Professional Documents
Culture Documents
'OR'
"A tort is a civil injury but all civil injuries are not Torts". Explain. Distinguish between Tort
and Crime. How many kinds of Torts are there?
The expression 'Torts' is of French origin. The word tort has been derived from the latin word
"tortum" which means 'twisted' or a 'crooked act'. In general, it means conduct that adversely
affects the legal right of others and is thus, "wrong". For a healthy society it is necessary that it
be free of anti-social elements and that an individual should have freedom to exercise his
rights without being restricted by others. Further, if there is a transgression of any right, there
must be a way to compensate or to restore the right. This is essentially what the maxim, "Ubi
just ibiremedium" implies. Where ever there is a right, there is a remedy. Indeed, a right has no
value if there is no way to enforce it. Such rights of individuals primarily originate from two
sourcees - contractual obligations and inherent rights that are available to all the citizens
against every other citizen, as rights in rem.
The expression 'wrong' is of two kinds, namely:(1) Public wrong;
(2) Private wrong.
All acts, which are identified to be punishable under the Indian Penal Code, 1860 are called
offences ( sec. 40,I.P.C.) or crimes or public wrongs and are tried in criminal courts. The rest
are called private wrongs and are tried in civil courts. Therefore, tort is a civil wrong and is
tried in civil court. Further, wrong takes place in two ways -viz. (a) commission of an act. eg.
Negligent operation/surgery by a doctor, causing the death of the patient; and (b) omission of
an act.eg. Omission or failure to give medicine by a nurse, causing the death of the patient.
The term 'Tort' literally means ''a wrongful act committed by a person, causing injury or
damage to another, thereby the injured institutes(files) an action in civil court for a remedy,
viz., unliquidated damages or injunction of property or other available relief. The expression
''unliquidated damages'' means ''the amount of damages to be fixed or determined by the
court''.
The person who commits tort is called ''tort-feasor'' or ''wrongdoer''. The other person
who suffered injury or damages is called injured or aggrieved.
DEFINITION:- There can be innumerable types of acts that can transgress the rights of others
and it is not possible to come up with a definition that can accommodate all the cases.
However, the following are some definitions from the experts are given below (1) According to Salmond :- '' A tort is a civil wrong for which the remedy is action in common
law for unliquidated damages and which is not exclusively a breach of contract or breach of
trust or other equitable obligation''.
(2) According to Winfield: - '' Tortious liability arises from the breach of duty primarily affixed
by law. The duty is towards persons in general and its breach is redressable by an action for
unliquidated damages''.
Historically, crime and tort originated from the same root. Later on, they separated on
the account that a crime does not only affect the victim but also to the society as a
whole to a great extent. Thus, the branch of law that deals with criminal conduct
evolved a lot faster than the branch of law that deals with torts.
The nature of tort can be understood by distinguishing it from crime and contractual civil
liabilities. It can be said that tort is the residual of wrongful acts that are not crime and that do
not fall under contractual liabilities. Thus, if a wrongful act is neither crime nor a violation of a
contract, it may fall under tort. The damages are unliquidated and are decided only by the
common sense of the courts. The following differences between Tort and Crime and Tort and
Breach of Contract, shows the true nature of Tort.
Distinction between Tort and Breach of Contract:-
Breach of Contract
breach of contract occurs due to a
dated.
Crime
(1)Tort occurs when the right available to all the persons in (1)Tort occurs when the right available to all
any contract.
person.
(3)Inention is usually irrelevant.
by the govt.
(6)The suit is for punishment.
example, a person who has been defamed, can compromise For example, if a person is guilty of murder, he
(8)Compounding is possible.
(8)Compounding is generally not possible.
(9)Justice is met by compensating the victim for his injury
(9)Justice is met by punishing the aggressor by
and exemplary damages may also be awarded to the victim.
prison or fine. In some specific cases as given
In Bhim Singh vs State of J K AIR 1986 - the plaintiff was
in IPC compensation may be given to the
awarded exemplary damages for violation of his rights
victim.
given by art 21.
Q. What are its various ingredients? What conditions must be satisfied before a liability in
Tort arises?
Ingredients of Tort: (General Conditions that must be satisfied before a liability in Tort
arises.)
There are three essential elements for an act to be liable under Tort:1) Wrongful act or omission;
2) Duty imposed by law;
3) Legal remedy.
1. Wrongful act or omission - There must be some act or omission of a duty on the part of the
defendant. For a tort to happen, the person must have first either done something that he was
not expected to do or omitted to do something that he was supposed to do.
Municipal Corp of Delhi vs Subhagvanti AIR 1966 - A clock tower was not in good repairs. It
fell and killed several people. MCD was held liable for its omission.
2. Duty imposed by law - The act or omission of an action must be required by law or the duty
must be imposed by law. This means that if an act that is prohibited by law causes harm, it is
liable under tort. Similarly, if the omission of an act that is required by law, causes harm, then
it is liable under tort. For example, law requires that the driver of a vehicle must drive
carefully and if driving without care, a pedestrian is hit, the omission of the act of driving
carefuly is liable under tort. However, if the worshipers stop going to a temple and thereby
cause the priest to lose money, this action is not liable under tort because going to temple is not
an act that is required by law. Such duties that are required by law are usually towards all the
people in general.
Donaghue vs Stevenson 1932- Held that the manufacturer of a drink has a legal duty towards
the consumers to ensure that noxious substances are not included in the drink.
3. Injury - The act or the omission must result in legal damage or injury i.e. violation of a legal
right vested in the plaintiff. This means that the act or omission must cause a damage that is
recognized by law as wrongful. For example, a person has a legal right to enjoy his property
and if someone throws trash in it, this is a violation of his legal right and is liable under tort.
However, it is possible that a legal right is violated without causing any physical or real
damage. This is explained in the maxim - Injuria Sine Damnum.
(very important) INJURIA SINE DAMNUM: - if the plaintiff suffers injury to his legal right,
he will have a cause of action to sue the defendant even though he has not suffered any loss or
damage.
The term 'injuria' means infringement or violation of a legal right.
The term 'sine' means without or in the absence of.
The term 'damnum' means damage physical, mental or otherwise.
Thus, the above phrase ' Injuria sine damno' means '' infringement of legal right without
damage''. In other words, plaintiff's legal right is affected, but he has not suffered any loss or
damage. In such a case, the suit is maintainable even though the plaintiff suffers no damage
Ashby vs White 1703 - The defendant wrongfully prevented the plaintiff from voting. Even
though there was no damage, the defendant was held liable.
Bhim Singh vs State of J K AIR 1986 - Plaintiff was an MLA and was wrongfully arrested
while going to assembly session. He was not produced before a magistrate within the requisite
period. It was held that this was the violation of his fundamental rights. Even though he was
release later, he was awarded 50,000RS as exemplary damages by SC.
On the other hand, it is possible that a person suffers a huge loss or damage but none of his
legal rights are violated. This is called Damnum sine Injuria. In such cases, there is no tortious
act.
DAMNUM SINE INJURIA:- in this case, the plaintiff suffers loss or damage without any
injury to his legel right. Hence, the plaintiff's suit is not actionable.
The term 'damnum' means damage physical, mental or otherwise.
The term 'sine' means without or in the absence of.
The term 'injuria' means infringement or violation of a legal right.
Thus,the above phrase 'Damnum sine injuria' means ''Damage without the infringement of
legal right''. An act that comes within the meaning of this maxim is not regarded as a 'tort' and
the suit is not maintainable.
Glaucester Grammar School's case 1410 - Defendant opened a rival grammar school in front
of an existing one thereby causing the fees of the existing one to be reduced from 40pence to
12 pence. He was not held liable as he did not violate any legal right of the plaintiff.
Ushaben vs BhagyaLaxmiChitraMandir AIR 1978- Plaintiff sought a permanent injunction
against the cinema house to restrain them from showing the movie Jai SantoshiMaa. It was
contended that the movie depicts the goddesses Laxmi, Saraswati, and Parvati in bad light,
which is offensive to the plaintiff. It was held that hurt to religious sentiments is not
recognized as a legal wrong. Since there was no violation of a legal right, an injunction was
not granted.
Chesmore vs Richards 1879 - Plaintiff had been drawing water from underground for past 60
yrs. The defendant sunk a bore well on his land and drew huge quantity of water which
diminished the water supply of the plaintiff. It was held that the defendant was not liable
because he was only exercising his right and did not violate any right of the plaintiff.
Harm due to negligence - A person is not liable in tort even if he causes harm due to
negligence but does not cause injury. In Dickson vs Reuter's Telegram Co 1877, the defendant
company delivered a telegram that was not meant for the plaintiff to the plaintiff. Based on the
telegram, the plaintiff supplied some order which was not accepted by the sender of the
telegram. Plaintiff suffered heavy losses and sued the defendant company. It was held that the
company owed a contractual duty only to the sender of the telegram and not to the receiver.
Hence they were not liable.
Harm due to malice - If a person has not caused an injury even if he does an act with malice,
he is not liable. In Bradford Corporation (mayor of) vs Pickles 1895, the defendants sunk a
shaft in their own land which caused the water to become discoloured and unsuitable for the
plaintiff. It was held that even if the defendant did it with malice, he had not violated any right
of the plaintiff and hence was not liable.
4. Legal Remedy - Historically, a person whose legal right was violated was allowed to sue
only upon a permission from the King. There were only certain predefined torts for which the
king's permission could be obtained. Thus, it was necessary to have legal remedy for that
particular violation before an action for damages could be started.
However, now, such a requirement is not there. It has been accepted that there can be many
kinds of torts and if a violation of a legal right has happened, the person is enttitled to sue.
Kinds of Torts
As mentioned before there can be innumerable type of acts that violate the legal right of
others. The law of tort is therefore ever evolving. New ways in which the rights are violated
come to light everyday. However, they can be classified on the basis of way of incurrment of
liability into the following three categories 1.Intentional - Wrongful acts that are done intentionally, irrespective of with or without
malice, belong to this category. For example, torts such as assault, battery, trespass to land,
false imprisonment are intentional torts.
2.Negligent Conduct - Wrongful acts that are done without any intention but because of
not taking proper care that is required by law fall into this category.
3.Strict Liability - Acts that are neither done intentionally nor do involve any negligence,
but still cause an injury to other are liable under the concept of strict liability as
propounded inRylands vs Fletcher. In strict liability cases, the defendant is liable even if it
acted reasonably. There are 3 types of strict liability cases:
1- keeping wild animals
2- dangerous, legal activities such as blasting roads
3- the manufacture of products (products liability)
Torts can also be classified according to the type of damage 4.Physical Torts - Causing physical hurt to body such as assault, battery. It can happen
with intention or even with negligence.
5.Abstract Torts - Causing damage to mind or reputation such as defamation.
6.Tort involving property - For example, Trespass to land.
7.Tort involving legal right - For example, false imprisonment.
8.Nuisance - Causing unreasonable restriction towards exercise of one's legal right.
Q. Describe general exceptions regarding Torts that are not actionable / General
Defences for Torts.
Or
(Sometime defences can be come in the short question form also)
Even when a plaintiff provides proof for the existence of all the essential elements of a
tort, it is possible in some cases for the defendant to take certain defences which can
remove his liability, These defences are nothing but specific situations or circumstances
in which a defendant is given a waiver for his tortious action. These are as follows 1. Volenti Non fit Injuria (important)
When a person consents for infliction of an harm upon himself, he has no remedy for
that in Tort. That means, if a person has consented to do something or has given
permission to another to do certain thing, and if he is injured because of that, he cannot
claim damages. For example, A purchases tickets for a Car race and while watching the
race, an collision of cars happens and the person is injured. Here, by agreeing to watch
the race, which is a risky sport, it is assumed that he voluntarily took on the risk of
being hurt in an accident. Thus, he cannot claim compensation for the injury.
Such consent may be implied or express. For example, a person practicing the sport of
Fencing with another, impliedly consents to the injury that might happen while playing.
In Woolridge vs Sumner 1963, the plaintiff a photographer was taking photographs at a
horse show, during which one horse rounded the bend too fast. As the horse galloped
furiously, the plaintiff was frightened and he fell in the course. He was seriously
injured. It was held that the defendants had taken proper care in closing the course and
the plaintiff, by being in the show, agreed to take the risk of such an accident. The
defendants were not held liable.
However, the action causing harm must not go beyond the limit of what has been
consented. For example, in a sport of fencing, a person consents to an injruy that
happens while playing by the rules. If he is injured due to an action that violates the
rules, he can claim compensation because he never consented to an injury while playing
without rules.
In LaxmiRajan vs Malar Hospital 1998, a woman consented for a surgery to remove a
lump from her breast. But the hospital removed her uterus as well without any genuine
reason. It was held that removing of her uterus exceed beyond what she had consented
for.
Also, the consent must be free. It must not be because of any compulsion. Thus, if a
servant was compelled by the master to do a certain task despite his protests, and if he is
injured while doing it, the master cannot take the defence of volenti non fit injuria
because the consent was not free.
Exceptions - In the following conditions, this defence cannot be taken even if the
plaintiff has consented 1. Rescue Conditions - When the plaintiff suffers injury while saving someone. For
example, A's horse is out of control and is galloping towards a busy street. B realizes
that if the horse reaches the street it will hurt many people and so he bravely goes
and control's the horse. He is injured in doing so and sue's A. Here A cannot take the
defence that B did that act upon his own consent. It is considered as a just action in
public interest and the society should reward it instead of preventing him from
getting compensation.
2. Unfair Contract Terms - Where the terms of a contract are unfair, the defendant
cannot take this defence. For example, even if a laundry, by contract, absolves itself
of all liability for damage to clothes, a person can claim compensation because the
contract is unfair to the consumers.
are not actionable. However, the force must be reasonable and not excessive. In Bird vs
Hollbrook 1892, the defendant used spring guns in his property without notice. It was
held that he used excessive force and so was liable for plaintiff's injury even though the
plaintiff was trespassing on his property.
6. Mistake
Generally, mistake is not a valid defence against an action of tort. Thus, hurting a
person under the mistaken belief that he is trespassing on your property, will not be
defensible. However, in certain cases, it could be a valid defence. For example, in the
case of malicious prosecution, it is necessary to prove that the defendant acted
maliciously and without a reasonable cause. If the prosecution was done only by
mistake, it is not actionable.
Further, honest belief in the truth of a statement is a defence against an action for deceit.
7. Necessity
If the act causing damage is done to prevent a greater harm, it is excusable. For
example, a Ship ran over a small boat hurting 2 people in order to prevent collision with
another ship which would have hurt hundreds of people is excusable. Thus, in Leigh vs.
Gladstone 1909, force feeding of a hunger striking prisoner to save her was held to be a
good defence to an action for battery.
8. Statutory Authority
An act that is approved by the legislature or is done upon the direction of the legislature
is excused from tortious liability even though in a normal circumstances, it would have
been a tort. When an act is done under the authority of an Act, it is a complete defence
and the injured party has no remedy except that is prescribed by the statute.
In Vaughan vs Taff Valde Rail Co 1860, sparks from an engine caused fire in appellant's
woods that existed in his land adjoining the railway track. It was held that since the
company was authorized to run the railway and since the company had taken proper
care in running the railway, it was not liable for the damages
Q. What are the torts relating to the absolute liability? What are its kinds? What is
Ryland vs Fletcher rul (strict liability)? What are its exceptions? Is this rule applied in
India in present circumstances? If not, why? (very important )
In certain situations, a person is held liable for the damages caused by his actions even
when the actions are done without any ill intention or negligence on account of equity
and justice. For example, if a person keeps a lion for a pet and despite of all the
precautions the lion escapes the cage and kills someone. In this case, the owner of the
lion will be liable even though he had no ill intention to cause death and had taken all
the precautions to keep the lion in the cage. This seems just because the damage
happened only because he brought a dangerous thing on his property. He was also
aware of the consequences if the lion escapes the cage and so he should be made liable
if it escapes and causes damage.
This principle of holding a person liable for his actions without any kind of wrong
doing on his part is called the principle of absolute liability or no fault liability. This
principle was first upheld in the case of Ryland vs Fletcher by the privy council in
1868. However, later on some exceptions to this were also established due to which
"strict liability" is considered a more appropriate name for this principle. In this case,
the defendant hired contractors to build a reservoir over his land for providing water to
his mill. While digging, the contractors failed to observe some old disused shafts under
the site of the reservoir that lead to plaintiff's mine on the adjoining land. When water
was filled in the reservoir, the water flooded the mine through the shafts. The plaintiff
sued the defendant. The defendant pleaded that there was no intention and since he did
not know about the shafts, he was not negligent even though the contractors were. Even
so, he was held liable. J Blackburn observed that when a person, for his own purposes,
brings to his property anything that is likely to cause a mischief if it escapes, must keep
it at his peril and if it escapes and causes damage, he must be held liable. He can take
the defence that the thing escaped due to an act of the plaintiff or due to vis major (act
of God) but since nothing of that sort happened here, then it is unnecessary to inquire
what excuse would be sufficient.
To this rule promulgated by J Blackburn, another requirement was added by the Court
of Exchequer Chamber, that the use must be a non-natural use of land as was the case in
Ryland vs Fletcher itself. For example, growing of regular trees is a natural use but
growing poisonous trees is not. Keeping dogs as pet is a natural use but keeping wild
beasts is not. Thus, the conditions when this rule will apply are
1. The thing kept must be dangerous - The thing kept on the land must be as such as is
likely to cause mischief if it escapes. For example, storing gas or explosives or wild
beasts are all likely to cause damage if they escape.
2. The thing must escape - If the thing is within the boundary of the defendant's land,
he is not liable. The thing must escape out of his land for him to be liable. In
Crowhurst vs Amersham Burial Board 1878, branches of a poisonous tree were
hanging outside the land of the defendant. Plaintiff's cattle ate them and died.
Defendant was held liable because protrusion of branches out side his property were
considered as escaping from his property. However, in Ponting vs Noakes 1994,
when the plaintiff's horse intruded over his boundary and ate poisonous leaves of the
defendant's tree, he was not held liable because there was no escape.
The thing must be a non natural use of land - The use must not be an ordinary use of the
land. There must be a special purpose because of which it brings additional danger
to other. In Noble vs Harrison 1926, a branch of a tree growing on defendant's land
broke and fell on plaintiff's vehicle. It was held that growing regular trees is not a
non natural use of land and the branch fell because of an inherent problem and not
because of any negligence of the defendant and so he was not liable.As mentioned
before the following are exceptions or defenses against this rule 3. Plaintiff's own default - If the thing escapes due to plaintiff's fault the defendant
cannot be held liable. In Eastern and South African Telegraph Co. Ltd. v Capetown
Tramway Co 1902.the plaintiff's submarine cable transmissions were disturbed by
escape of electric current from defendant's tramway. It was held that since the
current was not causing any problem to regular users and it was causing problem to
the cables only because they were too sensitive and so the defendant cannot be held
liable. One cannot increase his neighbor's liabilities by putting his land to special
uses.
EXCEPTIONS
a. Act of God - In circumstances where no human has control over, no one can be
held liable. In Nichols vs Marsland 1876,the defendant created artificial lakes to
store rainwater. In that particular year, there were exceptionally heavy rains,
which caused the embankments to break causing floods, which broke defendant's
bridges. It was held that since there was no negligence on the part of the
defendant and the flood happened only because of rains so heavy that nobody
could imagine, the defendant was not liable.
b.Consent of the plaintiff - If the plaintiff has consented for the accumulation of the
dangerous thing, he cannot hold the defendant liable. This is also the case when an
activity is done for mutual benefit. For example, A lives on the ground floor and the
defendant lives on the floor above A's. Now, a water tank is built by the defendant to
supply water for both of them. The defendant will not be held liable for leakage of
water from the tank.
c.Act of third party - When a third party, who is not an employee or a servant or a
contractor of the defendant is responsible for causing the dangerous thing to escape,
the defendant will not be held liable for the damage. In Box vs Jubb 1879, the
overflow from the defendant's reservoir was caused by the blocking of a drain by
some strangers. The defendant was held not liable. However, if such act can be
foreseen, this defenses cannot be pleaded because the defendant must take
precautions to prevent such an act.
In M.P. Electricity Board vs Shail Kumar AIR 2002, a person was killed by a live
electric wire lying on the road. SC applied the rule of strict liability and held that the
defense of act of stranger is not applicable because snapping of wire can be
anticipated and the Electricity Board should have cut off the current as soon as the
wire snapped.
d.Statutory Authority - When an act is approved by the legislature or is done on the
direction of the legislature, it is a valid defence for an action of tort even when the
rules of Ryland vs Fletcher apply. However, it is not application when there is
negligence.
Position in India
The principle of strict liability is applicable in India as well. For example, Motor
Vehicles Act 1938, recognizes no fault liability. Similarly, the liability of a public
carrier such as railways has also been increased from that of a bailee to an insurer.
However, there has been a deviation in the scope of this rule. Depending on the
situation, its scope has been increased as well as decreased by the courts. For example,
in Madras Railway Co. vs Zamindar 1974, the water collected in a pond for
agricultural purposes escaped and caused damage to the railway track and bridges.
Here, the application of this rule was restricted because the collection of water in such a
way is a necessity in Indian conditions and so it is a natural use of the land. This
mechanism to store rainwater is used throughout the country and since ages. Therefore,
the defendant was not held liable.
ABSOLUTE LIABILITY:
A landmark case in this respect was the case of M C Mehta vs Union of India AIR
1987. In this case, oleum gas from a fertilizer plant of Shriram Foods and Fertilizers
leaked and caused damage to several people and even killed one advocate. In this case,
the rule of Ryland vs Fletcher was applied. However, the company pleaded sabotage as
a defence. SC went one step further and promulgated the rule of Absolute Liability. It
observed that the rule of Ryland vs Fletcher was a century old and was not sufficient to
decide cases as science has advanced a lot in these year. If British laws haven't
progressed, Indian courts are not bound to follow their law and can evolve the laws as
per the requirements of the society. It held that an enterprise that engages in dangerous
substances has an absolute responsibility to ensure the safety of the common public. It
is only the company that can know the consequences of its activities and so it must take
all the steps to prevent any accident. If, even after all precautions, accident happens, the
company still should be made absolutely liable for the damages. The reason being that
the company has a social obligation to compensate the people who suffered from its
activity. SC also laid down that the measure of compensation should depend on the
magnitude and capacity of the enterprise so that it can have a deterrent effect.
Please prepare the above topics in detail this part is very important
1.
4.
5.
6.
7.
8.
9.
Q. Explain various Judicial remedies that are available to a plaintiff in an action of tort.
Are there any extra judicial remedies too? If so, enumerate them. What are the general
types of damages available in cases of Torts? Explain with examples. What is the
doctrine
of
remoteness
of
damages?
Discuss
law
on
this
point.
The law allows only those losses which are not too 'remote'. There are two main tests of
remoteness which are applied in tort, namely direct consequences and reasonably
foreseeable consequences.
Direct Consequence - Provided some damage is foreseeable, liability lies for all the
natural and direct consequences flowing from the breach of duty. In Re Polemis [1921]
3 KB 560 (CA), stevedores, who were servants of the defendant, negligently let fall a
plank into a ships hold containing petrol in metal containers. The impact of the plank
as it hit the floor of the hold caused a spark, and petrol vapour was ignited. The ship
was destroyed. Arbitrators found that the spark could not have been reasonably
foreseen, though some damage was foreseeable from the impact. The defendant was
found liable because the claimants loss was a direct, though not reasonably foreseeable,
result.
Reasonable Foreseeability - In The Wagon Mound (No. 1) [1961] AC 388, the
defendant carelessly discharged oil from a ship in Sydney Harbour, and the oil floated
on the surface of the water towards the claimants
wharf. The claimants servants, who were welding on the wharf, continued their work
after being advised (non-negligently) that it was safe to do so. Sparks from the welding
equipment first of all ignited cotton waste mixed up in the oil; then the oil itself caught
fire. The claimant sued for destruction of the wharf by fire. The defendant was found
not liable in negligence, because it was not reasonably foreseeable that the oil might
ignite on water in these circumstances. Damage by fouling was foreseeable; damage by
fire (the case here) was not foreseeable. The Privy Council said that in the tort of
negligence Re Polemiswas no longer good law, and liability
would lie only for foreseeable damage of the kind or type in fact suffered by the
claimant.
SHORT QUESTION
Contributory Negligence
Leading Cases
Alexander v. Kramer Bros. Freight Lines, Inc. Alexander sued Kramer Brothers after
he suffered personal injuries in an accident with the defendants truck and Kramer
Brothers asserted contributory negligence as a defense. The court held that the plaintiff
has the burden of proof to show that he or she was not contributory negligent.
Baltimore & Ohio R. Co. v. Goodman Goodman was struck and killed by a train while
driving over a railroad crossing. His view was obstructed and he did not get out to look
for an approaching train. The court ordered a directed verdict that Goodman was
contributory negligent on the grounds that no reasonable jury could have found in favor
of the plaintiff under the facts of the case.
Brown v. Kendall Kendall injured Brown while trying to separate their dogs and stop
them from fighting. Brown was standing behind Kendall and he was struck in the eye
with a stick. The court held that the injured party cannot recover if both parties were not
negligent, or if both parties were negligent, or if the injured party was negligent but the
defendant was not.
Butterfield v. Forrester Forrester laid a pole across a road. Butterfield was riding at
high speed at twilight and did not see the pole. He hit the pole and suffered personal
injuries. The court held that Butterfield was contributory negligent because if he had
been using ordinary care he would have been able to see and avoid the obstruction.
Eckert v. Long Island R. R. Co. Eckert saw a boy sitting on railroad tracks. He
succeeded in saving the boy but was struck and killed by the train. The court held that
when a rescuer attempts to save someone in imminent peril, he may assume
extraordinary risks or perform dangerous acts without being contributory negligent.
Martin v. Herzog Martin was killed in an accident while driving a buggy without
lights at night. The defendant was driving on the wrong side of the road. The court held
that the violation of a statutory duty of care is negligence per se and a jury may not
relax that duty. In order for a party to be liable for negligent conduct, the conduct must
be the cause of the injury.
Roberts v. Ring Ring was 77 years old and had impaired hearing and vision. While
driving on a busy street he saw a seven year old boy run into his path but failed to stop
in time to avoid hitting him. The court held that while the defendant cannot take
advantage of impairments and infirmities to avoid a finding of negligence, the injured
party is held to a standard that takes age and maturity into account.
Smithwick v. Hall & Upson Co. Smithwick was told not to work on a platform but was
not told that the wall was about to collapse. He worked on platform despite the warning
because he believed the risk of falling was the only danger. The court held that the
failure to heed a warning is not contributory negligence if the injury was the result of a
different source of risk caused by the defendant, and the injured party was unaware of
that risk.
Solomon v. Shuell Plain clothes police officers were arresting robbery suspects. The
decedent thought the suspects were being attacked and was shot by one of the officers
when he came out of his house with a gun. The court held that under the rescue
doctrine, contributory negligence is not present if the rescuer had a reasonable belief
that the victim was in actual danger.
9. Importation made in good faith by person for protection of his or others interests10. Caution intended for good of person to who conveyed or for public goods. 500- Punishment for defamation- two years or fine or both.
s. 501- Printing or engraving matter known to be defamatory- Whoever prints or
engraves any matter, knowing that to be defamatory of any person, shall be punished
with two years or fine or both.
s. 502- Sale of printed or engraved substance containing defamatory matterWhoever sells or offers for sale any printed substance containing defamatory matter
knowingly, shall be punished with two years or fine or both.
Classification of defamation
Defamation is of two types- libel and slander. Distinction between the two isLibel
Slander
It is written
It is oral
It is permanent
It is temporary
It is only tort
It is actionable per se
Defamatory statement is one which tends to injure the reputation of the plaintiff.
Whether a statement is defamatory or not depends upon how the right thinking
members of the society are likely to take it.
D.P. Choudhury v. Manjulata (1997)-There was publication of a statement in a local
daily in Jodhpur that Manjulata went out of her house on the earlier night at 11 p.m. on
the pretext of attending night classes and ran away with a boy named Kamlesh. She
belonged to a well educated family and was herself also a student of B.A class. She was
17 years of age. The news item was untrue and had been published with utter
irresponsibility and without any justification. Such publication had resulted in her being
ridiculed and affected her marriage prospects. The statement being defamatory, the
defendants were held liable.
The Innuendo
A statement may prima facie be innocent but because of some latent or secondary
meaning, it may be considered to be defamatory. When the natural and ordinary
meaning is not defamatory but the plaintiff wants to bring an action for defamation, he
must prove the latent or the secondary meaning, i.e. innuendo.
Intention to defame is not necessary- When the words are considered to be
defamatory by the persons to whom the statement is published, it is immaterial that the
defendants did not know of the facts, is considered to be defamatory.
Cassidy v. Daily Mirror Newspapers Ltd.- Mr. Cassidy was married to a lady who
called herself Mrs. Cassidy. The defendants published in their newspapers a photograph
of Mr. Cassidy and Miss X with the following words underneath: Mr. M. Cassidy, the
race horse owner, and Miss X, whose engagement has been announced. Mrs. Cassidy
sued the defendants for libel alleging that the innuendo was that Mr. Cassidy was not
her husband and he lived with her in immoral cohabitation. The Court of Appeal held
that the innuendo was established.
ii) The statement must refer to the plaintiffIn an action for defamation, the plaintiff has to prove that the statement of which he
complains referred to him. It is immaterial that the defendant did not intend to defame
the plaintiff.
Newstead v. London Express Newspapers Ltd.- the defendants published an article
stating that Harold Newstead, a Camberwell man had been convicted of bigamy. The
story was true of Harold Newstead, a Camberwell barman. The action for defamation
was brought by another Harold Newstead, a Camberwell barber. As the words were
considered to be understood as referring to the plaintiff, the defendants were held liable.
iii) the statement must be publishedPublication means making the defamatory matter known to some person other than the
person defamed, and unless that is done, no action for defamation lies.
Mahendra Ram v. Harnandan Prasad- the defendant sent a defamatory letter written
in Urdu to the plaintiff. The plaintiff did not know Urdu and therefore the was read over
to him by third person. It was held that the defendant was not liable unless it was
proved that at the time of writing the letter in Urdu script, the defendant knew that the
Urdu script was not known to the plaintiff and would necessitate reading of the letter by
a third person.
iv) the statement must be passed by the defendant
Defences:
The defences to an action for defamation are1. Justification of truth
2. Fair comment
3. Privilege which may be either absolute or qualified.
1. Justification of truthIn a civil action for defamation, truth of the defamatory matter is complete defence.
Under the Penal Code, merely proving that the statement was true is no defence.
Section 499 requires that besides being true, the imputation must be shown to have been
made for public good.
2. Fair commentFor this defence it is required:
a) It must be a comment i.e. an expression of opinion
b) the comment must be fair
3. Privilege is of two types: (a) Absolute privilege and (b) Qualified privilege
(a) Absolute privilegei) Parliamentary proceedings- Art. 78(3) of the Constitution states, a member of
Parliament shall not be liable in any Court in respect of anything said, or any vote
given, by him in Parliament or in any committee thereof.
ii) Judicial proceedingsiii) State communications(b) Qualified privilege- in certain cases, the defence of qualified privilege is also
available. To avail this defence, the defendant has to prove the following two points:
i) The statement was made on a privileged occasion, i.e. it was in discharge of duty or
protection of an interest
ii) The statement was made without any malice.
Trespass:
Trespass is of two types:
(i) Trespass to body,
(ii) Trespass to land
Trespass to body: please prepare the ASSAULT and BATTERY in this topic
Trespass to land or property:
Trespass to land means interference with the possession of land without lawful
justification. In trespass, the interference with the possession is direct and through some
tangible object.
Trespass is a wrong against possession rather than ownership. Therefore, a person in
actual possession can bring an action even though, against the true owner, his
possession was wrongful.
Remedies: both judicial and extra judicial. Extra judicial remedies are:
i) Re-entry
ii) Action for ejectment
iii) Action for mesne profit
iv) Distress damage pheasant- to seize trespassing cattle until compensation has been
paid.
Judicial remedies are mentioned in s. 297 and 441-462 of the Penal Code, 1860:
Liability:
Liability is of two types:
(i) Absolute or strict, and
(ii) Vicarious.
(i) Absolute or strict liability- Sometimes a person may be liable for some harm even
though he is not negligent in causing the same, or there is no intention to cause the
harm, or sometimes he may even have made some positive efforts to avert the same.
In Rylands v. Fletcher, 1868, the House of Lords laid down the rule recognizing no
fault liability. The liability recognized was strict liability, i.e. even if the defendant
was not negligent or rather, even if the defendant did not intentionally cause the harm or
he was careful, he could still be made liable under the rule.
Facts of the case- the defendants got a reservoir constructed, through independent
contractors, over his land for providing water to his mill. There were old disused shafts
under the site of the reservoir, which the contractors failed to observe and so did not
block them. When the water was filled in the reservoir, it burst through the shafts and
flooded the plaintiffs coal-mines on the adjoining land. The defendant did not know of
the shafts and had not been negligent although the independent contractors had been.
Even though the defendant had not been negligent, he was held liable.
(ii) Vicarious liability- In certain cases, a person is held liable for the act of another
person. The common example of such liability area) Liability of the principal for the tort of his agent
b) Liability of partners of each others tort
c) Liability of the master for the tort of his servant
a) Principal and agent- Where one person authorizes another to commit a tort, the
liability for that will be not only of that person who has committed it but also of that
who authorized it. It is based on the general principle Qui facit per aliumfacit per se
which means that the act of an agent is the act of the principal. For any act authorized
by the principal and done by the agent both of them are liable.
Lloyd v. Grace, Smith & Co. Mrs. Lloyd, who owned two cottages but was not
satisfied with the income there from, approached the office of Grace, Smith & Co., a
firm of solicitors, to consult them about the matter of her property. The managing clerk
of the company attended her and advised her to sell the two cottages and invest the
money in a better way. She was asked to sign two documents, which were supposed to
be sale deeds. In fact, the documents got signed were gift deeds in the name of the
managing clerk himself. He had acted solely for his personal benefit and without the
knowledge of his principal. It was held that since the agent was acting in the course of
his authority, the principal was liable for the fraud.
b) Partners- The relationship as between partners is that of principal and agent. The
rules of the law of agency apply in case of their liability also. For the tort committed by
any partner in the ordinary course of the business of the firm, all other partners are
liable to the same extent as the guilty partner.
Hamlyn v. Houston & Co.- One of the two partners of the defendants firm, acting
within the general scope of his authority as a partner, bribed the plaintiffs clerk and
induced him to make a breach of contract with his employer (plaintiff) by divulging
secrets of the firm were liable for this wrongful act committed by only one of them.
c) Master and servant- A servant is a person employed by another to do work under
the directions and control of his master. If a servant does a wrongful act in the course of
his employment, the master is liable for it. The servant, of course, is also liable. The
doctrine of liability of the master for act of his servant is based on the maxim
respondent superior, which means let the principal be liable.
For the liability of the master to arise, the following two essentials are to be present:
i) The tort was committed by the servant;
ii) The servant committed the tort in the course of his employment.
Nuisance:
Nuisance
Interference is direct.
Interference is consequential.
Private nuisance
It is a crime.
It is a civil wrong
Defence
i. Prescriptive right to commit nuisance- A right to do an act, which would otherwise
be a nuisance, may be acquired by prescription. If a person has continued with an
activity on the land of another person for 12 years or more, he acquires a legal right by
prescription, to continue therewith in future also. This right is called easement right.
ii. Statutory authority- An act done under the authority of a statute is a complete
defence. Thus, a railway company authorized to run railway trains on a track is not
liable if, in spite of due care, the sparks from the engine set fire to the adjoining
property, or the value of the adjoining property is depreciated by the noise, vibrations
and smoke by the running of trains.
Provisions of nuisance in the Penal Code
There are 11 types of nuisance mentioned in s. 268 s. 294A.
Please prepare the given topics in detail from book this is only just introduction.
NEGLIGENCE
Meaning:-the term negligence means where a person has a duty to take care and the
care is not taken resulting in injury to another. In other words, infliction of an injury or
damage as a result of failure to take care is called Negligence.
Definition:- prof. Winfield defined negligence as the breach of a legal duty to take
care, which results in damage, undesired by the defendant to the plaintiff.
Baron Alderson in Blyth vs. Birmingham water works co., defined Negligence is the
omission to do something, which a reasonable man guided upon those consideration,
which ordinarily regulate human affairs, would do or doing something, which a prudent
or reasonable man would not do
Essentials of Negligence:- the plaintiff in an action for negligence, has to prove the
following conditions :
I.
That the defendant owed a duty of care towards the plaintiff (Defendants duty to take
care towards the plaintiff).
II.
That the defendant committed a breach of such duty (Breach of duty by the defendant);
and
III.
That the plaintiff suffered damage as a consequence thereof (i.e. proximate damage).
1. Defendants duty of care towards the plaintiff:- the plaintiff has to prove that the defendant
owed a duty of care towards him. This question came for discussion in the following leading
case:
Donoghue vs. Stevenson(1932)A.C. 562 : in the instant case Lord Atkin laid down the
principle of neighbourhood to decide the existence of such duty of care.
2. Breach of duty:- the plaintiff has to prove that the defendant committed a breach of duty.
Breach of duty means non-observance of a duty or failure to take care. Whether the
defendant had taken necessary care or not depends upon the following factors.
CONTRIBUTORY NEGLIGENCE
It means an act of negligence in which both the defendant and the plaintiff are
contributors. That is both of them have equally contributed for the commission of a
negligent act.
Butterfield vs. FORESTERS
TRESPASS
TRESPASS TO PERSON
Assault
An act which causes another person to apprehend the infliction of immediate, unlawful
force on is person (Collins v Wilcock [1984]).
Applies where dft directly or indirectly causes the plf to apprehend contact. Belief of
contact must be reasonable. Must be mental impact on plf. Words can of themselves
constitute an assault, but mere insults are not enough.
Collins v Wilcock [1984
Authority for the proposition that an act which causes another person to apprehend the
infliction of immediate, unlawful force on is person.
Battery
The actual intended use of physical force to another person without his consent or
any other lawful excuse (AG Reference [1981])
Direct or indirect (upturning of chair while sitting on it) contact with a person without
consent or lawful authority. Force or physical injury is not required but there must be
some form of contact, although it can be slight such as spitting or lightly touching.
Traditionally a battery was considered to be an intentional touching of a harmful,
hostile, malicious or offensive nature to which no consent or authority had been given
either orally or verbally. Requirement of proof of hostility or malice has been
abandoned by the courts: Re F [1990]: unreasonable limitation on battery action. Prank,
over-friendly slap on back, surgery where mistake re consent no hostile element but
may not be lawful.
Often against employees such as security guards, bouncers etc. Employee must show he
acted proportionately and with minimal force and may justify as self-defence of defence
of property. Is disproportionate or excessive: battery. In general it will be held that
employee is acting outside the scope of his employment if excessive force is used and
therefore the employer is not vicariously liable.
aGibbons v Securicor [2004]: Court found that:
- An occupier can withdraw a persons licence to be present & individual commits
trespass if refuses to leave.
- A degree of force may be used to remove a person from the premises where they are
trespassing.
- If a person assaults or batters another or attempts to, that other person can use
reasonable force to defend themselves.
Victim of child sexual or violent abuse may sue in trespass. Statute of Limitations
(Amendment) Act 2000: postpones operation of 6 year limitation where plf suffered
significant psychological injury as result of earlier abuse. Delahunty for vicarious.
False Imprisonment
The unlawful restraint or detention of the plf.
Essential element is the unlawful detention of the person, or the unlawful restraint on
his liberty. Does not need to be actually aware that being falsely imprisoned. May be
imprisonment without walls detention must only be such as to limit the partys
freedom of movement in all directions. - Dullughan v Hillen [1957].
Blocking one means of exit will not suffice if plf has reasonable means of escape (not
dangerous or where plf was not aware of Meering v Graham White Aviation). Bird v
Jones: Hammersmith Bridge, refused to use alternative not false imprisonment.
Vicarious liability where tort was committed in course or scope of employment and if
acts excessive, courts must determine whether authorized by employer. Dillon v Dunnes
Stores [1968]
TRESPASS TO LAND
Trespass to land occurs where a person directly enters upon another's land without permission,
or remains upon the land, or places or projects any object upon the land.
This tort is actionable per se without the need to prove damage.
By contrast, nuisance is an indirect interference with another's use and enjoyment of land, and
normally requires proof of damage to be actionable.
WAYS IN WHICH TRESPASS MAY OCCUR
A continuing trespass is a failure to remove an object (or the defendant in person) unlawfully placed
on land. It will lead to a new cause of action each day for as long as it lasts (Holmes v Wilson and
others (1839) 10 A&E 503; Konskier v Goodman Ltd [1928] 1 KB 421).
For example, in Holmes v Wilson and others (1839) the Ds built supports for a road on P's land. The
Ds paid damages for the trespass, but were held liable again in a further action for failing to remove
the buttresses.
MISTAKEN OR NEGLIGENT ENTRY
Trespass to land is an intentional tort. However, intention for the act is required, not an intention to
trespass. Consequently, deliberate entry is required and lack of knowledge as to trespass will not be a
defence (Conway v George Wimpey & Co [1951] 2 KB 266, 273).