but also to his
property.
Wrongs to property may be trespass, nuisance infringement of easementary
rights breach of the copy-right, patent or trade marks and other infringements.
Infringement of trade marks, copy-rlight and patent are protected by special statues
like Trade and Merchandise marks Act. The Patent and Designs Act. These torts
have already been discussed in previous chapters.
In India the right of privacy has been recognized. This was considered in the
case of Gokul Prasad Vs. Radho by the Allahabad High Court in the case of a
community using purdha. In this case the defendant was restrained by an injunction
from constructing his house over-looking a place in his neighbour’s house known as
‘Zenana’. This place was private part of the house and is one which is not open to
any other person, Thus the right of privacy was recognised.
However in England such is not the case. A person cannot be prevented in
England from opening new window; over-looking his neighbour’s house. In the case
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of Kruse v. Jonson the court refused the interfere with the conduct of a neighbour of
the plaintiff doctor when the defendant neighbour had arranged certain mirrors on
his premises in such a way that all went on in the doctor’s consulting room was
reflected in the mirrors. The court refused to recognise to doctor’s claim or right of
privacy as no such right is recognised under the English laws.
As said earlier the modern man wants to be left to his deeds and activities. He
demands to be free from unlawful intrusion by others into his private affairs to avoid
emotional pressure or disturbance. Such things have not been recognised by the
English Courts.
One of the common type of invasion of privacy is the unauthorised publication
of one’s life history or affairs or activities using one’s name or likeness in any
publication or photographs for speculative advertisement. The case of Corelli v. Wall
may be quoted as an example. The plaintiff was shown by the defendant in his
publication of coloured picture-cards, by depicting bad portraits of her in imaginary
incidents of her life. As the defendant had not obtained the plaintiff’s permission
she sued the defendant and sought for an injunction against such publications. The
court refused to interfere as it held that there was no authority for the proposition
that “a private person was entitled to restrain the publication of a portriat of herself
which had been made without her authority and which although professing to be
her portrait, was totally unlike her. Though a false portrait may not among to invasion
of privacy it could be defamatory. In the case of Dunlop Rubber Co. Ltd. v. Dunlop. the
company in one of their advertisements published had shown portraits of Mr.Dunlor,
falsely representing him as a topish old gentleman. The court held that it was libel
and granted an injunction which was upheld by the house of Lords. In England the
right to privacy has not been recognised and neither has it been ruled out. The
courts can still recognise invasion of privacy as a tort. There has been moves to have
legislation on this which have not met with success.
In U.S.A. protection is granted when there is an invasion of privacy. In California
case, a woman who has leading a disputable life had given up her past life, was
married and had settled down. After even years a film was produced and exhibited
by the defendants portrait the true story of the plaintiff’s life. The defendant had not
obtained her permission and the story was got by them out of old courts records and
they also used the plaintiff’s name in the film. The court held that she can sue the
defendants for violation other right of privacy.
20.3 Breach of Confidence
The wrong of breach of confidence is another doubtful tort which is still to get
recognition from courts. A wrong of breach of confidence arises when any matter or
information passed to one a person who though under an obligation to guard it as
confidential reveals th same to others. For example an information between a client
and his lawyer pertaining to litigation involved between a doctor and his parent
regarding the patient’s illness are matters of confidential nature. A person may
bring an action for injunction restraining the other from revealing what was passed
on by him to the other person as confidential. But it is doubtful whether any court
will entertain an action for damages if and when such a tort is recognised. In England
the matter of recognising breach of confidence as a tort is still on testing grounds.
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20.4 Abuse of Quasi Judicial Powers
Quasi judicial powers are those exercised by Universities over its students, a
club over its members, by medical council over registered medical practitioners by a
bar council over registered advocates, by local authorities over the residents within
their respective jurisdictions, by departments over its officers and staff and such
like powers. The powers vested in such bodies or authorities are either given under
law or by any internal rules and regulations. When a person is a member of one
such bodies he is presumed to have voluntarily submitted to the rules and regulations
of such a body. As discussed in an earlier chapter, any quasi judicial power exercised
by such bodies are protected if exercised within the rules and regulations and
according to the natural justice.
When any such authority having powers of a quavsi judicial nature is in a
position which can prevent the plaintiff from exercising his means, of livelihood,
then the court may hold that such authority owns a duty to the plaintiff in the
employment of such powers. In the case of Nagle v. Feilden the court refused to
interfere with the decision of the stewards of the Jockey Club not to grant a license
to the plaintiff which was alleged because the plaintiff was a woman.
Lord Denning M.R. in a later case observed as follows: “When an association,
who have the governance of a trade, take it upon themselves to license person to
take part in it, then it is at least arguable that they are not at liberty to withdraw a
man’s license and thus put him out of business without hearing him. Nor can they
refuse a man license and thus prevent him from carrying on his business-in their
uncontrolled discretion. If they reject his abritrarily or capriciously, there is ground
for thinking that the courts can intervene”. In view of this observation there is every
chance that such acts may be recognized as torts in the near future.
20.5 Discharge of Torts
A right of action vest in a person immediately on a tort being committed on him
or in respect of his property. Such right once vested may be extinguished by any one
of the following reasons, other than by operation of law.
1. By death of one of the parties.
2. By judgement.
3. By limitation.
4. By Waiver.
5. By Accord and satisfaction
6. By release.
An extinguishment of liability acts as a discharge of the tort. While waiver,
accord and satisfaction and release are discharges by act of parties death, limitation
and judgement recovered are discharge of tort by operation of law.
1. Death of One of the parties
Extinguishment of liability for a tort, by death of either of the parties, has already
been discussed in an earlier lesson which may be referred to by the students.
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2. By Judgement recovered
Liability for a tort comes to an end once a final judgement is passed by any
tribunal or court of competent jurisdiction on an action brought in respect of that
relevant tort. If the action is dismissed the plaintiff cannot bring another action on
the same tort by a separate legal proceeding. When he succeeds his right in respect
of the tort in the judgement. The judgement is conclusive on the rights of the parties
and is binding on them. The right is never revived if the judgement remains
unsatisfied.
3. Limitation
The law of limitation prescribes periods within which an aggrieved party may
institute any proceeding. For various rights various limitation periods are fixed. The
Indian Limitation Act, 1963 has prescribed varying limitation periods for various
groups of rights.
The basis for prescribing a limitation period is based on the principle that the
defendant should not be burdened with stale claims which he may not be able to
met due to change in circumstances and further he should not be put to difficulty or
risk in proving his defence as due to time documents may have been lost, witnesses
might have died and his mind may not remember the act with clarity.
Under the above Act, a period of one year has been prescribed for instituting
actions based on torts of personal nature like false imprisonment, malicious
prosecution, libel, slander, seduction, procurement of breach of contract and illegal
distress. A three year period is given for action based on trespass to immovable
property, for conversion or detinue of movable property, for diverting or obstructing
water-courses, abuse of legal process by obtaining injunction orders against the
plaintiff, for compensation, for infringement of copyright or any other exclusive
privilege and for any other tort not prescribed under the limitation Act.
An executor, administrator, or representative of a deceased person must institute
an action under the Legal Representatives Suits Act, 1855 within a period of one
year and such persons have a limitation period of two year to institute an action
under the Indian Fatal Accidents Act 1855. Any action against an executor,
administrator or representative under Legal Representative’s Suits Act, 1855 should
be instituted within two years to avoid application of limitation. A period of six (6)
months has been prescribed as the limitation period by Motor Vehicles. Act for
instituting an action for compensation for any personal injury or death caused by a
motor vehicle. Any action under the Motor Vehicles Act should be instituted before
the claims tribunal having jurisdiction to entertains such a claim within 6 months
from the date of the accident.
4. Waiver of tort
When an injured party waives his remedy in tort in favour of Some. other remedy,
his right of action in tort is extinguished. Once he has sued for one remedy he
cannot change his mind and sue for the remedy which he was waived. The remedy
which he had chosen may be some other action in tort for example he may have
waived trespass for trover-An aggrieved party may elect to sue on the contract or
quasi contract instead of suing in tort.
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The Principle of waiver is not only based on avoidance of multiplicity of litigation
but also that a person should not be allowed to go back to a remedy he has already
abandoned.
It is settled that once a judgement is passed in favour of the plaintiff in respect
of one remedy it will certainly act as waiver of other remedies. But there is
controversial opinions and decisions whether such election will act as waiver if no
final judgement has been passed as yet or the judgement is against the plaintiff. It
is felt that in such circumstances election will not amount to waiver. However if B
instead of suing his agent A for conversion of goods has chosen to receive the price
of the goods from A. Then B is definitely precluded from bringing an action against
A for some other remedy. A mere demand for compensation for tort is no waiver of
an action for it. Commencement of an action with an alternative claims in tort is not
waiver and part payment of what is due is not waiver unless it is accepted in full
satisfaction. If one single act constitutes two different tort, then an action on one
tort will not amount to waiver of the other.
5. Accord and Satisfaction
When the injured person enters into an agreement with the wrong doer for
valuable consideration for the tort, then the liability will stand extinguished. The
agreement is called an “accord” and the consideration is called as “satisfaction”. As
satisfaction performed and accepted puts an end to the original right of action
consequently accord and satisfaction will be a complete defence in any proceeding
to enforce the right. However the right comes to an end only when the accord is fully
satisfied.
Accord is a contract and as such all provisions of law applicable to contracts
will apply to an accord in respect of a tort.
6. Release
Release of right by the person entitled for it extinguishes the liability. Release is
embodied in a document and consideration is not essential as in the case of accord
and satisfaction. As per Section 63 of the Indian Contract Act, absence of
consideration does not vitiate or nullify a release.
20.6 Suggested Question
1. What are various reason under which tort is discharged.
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LL.B (Academic) & LL.B (General)

First Year

LAW OF TORTS

May] [Time : 3 Hours

Maximum : 100 Marks

Answer any FIVE questions

All questions carry equal marks.

1. Define ‘Tort’, bringing out all the essential ingredients’ of a tort with illustrations.

2. ‘Infancy is no defence to an action of tort brought against the infant” - Discuss.

3. Discuss the maxim “Actio personalis moritur cum persona” and explain the various
statutory changes limiting its operation.

4. Describe the various defences available to the dependent in an action for

defmation.

5. Enumerate the defences available to the defendant in an action for trespass to

immovable properly.

6. Discuss the doctrine of ‘Res ipsa loquitur’ in the light of decided cases.

7. Explain and illustrate the tort of conspiracy.

8. Write short notes on any THREE of the following :

a) Discharge of torts.

b) Remotness of damage

c) Foreign sovereign

d) Act of god

e) Libel.
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1.9 Suggested Questions

1. Define ‘Tort’ bringing out all the essential ingredents’ of a tort lists illustration.

2. Tort is a Special branch of law which orginated in England. Discuss with special
reference to breach of contract and income.

2.11 Suggested Questions

1. Define ‘right’ point out the difference between private right and public right.

2. Write a note on following

1) Damnum sine Injuria
2) Injuria sine Damno
3) Mensrea
4) Malice

3.6 Suggested Questions

1. Discuss in detail the maximum “Voleritinon fit injuria” with the help of case
laws.

2. What are the various general defences available in tort.

4.5 Suggested Questions

1. What is meant by ‘Defence of Necessity’?

2. What is meant by “Private Defence’.

3. Write a note on
1) Act of God
2) Defence of Standing Authority.

5.6 Suggested Questions

1. ‘Every person is entitled to snc inrespect of an injury due to wrongful acts of

another person’ write the exception to the above rule.

2. Write a note of
1) Excessive Acts
2) Judicial Acts.

6.13 Suggested Questions

1. Discuss the tutions liability of a minor with its limitation.

2. Discuss the liability of insolvent person for his tortious act.

3. ‘Infancy is no defence to an action of tort brought against the infant’. - Discuss.

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7.5 Suggested Questions

1. What is meant by ‘vicarious liability’?

2. Who is a servant.

8.5 Suggested Questions

1. What is meant by “in the course of employment”.

2. Who is ‘independent contract’? Whether a person is liable for the torts committed
by an independent contractor employed by him.

9.9 Suggested Questions

1. Define ‘Rule Against Contribution’ and state the exception.

2. What are the remedies available for a persons affected by a wrong of another
person.

3. What are the different types of damaged available for infringement of Legal
right?

10.16 Suggested Questions

Comment on the following with the help of case laws,

1. Fraud without damages or damage without Fraud gives rise to no cause of

action.
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11.6 Suggested Question

1. Discuss the maxim “Active personalis moritour cum persona” and explain the
various statutory charges limbing its operation.
12.12 Suggested Question
1. Define ‘Battery’, what are the defences available against act of Battery.
2. Define ‘Assaults’ what are the differences available against all of Assault.
3. Write a note on the following
1) Mayhim
2) False imprisonment
13.6 Suggested Question
1. What is meant by Slander and what are its essentials.
2. What is mean by lible and what are its essentials.
3. Write a note on the following
a) privilage
14.8 Suggested Question
1. Emumerate the defences available to the defendant in the action for trespass
to immovable property.
15.4 Suggested Questions
1. Discuss the Doctrine of ‘Risipsa loquitter’ in the light of decided cases.
2. What is meant by tort of Negligence? what are its essentials.
16.4 Suggested Question
1. Discuss the Doctine of “Resipsa Loquiter’ inthe light of divided cases.
17.8 Suggested Question
1. Explain the illustrate the tort of misance point out the difference between public
nuisance and private nuisance.
2. Write a note on
1) Tresspass
18.11 Suggested Question
1. Explain and illustrate the exceptions tothe rulein Rylands Vs. Fletcher.
19.12 Suggested Question
1. Explain and illustrate the tort of conspiracy.
2. Write a note on
i) Malicitus Arrest
ii) Maintenable and Champering
20.6 Suggested Question
1. What are various reason under which tort is discharged.
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