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Lecture Notes on Law of Torts

2oo9-2010

Edited by:

Mr. ANEESH V. PILLAI, LLM (Gold


Medalist) Assistant Lecturer Hidayatullah National Law University, Raipur, C.G.

TABLE OF CONTENTS

I.

Module I: INTRODUCTION [No. of Lectures Required 5-6]

Unit 1. Introduction Definition, Nature and Scope of Law of Torts Torts and Crime - Torts and Contract Essential Elements of Law of Torts. Unit 2. Pigeon Hole Theory - Relevancy of Motive in Law of Torts.

II.

Module II: PARTIES [No. of Lectures Required 6-7]

Unit 1. Capacity and Parties in Torts Joint and Several Tort-feasors Malfeasance, Misfeasance, Nonfeasance. Unit 2.Vicarious Liability Introduction Master and Servant Doctrine of Common Employment.

III.

Module III:

DEFENCES [No. of Lectures Required 6]

Specific Defences Volenti non fit injuria Act of God (Vis major) Inevitable Accident Necessity Private Defense Novus actus interveniens Contributory Negligence Statutory Authority Judicial and Quasi-judicial Authority Parental and Quasi-parental Authority.

IV.

Module IV:

TRESPASS

[No. of Lectures Required 6-8]

Unit 1. Trespass to Person Assault Battery Mayhem False Imprisonment. Unit 2. Trespass to Land Definition Methods Trespass abinitio Remedies Defences 2

Unit 3. Trespass to Goods Definition Essential Elements - Remedies.

V.

Module V:

NUISANCE and NEGLIGENCE

[No. of Lectures Required 6-8]

Unit 1. Nuisance Definition Types of Nuisance: Private, Public and Statutory Nuisance Essentials of Private Nuisance Remedies Defences. Unit 2. Negligence Definition Elements of Negligence Res Ipsa Loquitor Contributory Negligence Defences.

VI.

Module VI: DEFAMATION and MALICIUOS PROSECUTION [No. of Lectures

Required 5-6]

Unit 1. Defamation Introduction Definition Libel and Slander Its Differences Essentials of Defamation Innuendo Defences. Unit 2. Malicious Prosecution Essential Conditions Distinction between Malicious Prosecution and False Imprisonment.

VII.

Module VII:

LIABILITY [No. of Lectures Required 5-6]

Unit 1. Strict Liability Introduction Rule in Rylands v. Fletcher- Dangerous thing Escape of thing - Non-natural use of land Exceptions - Its criticisms. Unit 2. Absolute Liability Bhopal Gas Leak Disaster Case. Unit 3. Nervous Shock Its Meaning and Principles Conclusion.

VIII.

Module VIII:

ECONOMIC TORTS [No. of Lectures Required 5-6]

Malicious Falsehood Tort of Passing off Intimidation Conspiracy Inducing breach of Contract Detinue Tort of Conversion (Trover) Tort of Deciet Slander of Title Slander of Goods.

IX.

Module IX:

REMEDIES [No. of Lectures Required 4-5]

Unit 1. Judicial Remedies Damages Types of Damages Remoteness of Damages Injunction Specific Restitution Constitutional Remedies. Unit 2. Extra-judicial Remedies Self-help Expulsion of trespasser Re-entry on Land Recatpion of Goods Distress damage feasant Abatement.

X.

Module X:

NEW and EMERGENT TORTS [No. of Lectures Required 4-5]

Unit 1. Cyber Torts- Cyber Stalking Cyber Breach of Privacy Cyber Obscenity Cyber Defamation. Unit 2. Tort of Sexual Harassment Tort of Domestic Violence Environmental Torts Constitutional Torts - Tort of Breach of Confidence Abuse of Governmental Powers Infringement of a status Innominate (Prima facie) Torts Euro Torts.

XI.

Module XI:

EXTINCTION OF TORTIOUS LIABILITY [No. of Lectures Required 4-5]

Extinction of Tortious Liability Waiver Release Acquiescence Accord and Satisfaction Judgment Limitation Effect of Death in Torts Law XII. Module XII: CONSUMER PROTECTION ACT, 1986 [No. of Lectures Required 5-6]

Unit 1. History and Development of Consumer Protection Laws in India Object and Reasons of Consumer Protection Act, 1986 4

Unit 2. Definitions- Consumer Protection Councils - Consumer Disputes Redressal Agencies Suggestions for Improvement. XIII. Miscellaneous Matters- Articles- Xerox etc.

XIV. Model Question Paper

MODULE I

INTRODUCTION The word tort is a French origin and has been derived from the Latin word tortum which means to twist and implies conduct which is tortious or twisted. The word tort is equivalent of the English word wrong of the Roman word delicit and of the Indian Sanskrit word jimha. According to P. Sen., this Sanskrit word Jimha which means crooked was used in ancient Hindu Law text in the sense of tortious or fraudulent conduct. In 1065 England was conquered by the Normandy people. Normandy is a place in France. After Norman Conquest, French became the spoken language of the courts and language of treaties for a long numbers of years. Thus it happened that many technical terms of English law are French in origin and tort is one of them. The Law of Torts in India: Under the Hindu law and Muslim law tort had a much narrower conception than the tort of the English law. The punishment of crimes in these systems occupied a more prominent place than compensation for wrongs. Its origin in India linked with the establishment of British courts in India. In the 18th century the first British courts were established in the three presidency towns of Bombay, Calcutta and Madras. These courts were known as Mayors courts. The charter which established them introduced in their jurisdiction, the English common law of torts in force at the time so far as it was applicable to the Indian circumstances. Thus the word tort was introduced in Indian Legal system.
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Definition of Tort: Academics have attempted to define the law of tort, but a glance at all the leading text books on the subject will quickly reveal that it is extremely difficult to arrive at a satisfactory, all-embracing definition. Each writer has a different formulation and each states that the definition is unsatisfactory. Winfield: Tortious liability arises from a breach of a duty priority fixed by law; this duty is towards persons generally and its breach is reddressable by an action for unliquidated damages. This definition is more informative but is far from perfection. Salmond: Tort is a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation. Clerk & Lindsell: A tort may be described as wrong independent of contract for which the appropriate remedy is common law action. Both these definitions failed to explain what is wrong. Fraser: It is an infringement of right in rem of a private individual giving a right of compensation at the suit of the injured party. This definition also lacks some perfection. See 2(m) of Indian Limitation Act, 1963 : Tort means a civil wrong which is not exclusively a breach of contract or breach of trust. This definition is good but it fails to explain the civil wrong and its remedies. According to RK Bangia, Tort is a civil wrong which is redressable by an action for unliquidated damages and which is other than a mere breach of contract or breach of trust. The essential features of tort which appear from the above definitions are as follows:1. 2. Tort is a civil wrong as it is a breach of duty. The duty is one imposed by the state. It is not self-imposed as in contract. That is why the definition makes it clear that the duty is one not arising out of contract.
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3. 4.

The duty must be towards persons generally. The remedy of a person aggrieved by a tort is that an unliquidated damages.

In order to understand the exact nature of tort, it is necessary to distinguish tort from other branches of law, and in so doing to discover how the aims of torts differ from the aims of other areas of law such as contract law and criminal law.

TORT AND CRIME: 1. A tort is an infringement of private or civil right of an individual. A crime is a breach of public right and duties which affect the community as a whole. 2. The wrongs which are comparatively less serious are considered to be private wrongs and have been labeled as wrongs where as more serious wrongs have been considered to be public wrongs and are known as crimes. 3. In tort the action is instituted by the injured party. In Crime the proceedings are conducted in the name of the state. 4. The rules applicable in case of tort are generally different from those in the case of crime. E.g. in the case of tort of defamation, truth is in itself a good defence but is an action for the offence of defamation the defence of the truth can be taken if the publication was made for public good. 5. Intention is important in tort but not in all cases e.g. Negligence. In crime intention is the crux of the offence. 6. In tort an individual at his own cost and effort conducts a case but in criminal law the public prosecutor at the cost of state conducts the proceedings.

7. The object of an action in tort is recovery of compensation. Whereas the object of criminal law is to punish the offender. 8. In tort unliquidated damages can be recovered. But in criminal law it is not possible.

TORT AND CONTRACT (BREACH OF CONTRACT)

1. In tort duty is fixed by the law itself. In contract the duty is fixed by the parties themselves. 2. In tort duty is towards every person of the community or society. In contract the duty is towards specific person or persons. 3. Tort is a violation of a right in rem. It vindicates numerous types of interests like interest in person (Assault, Battery) interest in property (trespass to land, nuisance etc.) Breach of contract is violation of a right in personam. It vindicates only single interests. 4. A tort is committed against or without consent. A contract is based on consent. 5. In torts privity rule is out of place but in contract privity between parties must be proved. 6. In tort motive also taken into account but in contract motive is not relevant. 7. In torts, gratuitous service if negligently performed invites an action. But in breach of contract breach of a gratuitous undertaking is not actionable. 8. In tort damages recoverable are unliquidated and uncertain in amount. In contract damages are compensatory and not punitive. 9. Tort law is concerned with losses. But contract law concerned with promises.
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UBI JUS IBI REMEDIUM.

This maxim forms the very foundation of the law of torts. The maxim means where there is a right there is a remedy. In other words, no wrong can remain without remedy. Jus signifies the legal authority to do or to demand something and remedium is the right of action or the means offered by law to assert the right or to recover something under it.

Holt in Ashby V. White1 very significantly observed, if a person has a right, he must of necessity have a means to vindicate and to maintain it, and a remedy if he is injured in the exercise or enjoyment of it, and indeed it is a vain thing to imagine a right without a remedy; want of right and want of remedy are reciprocal.

This maxim is ever-fresh and is like a livewire that keeps the law alive to the needs of society.

(1703) 2 Lord Rayam 933

ESSENTIALS OF A TORT:

In order to constitute a tort, the following three conditions are to be satisfied:

1) There must be a wrongful act or omission on the part of the defendant:

In order to make a person liable for a tort he must have done some act which he was not expected to do or he must have omitted to do something which he was supposed to do. E.g. A is under a duty not to trespass into Bs property, A trespassed into the Bs property, so As act is a wrongful action, and B can claim compensation.

If A is under a duty to provide fencing to keep the children away from a poisonous tree, but he failed to do so, so a child plucked and ate the fruits and died. A is liable for his omission. ( Glasgow corps v.Taylor2)
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(1922) 1 AC 44

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A municipal corporation is failed to keep the Clock Tower in proper repairs and resulted in the falling of the same which resulted into death of number of persons. Corporation held liable for its omission. (Municipal Corporation, Delhi v. Subhawanti3 ) The wrongful act or omission must be one recognized by law, if there is a mere moral wrong, there cannot be a liability for the same. E.g. A failed to help a starving men, A failed to help a drowning child, in these cases there is no liability arise.

2) The wrongful act or omission must cause legal damage to the plaintiff:

In order to be successful in an action for tort, the plaintiff has to prove that there has been a legal damage caused to him if there has been a violation of a legal right the same is actionable whether as a consequence thereof the plaintiff has suffered any loss or not. This is expressed by the maxim Injuria sine damnum.

AIR 1966 SC 1750

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Injuria sine Damnum:

Injuria means infringement of a right conferred by law on the plaintiff or an unauthorized interference, howsoever trivial with plaintiffs right. Damnum means substantial harm, loss or damage in respect of money, comfort, health or the like. This maxim means infringement of private legal right without damage or loss. In such a case the persons whose right has been infringed entitled to bring an action and may recover damage from the person who has violated his right. It means whenever there is an infringement of private legal right, the person in whom the legal right is vested is entitled to bring an action and may recover damages, although he has suffered no actual loss or harm.

The leading example of this maxim is Ashby v. White4. In this case the defendant a returning officer wrongfully refused to register a duty tendered vote of the plaintiff who has a qualified voter. The candidate for whom the vote was tendered was elected and hence no loss was suffered by the rejection of the plaintiffs vote. The court awarded damages on the ground that the violation of plaintiffs legal right was an injury for which he must have a remedy and actionable without proof of pecuniary damage.

In Bhim Singh v. State of J&K5, the petitioner, an MLA of Jammu & Kashmir assembly was wrongfully detained by the police while he was going to attend the assembly session. As a consequence of this the

See note 1 AIR 1968 SC 494

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member was deprived of his constitutional right to attend the assembly session. The court awarded a sum of Rs. 50000/- as compensation.

In another case Constantine v. Imperial Hotels Ltd6, in this case the West Indies cricketer Constantine was refused accomadation at the defendants hotel where he wished to stay and already booked a room. The hotel authorities however gave accommodation at some other hotel of theirs. The court held that the plaintiff was entitled to get a nominal damage.

Damnum Sine Injuria:

This maxim means damage or loss without infringement of legal right. Thus no action lies for mere damage or loss, however substantial caused by an act which does not infringe some legal right of the plaintiff. This principle is well illustrated in Gloucester Grammar School case7. In this case the defendant had set up a rival school to that of the plaintiffs with the result that the plaintiffs were required to reduce the tuition fees of their school substantially as the boys from the plaintiffs school were running away to that the defendants school. It was held that the plaintiff had no cause of action against the defendant because it was only a case of damnum sine injuria.

When an act or omission which has resulted in damage in lawful, that is when it has caused damage to another in the mere exercise of a legal right, would an action lie in respect of it even though the act or omission may be deliberate and harm caused is malicious. This question arised in Mayor of Bradford v.
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(1944) KB 693 1410 YB 11

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Pickles8 Case, the defendant had a piece of land which he offered to the Bradford Corporation for sale. The offer was not accepted this infuriated the defendant. The corporation was supplying water to a village by means of wells on its own land. The wells were fed by an underground stream passing underneath the land of the defendant which was on a higher level. The defendant began to dig deep on his own land. The under ground water was thus impounded by him on his own land and was prevented from reaching the corporation well. The object of the defendant was to compel the corporation to buy his land at his own price. The House of Lords held that since the defendant was exercising his lawful right he could not be made liable even though the defendant acted maliciously. Mogul steamship Co. v. Mc Gregor Grow and Co 9. In this case a number of steamship companies combined together and drove the plaintiff company out of the tea- carrying trade by offering reduced fright. The House of Lords held that the plaintiff had no cause of action as the defendants had by lawful means acted to protect and extend their trade and increase their profits.

3. Legal Remedy:

The last and final ingredient of a tort is that there must be a civil action available for damages which is the main remedy. Other remedies such as injunction are additional only. Where the damages is the secondary remedy, the wrong though civil in nature not a tort. E.g. Injunction is the appropriate remedy is the case of public nuisance without special damages.

PIGEON HOLE THEORY (FOUNDATION OF TORTIOUS LIABILITY)


8 9

(1895) AC 587 1892 AC 25

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All injuries done to another person are torts unless there is some justification Winfield - Discuss There is no law of tort, there is only law of torts- Salmond -Discuss According to Winfield all injuries done to another person are torts unless there is some justification recognized by law. According to him if I injure my neighbor, he can sue me in tort whether the wrong happens to have particular name like assault, battery, deceit, slander or whether it has no such name at all and I shall be liable if I cannot prove lawful justification. On this view the law of tort consists not merely of all those torts which have acquired specified names but also includes the wider principle that all unjustifiable harms are tortious. This enables the courts to create new torts. Against Winfields definition of tortious liability, therefore Salmond posed a pertinent question, Does the law of torts consists of a fundamental general principle that it is wrongful to cause harm to other persons in the absence of some specific ground or justification or excuse or does it consist of a number of specific rules prohibiting certain kinds of harmful activity and leaving all the residue outside the sphere of legal responsibility? This brings us to well-known schools of thought one called the Unity Theory of Winfield and the other, the Pigeonhole theory of Salmond. Winfield propagated that every injury is a tort unless justified. Salmond exposed that no injury is a tort unless it falls within the specified category of any accepted tort. A tort is private wrong arising from the breach of a duty imposed by the state. The state imposes duties of various kinds. For instance, there is a duty not to cause bodily harm to another, a duty not to
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slander, and a duty not to enter upon the land of another without his permission and so on. The breach of these duties gives rise respectively to the tort of trespass to person, defamation, trespass to property and so on. There are thus a large number of torts in the nature of things there need be no connection thread running through all these wrongs. For this reason it is said that there is no law of tort as such and there is only a law of torts. This is called the Pigeon hole theory of torts. It is so called because each tort is supposed to occupy one pigeon-hole as it were and there is no connecting link with the rest. According to Salmond the liability under this branch of law arises only when the wrong is covered by any one or the other nominate torts. There is no general principle of liability and if the plaintiff can place the wrong in any one of the pigeon- holes each containing a labeled tort, he will succeed. If there is no Pigeon-hole in which the plaintiffs case could fit in, the defendant has committed no tort. One important consequence of this theory is that no new torts can be recognized i.e. a novel situation causing injury cannot lead to a new tort. It is true that courts are reluctant to recognize new torts. But to assert that the categories of torts are closed would not be correct. Further we can define tort as such without reference to any specific tort. This itself shows that we can have a general law of tort. Thus this theory is unsound. However each theory seems to have received some support. In 1702, Ashby v. White clearly established in favour of the first theory (Winfields theory) recognizing ubi jus ibi remedium. Holt CJ, said that if men will multiply injuries, action must multiplied too. For every man who injured ought to have recompense. Similarly in Chapman v. Pickersgill10, Prat CJ, said Torts are infinitely various not limited or confined. This theory has been supported by Sir F. Pollock and also it led to the creation of new torts, by the eminent judges. For e.g. In the case of Palsely v. Freeman11 tort of Deceit was created, inducement of

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(1762) Wils 145 (1789) 3 TR 51

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breach of contract was in Lumely v. Gye12, the rule of strict liability in Rylands v. Fletcher13, inducement to a wife to leave her husband in Winsmore v. Greenbank14, and the tort of intimidation in Rooks V. Barnard15. Dr Jenks favoured Salmonds theory. He has of the view that Salmonds theory does not imply that the courts are incapable of creating new torts. According to him, the court can create new torts but such torts cannot be created unless they are substantially similar to those which are already in existence. His view does not appear to be correct as various new torts like deceit, negligence, strict liability, which have come into existence, are not similar to any of those torts which are already in existence. Heuston is of the view that Salmonds critics have misunderstood him. According to him Salmond never committed himself to the proposition, certainly untenable now and probably always so that the law of torts is a closed and in expansible system. Dr. Glanwille Williams also makes a similar remark, according to him, to say that the law can be collected into pigeon holes does not mean that those pigeon hole may not be capacious nor does it mean that they are incapable of being added to. Winfield made a modification in his stand in his subsequent edition regarding his own theory. He now thought that both his and Salmonds theories were correct, the first theory from a broader point of view and the other from a narrower point of view. In the words of Winfield, from a narrow and practical point of view the second theory will suffice but from a broader outlook the first is valid. If we concentrate attention on the Law of Tort at the moment entirely excluding the development of law, past and future then it corresponds to the second theory. If we take the wider view that law of tort has grown from centuries and is still growing then the first theory seems to be at the back of it. It is the difference between treating a tree as inanimate for the practical purposes of the moment e.g. For the purpose of avoiding collision with it, it is as lifeless as a block of marble and realizing that it is animate because we know that it is grown and is still growing.

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(1853) 2 E & B 216 (1868) LR 3 HL 330 (1745) Willies 557 1964 AC 1129

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Thus each theory is correct from its point of view. It is a question of approach and looking at the things from a certain angle. Objectives of Tort: 1. Compensation: The most obvious objective of tort is to provide a channel for compensating victims of injury and loss. 2. Protection of Interest: The law of torts protects a persons interest in land and other property in his or her property, reputation and his or her bodily integrity. 3. Vindication: Tort provides the means whereby a person who regards him or herself as innocent in a dispute can be vindicated by declared publicly to be in the right by a court. 4. Deterrence: it has been suggested that the rules of tort have a deterrent effect encouraging people to take fewer risks and to conduct their activities more careful, mindful of their possible effects on other people and their property. Relevancy of Motive in Law of Torts: Motive and malice are two distinct words used differently in the law of torts. Motive means ulterior or inner drive which signifies the reason for a mans conduct. When an act is done with a bad intention then it is called malice. Intention signifies full advertence in the mind of the defendant to his conduct, which is in question, and to its consequences, together with desire for those consequences. Malice for a lay man or common acceptance means ill-will against a person but in its legal sense a wrongful act, done intentionally without just cause or excuse. When we take the meaning of malice in its ordinary sense, such as, ill-will spite or hatred, then we call it as malice in fact. Malice in law means a wrongful act done intentionally without just cause or excuse. Thus malice in law is implied in every case where a person has inflicted injury upon another in contravention of the law, without just cause or excuse. Malice in fact is generally relevant in the torts of defamation on a privileged occasion, malicious prosecution, injurious falsehood, deceit and conspiracy. Thus malice in fact is not entirely irrelevant in the law of torts. Motives on the other
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hand generally irrelevant in law of torts and this irrelevancy of motive was affirmed by the House of Lords in Bradford Corporation v. Pickle Case 16. The same rule was followed in India and the best illustrations to this is the case of Nanker v. Ah Fong17, where it was observed (AIR 1935 Rang.73.) by the court that the motive of the person doing the act is immaterial.

Refer V.M Joshi v. TLH Smith Pearse AIR 1949 Nag. 362 Mz Rahim v. SN Mukhopadhyaya AIR 1934 Cerl. 752 The rule in Pickle case is not very satisfactory as far as Indian situation is concerned. It would mean that in Indian law which follows English common law, greed, ill-will and spitefulness are permitted to reign supreme. On this point our law is unsatisfactory as compared to civil law system in several European states. For e.g. In India there is nothing to prevent a man from capriciously setting fire to his own oil well or cornfield or blocking up his neighbors prospect by a spite fence etc, which does not happen to fall within some definite tort or crime. So some kind of necessary change is needed in India by applying the pickles rules.

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(1895) AC 587 HL (1934) 13 Rang 175

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Suggested References:

1. W V H Rogers, Winfield & Jolowicz Tort, 17th Edn-2006, Sweet & Maxwell, London. [ Chapters 1,3] 2. RFV. Heuston & RA Buckly, Salmond and Heuston on Law of Torts , 20th Edn- 1992, Universal Law Publishers, Delhi. [ Chapter 2] 3. SP Singh & Indrajith Singh, Law of Torts, 4th Edn 2006, Universal Law Publishers, Delhi. [ Chapters 1-4] 4. B M Gandhi, Law of Torts, EBC, Lucknow, 2002. [ Chapters 1,2] 5. R K Bangia, Law of Torts, 8th Edn- 2005, Allahabad Law Agency, Haryana. [Chapter 1] 6. Ratanlal & Dhirajlal, The Law of Torts, 24th Edn-2004, Wadhwa, Nagpur. [Chapter 1, 2]

MODULE II
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CAPACITY OF PERSONS IN TORTS Capacity is a compendious word used to signify legal ability to sue or liability to be sued. All persons have the capacity to sue and be sued in tort. This however is a general rule and is subject to modification in respect of certain categories of persons. Who cannot sue: the person who cannot sue in a tort due to personal disability include the following persons Convicts: There was a time when in England a person who was sentenced to death or to penal servitude on a charge of felony or treason and whose sentence was in force and unexpired and who was not lawfully at large could not sue for wrongs done to his property because by the Forfeiture Act, 1870, his property vested in the administrator or curator. But this disability was now removed by the Criminal Justice Act, 1948. In India up to 1921, there was punishment of forfeiture of property for certain offences but except in cases of offences under sec.126, 127 and 179 of IPC the same has been abolished. Thus the position is that a convict can sue for torts done to his property and person. Alien Enemies: An alien enemy in England cannot sue in an English court expect under an express license of the Crown. In India about this sec.83 of CPC incorporates the English principle in toto Insolvents: An insolvent is a person whose liabilities exceed his assets. All his property vests in a receiver. For the torts committed against him if the tort relates to an injury exclusively to his property the right of action in this regard passes to the official assignee or receiver who can sue. But in so far as a tort against his person he himself can sue. Married Women: At common law a married women could not sue without her husband being joined as a party. This bar was deleted by the Law Reform (Married Women and Tortfeasors) Act, 1935. As per sec.7 of Married Womens Property Act, 1874 in India, a married woman can sue in tort
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Husband and Wife: In England actions between husband and wife were not possible under common law as they were considered as one person in the eyes of the law. This old rule was abolished by the Law Reform (Husband and Wife) Act, 1962. In India the notion of the legal identity between husband and wife does not apply. In India although the wife cannot sue her husband for personal laws of different communities but she can sue her husband s employer if husband has committed a tort against her during the course of employment. Minors: A minor can sue for any wrong done to him by his next friend. Corporation: A corporation is considered as a person in the eyes of law and can sue for wrongs to its property or business. It cannot sue for personal wrongs for by its very nature, such injuries cannot be inflicted on a corporation e.g. Assault, Battery etc. Foreign State: Foreign state cannot sue in any Indian courts unless such state has been recognized by the Government of India (sec.84 of CPC) Who cannot be Sued Sovereign or King: In English law the immunity of the Crown from the civil liability is based on upon the maxim, The King can do no wrong. The Crown Proceedings Act, 1947 which changed the old rule, thus now crown is liable as an ordinary person and is bound by the principles of vicarious liability. In India as per sec.86 of CPC consent of the Central Government certified in writing by a secretary to the government must be obtained and such a suit would be in name of the state (sec.87). An exception has been made in respect of tenants of immovable property who can sue without such consent directly. Ambassadors: An Ambassador is a representative of a sovereign foreign state. Immunity from action in this regard extends not only to his person but also to commercial transactions, to his family, suit, secretary of legation and other servants and the house where he resides. In India under sec. 86 of CPC an Ambassador be sued except if a consent in writing certified by the secretary to the central government in this behalf.
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Minors: A minor means in law a child who is below 18 years of age in India. A minor is in general liable for his torts in the same manner and to the same extend as an adult. But where knowledge, intention or malice is a necessary ingredient in constituting a tort infancy is a good defence in case he has not attained sufficient maturity of understanding. In Bernard v. Haggis18, it was held that a minor is liable in tort as an adult but the tort must be independent of the contract. In Swarup Kishore v. Goverdhandas19, a minor slapped the plaintiff in his face in the presence of several persons. Rejecting the contention of the defendant i.e. He is an infant the court held that a minor is in general liable for his torts to the same extent as an adult. Lunatic: The same rules of liability as infants applicable to them. Insanity by itself is not a defence in tort. But if a particular tort requires a particular state of mind for instance malice or some specific intent then insanity may be a good defence to disprove the existence of such malice or intent. In Ramangulu v. Mullackal Devasom20, the defendant entered in temple with shoes and T shirts thereby broke the idol of deity. The defendant pleaded insanity as a defence. It was held that the defendant is liable in damages; insanity is not a defence in tort generally. But there are certain exceptions is there when a particular state of mind required than he can very well use the insanity as a defence because he does not know the nature of that act. Drunkard: Drunkenness is not a good defence in the law of tort. Every person is presumed to know consequence of his act. But if the intoxicant is administered against his will of by fraud or by mistake the rule is otherwise and he may not be liable in tort if he is unable to understand what is right or wrong. Corporations: A corporation being a person in the eyes of law is liable vicariously for the torts of its agents or servants acting in the course their employment. It may be thus liable for tort like false
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1863(14) CBNS AIR 1976MB 84 AIR 1975 Ker. 25

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imprisonment, conversion, libel, trespass, or negligence. In T. Pillai v. Muncipal Council 21, the plaintiffs dog was killed by a municipal employee in the course of his employment. Holding the defendant liable it was observed by the court that the corporation is a fictious and legal person having an entity in law distinct from its members and by its very nature can only act through its servants or agents and not in propria persona. A corporation is as much liable in an action on tort as an individual. Trade Unions: Sec.13 of the Indian Trade Unions Act, 1926 provides that a registered trade union shall be a body corporate by the name under which it is registered and shall sue and be sued under that name. JOINT AND SEVERAL TORT- FEASORS Where two or more breaches of duty by different defendants cause the plaintiffs injury the liability of the tort Feasors that is the persons who have committed the torts may independent or joint . In cases where the plaintiff has available to him the option of suing more than one trotfeasor, special rule have been laid down to deal with the possibility of successive actions by the plaintiff and to deal with claims for contribution between defendants. Independent Liability The plaintiff may suffer damage as the result of two entirely separate torts. In such a case the plaintiff has two completely separate causes of action against the two tortfeasors for e.g. in Baker v. Willoughby22, the plaintiff suffered injury to his left leg as a result of the defendants negligence. At a later date the plaintiff had to have the same leg amputated after he had been shot in the leg during the course of an armed robbery. It was held that each tortfeasor was liable for the injury but the plaintiff is only entitled to sue each tortfeasors in respect of damage caused by that tortfeasor. Several Tortfeasors

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AIR 1961 Mad 230 (1970) AC 467

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24

Where tortfeasors act independently to cause the same damage to the plaintiff then these tortfeasors are several tortfeasors. The vital features of this form of liability are that the tortfeasors act independent and their actions cause the same damage to the plaintiff. Each tortfeasor is separately liable in respect of the damage but the plaintiff can only recover damages once. Joint tortfeasors Joint liability exists where two tortfeasors inflict damage on the plaintiff in furtherance of the common design of the tortfeasors. For e.g. in Brooke v. Bool23, the defendant a landlord, let premises to the plaintiff for use as a shop. The defendant remained entitled to enter the premises in the plaintiffs absence to check that the premises where secure. A lodger in the premises informed the defendant that he could smell gas coming from the shop. Both men investigated the shop. The lodger with the consent and encouragement of defendant lit a match. This caused an explosion in which the plaintiffs property was damaged. It was held that defendant was jointly liable for the damages caused by the negligence of the lodger. Joint liability does not only exist in the case of a tort committed in the course of a common design. It also exists in the case where an employer is held to be vicariously liable for the tort committed by his employee. Composite Tortfeasors In India the distinction between joint and independent tortfeasors were not recognized. When two or more persons are responsible for a common damage whether acting independently or jointly they have been termed as composite tortfeasors in India. The liabilities of composite tortfesaors are joint and several. No one of the tortfeasor is allowed to say that there should be apportionment and his liability should be limited to the extent he is fault. For e.g. in KSRTC v. Krishnan24, two passenger buses brushed each other in such a way that the left hand of two passengers travelling in one bus were cut off below the shoulder
23

(1928) 2 KB 578

24

AIR 1981 Kan.11

25

joint. It was held that the drivers are composite tortfeasors and both are jointly and severally liable to pay the compensation. Malfeasance, Misfeasance and Non-Feasence Feasence means doing. The term malfeasance refers to the actual commission of an unlawful act. Misfeasance is the improper performance of something which a person should have done properly. Nonfeasence is the neglect or failure of a person to do what he ought to, particularly to perform a duty owed to the public where by an individual sustains special or particular damage to himself. Generally statutory bodies are not liable for acts of non feasence. They are liable for misfeasance and malfeasance. They were liable for non-feasence in case of failure to repair roads, clock tower, walls etc. Refer Corporation of the Town of Calcutta v. Anderson (1888) Cal.445 (10)

VICARIOUS LIABILITY It is the expression signifies a liability incurred by A to C for Bs conduct or acts. According to Jowitt Dictionary of English Law, when the law holds one person responsible for the misconduct of another although he is himself free from personal blameworthiness or fault we speak of vicarious liability. Basically the idea was that a person should be held responsible for his own fault. This was also asserted by Plato in his laws that a person should be held responsible for his own sins. But in England after the Norman Conquest it was firmly established in the 13 th century that master would be liable for his servants or slaves torts only where there is an express command of the master to the servants wrong. In 17th century this limited form of liability was found inadequate due to rise in commercial transactions. Consequently a new development took place in 1697 when Sir John Holt in the case Tuberville v. Stamp25, held that the master would be liable for his servants tort if he had given his implied command.
25

(1669) 1 Mad 3

26

Basis and Rationale of Vicarious Liability. Two Latin maxims closely related to the principle of vicarious liability are respondent superior and qui facit per alium facit perse. The first maxim means that a principal must answer for the acts of his subordinates and the second explains that he who employs another person to do something does it himself or in other words he who acts through another is deemed to act in person. These maxims form the basis of vicarious liability. One of the unusual features of the doctrine of vicarious liability is that whilst there is general agreement as to the utility of the doctrine, the doctrine has no clear rationale. Some of them are: 1. The employer has control over his employee therefore he is responsible for the acts of his employee. 2. The employer was careless in selecting an employee who was negligent and he must have accept responsibility because by selecting a negligent employee he set in motion the train of events which led to the negligent act of the employee. 3. The employer derives benefit from service of his employee, so it is only right that he takes the burden as well. 4. The employer is in a better position than the employee to compensate the victim of the tort. 5. By imposing liability on the employer the employer is thereby given an incentive to ensure that the event does not occur again and that none of his other employee do the same thing. There are two occasions when a person is held responsible for wrongs committed by others: 1. By Ratification: Ratification is the act adopting a transaction by a person who was not bound by it originally because it was entered into an unauthorized agent. It is an act of confirmation. 2. By Relationship:

27

Master and Servant: The vicarious liability of master for the tort committed by his servant is based on the maxim Respondent Superior which means superior is liable or let the master be liable. A servant is any person employed by another to do work for him on the terms that he, the servant, is subject to control and directions of his employer in respect of the manner in which his work is to be done. In other words an employee is a servant if his superior is in a position to tell him not only what to do but how to do. Two main tests to find out master servant relationship are: a) right to control test and b) organization test. Organization test look the relationship between the organization and employee for e.g. hospital and doctors. As per this test hospital authorities are not liable for the professional negligence of doctor. This rule was held ineffective in the case of Achut Rao v. State of MH26 the court held that the hospital is also liable for the negligent conduct of a doctor. A master may lend his servant to a third party temporarily for some particular work. There are two masters the lender and hirer, the question is who is liable for the act of his servant. Normally the lender but if he succeeded in proving at the time of commission of tort the servant was under control of hirer then he can easily escape from the liability. Course of employment: The fact that one man is in a legal sense the servant of another does not in itself render the master liable for any and every tort committed by this servant. The master will only liable for such torts as are committed by the servant in the course of employment. An act is deemed to be done in the course of employment when the servant executes the orders of master. It may were a) the master has ordered the servant to commit a wrongful act b) the wrong may be due to the servants want of care in carrying out the orders of the master. So a master can be made liable as much for unauthorized acts for the acts he has authorized. The reason is that explained in Barwick v. English Joint Stock Bank 27, in all these cases it may be said that the master has not authorized the act. It is true he has not authorized the particular act but he has put the agent in his place to do that class of acts and he must be answerable for the manner in which the agent has conducted himself in doing the business which it was the act of the master to place to him in.
26

AIR 1996 SC 2377


(1867) 2 Exch 259

27

28

Generally it is very difficult to knew whether the act done by the servant is an unauthorized act and thus outside the course of employment or his conduct is merely an unauthorized mode of doing an authorized act and thus falling within the course of employment. No single rule has been possible to determine the same. When a servant while in the course of the performance of his duties as such commits a fraud, the master would be liable for the same. In Barwick v. English Joint Stock Bank 28 case it was held that it is a settled and undisputed principle of the law of torts that master is answerable for every such wrong for his servant as is committed in the course of employment, though no express command or privity of the master be proved and the wrongful act may not be for the masters benefit. In Loyd v. Grace Smith & co29., the House of Lords held that when a servant is acting in the course of the business the master will be liable even though the servant was acting for his own benefit rather than the benefit of the master. In Morries v. CW30, it was held that if the servant committed a theft of a third persons property which has been bailed to the master, the master could be vicariously made liable for the same. Where a servant having a lawful authority to do some act on behalf of his master makes an erroneous or excessive use of the authority causing loss to the plaintiff, the master will be liable for the same. So held in Poland v. Parr & Sons31

28

Ibid. 1912 AC 716 (1965) 2 All ER 725 (1927) 1 KB 236

29

30

31

29

The doctrine of Common Employment : The above rule was first applied in 1837 in Priestly v. Flower32 developed in 1850 in Hutchinson v. York, New Castle and Berwick Rail co33. The doctrine was that a master was not liable for the negligent harm done by one servant to another fellow servant acting in the course of their common employment. In Priestly v. Flower, the plaintiff who was the defendants servant was injured at his thigh due to breaking down of an overloaded carriage in the charge of another servant of the defendant. Since both the wrongdoer and the injured person were the servants of the same master, the doctrine of common employment was applicable and the master was held not liable. The doctrine was subject to great criticism and therefore it was abolished by the Law Reform (Personal Injuries) Act, 1948 in England. This doctrine of common employment which was abolished in England is still applicable in India although its scope has been made limited by the Employers Liability Act, 1939; The Workmens Compensation Act, 1923; The Employees State Insurance Act, 1948 and Personal Injuries (Compensation Insurance) Act, 1963. These Acts impose liability on the employers to compensate their employees in certain cases. Although the rigor of this doctrine has been minimized to a certain extent by these statutes but it is submitted that the position in India in this regard is unsatisfactory. VICARIOUS LIABILITY OF STATE At common law the king could not be sued in earlier, either for the wrong actually authorized by it or committed by its servants in their course of employment. With the increase in the functions of the state the Crown became one of the largest employers of the labour in the country. Under these circumstances, the rule of immunity for the Crown became highly incompatible with the demands of justice. Thus the position was changed by the Crown Proceedings Act, 1947. Now the Crown is also vicariously liable. In India Article 294 of the Indian Constitution speaks about the liability of the State and Central Government. The art. 294 provides the liability may arise out of any contract or otherwise. The word otherwise suggests that the said liability may arise in respect of tortious acts also. Article 300 provides
32

(1837) 3 M & W 1 (1850) 5 Exch 843

33

30

that the liability of the Union of India or any State will be the same as that of the Dominion of India and the provinces before the commencement of the Constitution. If we examine the liability of the Dominion and the provinces before the commencement of the Constitution, we could see that there the state functions were divided into two categories namely Sovereign and Non-sovereign functions. If the plaintiff suffers injury from the sovereign function of the government he has no remedy in tort against the government. Whereas if the function is non- sovereign he has a remedy in tort. It was so held in P&O Steam Navigation Co. v. Secretary of State 34, in this case a servant of the plaintiff company was talking a horse driven carriage belonging to the company. While the carriage was passing near the government dock yard, certain workmen employed by the government negligently dropped an iron piece on the road. One of the horses was injured thereby. Rejecting the defence of state immunity the court held that action against state was maintainable and awarded damages. The principle in this case has been followed in numerous cases and continues to be the law of land even a century later. The first decision of the Supreme Court regarding the liability of state is that of the case State of Rajasthan v. Vidyawati35. In this case the Rajasthan government was maintained a jeep for the use of the collector of Udaipur. While it was being driven back from a private workshop by a government driver a pedestrian was knocked down and fatally injured. The court awarded damages to the victim. In this case the court rejected the claim of sovereign immunity. Three years later in Kasturi lal v. State of UP36, the Supreme Court modified its approach, it was held that if a tortious act is committed by a public servant and it gives rise to a claim for damages the question to ask is, was the tortious act committed by the public servant in discharge of statutory functions which are referable to and ultimately based on the delegation of the sovereign powers of the state to such public
34

(1861) 5 Bom. HC AIR 1962 SC 933 AIR 1965 SC 1039

35

36

31

servant? If the answer is in affirmative the action for damages for loss caused by such tortious act will not lie. On the other hand if the tortious act has been committed by a public servant in discharge of duties assigned to him not by virtue of the delegation of any sovereign power an action for damages would lie. The course of employment is, in this category of cases an act of the servant who might have been employed by private individuals for the same purpose. Thus the Supreme Court in Kasturilals case accepted the distinction between sovereign and non sovereign functions. The facts of this case is that one Ralia Ram, a bullion merchant and a partner in the firm Kasturilal & Ralia Ram was arrested by a police constable and certain gold and silver were taken from him. The police officers were required under law to keep bullion seized in a separate box in the treasury under lock and key. Instead it was kept in the police malkhana under the charge of a Head Constable, who misappropriated the gold ornaments and fled to Pakistan. Ralia Ram claimed compensation for the loss caused to him by the negligence of police authorities of the state. The Supreme Court held that the state was not liable as police authorities were exercising sovereign functions. In State of MP v. Chirojila 37l, the police made lathi charge on a students procession and a loud speaker, belonging to the plaintiff and being used in procession got damaged. When the owner brought an action for damages it was held by the court that maintaining the law and order including quelling of riot is a sovereign function. The state was held not liable. Transporting of crushed barely for the defence department was considered a non-sovereign function and the government was held liable for the tortious act of its servant. So held in Pushpa v. State of JK38 Refer: Union of India v. Sugrabhai AIR 1969 Bom.13 Satyawati v. Union of India AIR 1967 Del.98 Rooplal v. Union of India AIR 1972 JK 22 Union of India v. Abdul Rahiman AIR 1981 JK 69
37

AIR 1981 MP 95 AIR 1977 NOC 217 (J&K)

38

32

Ram Gulam v. Govt. of UP AIR 19 All 206 State of MP v. Devilal AIR 1970 MP 170 State of UP v. Tulsi Ram AIR 1971 All 162 Union of India v. Savita Sharma AIR 1979 JK 6. In spite of the suggestions made by the Supreme Court in Kasturilal case, the Parliament has not changed the existing bad law with the result that the concerned citizens have been suffering. In such a situation and being dissatisfied with the above anachronistic law, a new line of action under writ jurisdiction has been invoked to render justice and compensate those whose fundamental right to life and personal liberty under article 21 are violated by the wrongful acts of government officials while performing even sovereign functions. The cases of Rudhal Shah v. State of Bihar 39, Sebastien M.Hongary v. Union of India 40, Bhim Singh v. State of JK 41, SAHELI v. Commissioner of Police, Delhi 42, etc. illustrate that the defence of sovereign immunity is not available when there is a violation of fundamental rights under article 21. Thus the present position is that sovereign immunity is subject to the fundamental rights in article 21. When there is a violation of right under art.21 arises there is no such defence as sovereign function available. So the tortious liability of the state is limited only to non sovereign functions regarding the sovereign functions state is liable only if there is a violation of article 21 of Indian Constitution.

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39

AIR 1983 SC 1086 AIR 1984 SC 1026 AIR 1986 SC 494 AIR 1990 SC 513

40

41

42

33

Suggested References:

1. W V H Rogers, Winfield & Jolowicz Tort, 17th Edn-2006, Sweet & Maxwell, London. [ Chapter 21] 2. RFV. Heuston & RA Buckly, Salmond and Heuston on Law of Torts , 20th Edn- 1992, Universal Law Publishers, Delhi. [ Chapters 20,21] 3. Paula Giliker & Silas Beckwith, Tort, 2ndEdn- 2004, Sweet & Maxwell, London. [Chapter 2] 4. DG Cracknell, Obligations: The Law of Torts, 4th Edn- 2003, Old Baily Press, London. [ Chapters 3,4] 5. SP Singh & Indrajith Singh, Law of Torts, 4th Edn 2006, Universal Law Publishers, Delhi. [ Chapters 8,17] 6. B M Gandhi, Law of Torts, EBC, Lucknow, 2002. [ Chapters 4,6] 7. R K Bangia, Law of Torts, 8th Edn- 2005, Allahabad Law Agency, Haryana. [Chapters 3,4] 8. Ratanlal & Dhirajlal, The Law of Torts, 24th Edn-2004, Wadhwa, Nagpur. [Chapter 3]

34

MODULE III DEFENCES When the plaintiff brings an action against the defendant for a particular tort providing the existence of all essentials of that tort, the defendant would be liable for the same. The defendant may however even in such a case avoid his liability by taking the plea of some defence. They are: 1. Volenti non fit injuria: No injury is done to one who consents. This maxim had its origin in the process by which Roman law validated the act of a free citizen selling himself into slavery. In the case plaintiff voluntarily agrees to suffer some harm he is not allowed to complain for that and his consent serves as a good defence against him. No men can enforce a right which he has voluntarily waived or abandoned. When you invite somebody to your house you cannot sue him for trespass, nor can you sue the surgeon after submitting to a surgerical operation because you have expressly consented to that acts. Similarly no action for defamation can be brought by a person who agrees to the publication of a matter defamatory of himself. For the defence of consent to be available, the act causing the harm must not go beyond the limit of what has been consented. For e.g. a player in a game of hockey has no right of action if he is hit while the game is being lawfully played. But if there is a deliberate injury caused by another player, the defence of volenti non fit injuria cannot be pleaded. Consent to suffer harm may be express or implied. In Hall v. Brookland Auto Racing Club43, the plaintiff was a spectator at a motor car race being held at Brookland on a track owned by the defendant. During the race there was a collision between two cars one of which was thrown among the spectators thereby injuring the plaintiff. It was held that the plaintiff impliedly took the risk of such injury the danger being inherent in the sport which any spectator could foresee the defendant was not liable.

43

(1933) 1 KB 205

35

In another case while the driver was taking the jeep for filling petrol in the tank, two strangers took lift in the jeep. Suddenly one of the bolts fixing the right front wheel to the axle gave way toppling the jeep. The two strangers were thrown out and sustained injury and one of them died as a result of it. It was held that neither the driver nor the owner of the vehicle could be made liable because the strangers had voluntarily got into the jeep and as such the principle of volenti non fit injuria was applicable to this case. So held in Padmavati v. Duggainaka44 The consent must be free : for the defence to be available, it is necessary to show that the plaintiffs consent to the act done by the defendant was free. If the consent of the plaintiff was obtained by fraud or under the compulsion or under some mistaken impression such consent does not serve as a good defence. The mere knowledge of risk does not imply assent. For the application of this defence the following two points must be proved: 1. the plaintiff known that the risk is there 2. He knowing the same agreed to suffer the harm. If only first of these points present i.e. There is only the knowledge of the risk, it is no defence before the maxim volenti non fit injuria. This means mere knowledge of risk is not sufficient to apply this maxim. Exceptions: The maxim cannot apply a) where there is no express or implied consent b) where there is a consent for an illegal act e.g. Boxing with bare fists c) where the consent is not free and full d) where the consent given is to make a breach of a statutory duty e) where there is a scientier only no volens f) where the defendant is himself negligent or undertakes unnecessary risks g) Rescue cases: when the plaintiff voluntarily encounters a risk to rescue somebody from an imminent danger created by the wrongful act of the defendant he cannot be met with the defence of volenti no fit injuria. For e.g. in Haynes v. Harwood, defendants servant left a two horse van unattended in attended in a street. A boy throws a stone on the horses and they bolted causing grave danger to a women and children on the road. A police constable who was on duty inside a nearby police station on seeing the same managed to stop the horses but in doing so he himself suffered some personal injuries. It being a rescue case court rejected the defence of consent.
44

(1975)1 Kan.LJ 93

36

2. ACT GOD Act of god in common parlance means any act of nature for example wind, frost, flood, rainfall etc. But in law it means an unprecedented or extraordinary act of nature which cannot reasonably be expected or anticipated. According to Pollock it is an operation of natural forces so unexpected that no human foresight of skill could reasonably be expected to anticipate it. For e.g. during a storm in Calcutta a cinema advertising board fell down from the defendants premises and injured the plaintiff. The defendant contended that the fall of the banner was caused by a storm of unusual severity. It was however found that such storms of considerable severity usually come in the town of Calcutta during the monsoon season. Thus the Calcutta High Court held that such a storm cannot be said to be so unexpected that no human foresight could reasonably be expected to anticipate it and cannot be regarded as vis major or act of god. So the defendants held liable. The case in point is MN Mukherjee v. Mathurdas Chaturbhuj45. Since act of god is a good defence for non liability, it is necessary that such an event could not have been prevented by reasonable care on the part of the defendant. In other words before an act of god can be admitted as an excuse, the defendant must himself have done all that was bound to do. In Lallu v, Fazl Haq46, the defendant allowed rainwater to collect in the materials and debris of his fallen house which caused injury to an adjoining wall. It was held by the court that the failure of the defendant to take care that the rain water did not collect in such a way as to damage the wall of their neighbor was responsible for the damage suffered by the plaintiff. 3. INEVITABLE ACCIDENT An inevitable accident or unavoidable accident is that which could not possibly be prevented by the exercise of ordinary care, caution and skill. As observed by Green Mr. an accident is one out of the ordinary course of things something so unusual as not to be looked for by a person of ordinary prudence. If
45

(1945) 80 CLJ 90 AIR 1919 Oudh 121

46

37

a man carries fire arms or drives a horse his duty is merely to use reasonable care not to do harm to others thereby and notwithstanding the use of such care accident happens he may plead that it was due to inevitable accident. For e.g. In Stanly v. Powell, the plaintiff and the defendant who were members of a shooting party went for pheasant shooting. The defendant fired at a pheasant but the shot from his gun glanced off an oak tree and injured the plaintiff. It was held that the injury was accidental and defendant was not liable. In Nitro - Glycerine case47, the defendants a firm of carriers were given a wooden case for being carried from one place to another. The contents of the box were not known. Finding some leakage in box the defendants took the box to their office building to examine. While the box was being opened the nitroglycerine in the box exploded and the office building belonging to the plaintiff was damaged. It was held that since the defendants could not reasonably suspect that the box contained nitro-glycerin they were not liable for the damage caused by the accident. All the cases of inevitable accident may be divided into two category a) those which are occasioned by the elementary forces of nature unconnected with the agency of man or other cause and b) those which have their origin either in the whole or in part in the agency of man, whether in acts of commission or omission, no feasence or of misfeasance or in any other causes independent of the agency of natural forces. The term act of god is applicable to the former class. 4. NECESSITY An act causing damage, if done under necessity to prevent a greater evil is not actionable even though harm was caused intentionally. For e.g. throwing goods overboard a ship to lightens it for saving the ship or persons on board the ship or pulling down a house to stop a further spreading of fire. In Leigh v. Gladstone48, forcible feeding of a hunger striking prisoner to save her life was held t be a good defence to an action for battery. In Cope v. Sharpe49, the defendant entered the plaintiffs land to prevent spread of
47

(1872) 15 Wallace 524 (1909) 26 TCR 139

48

38

fire to the adjoining land over which the defendants master had shooting rights. It was held that defence of necessity is available so the defendant is not liable. 5. PRIVATE DEFENCE It is human instinct to repel force by force and this natural instinct has got judicial as well as statutory recognition. The law permits use of reasonable force to protect ones person or property. If the defendant uses the force which is necessary for self defence he will not be liable for the harm caused thereby. The use of force is justified only for the purpose of defence. What is reasonable force depends on the facts and circumstances of each case. The underlying test is that the force is used is not reasonable if it either a) not in proportion to the apparent urgency of the situation or b) there is no necessity for the use of force. E.g. A would not be justified in using force against B merely because he thinks that B would attack him someday nor can the force be justified by way of retaliation after the attack already over. According to Pollock, Winfield and Clerk and Lindsell, the right of private defence for the protection of person can be extended to the protection of his spouse, family members and sometimes to his servants also. Every person is entitled to protect his property whether movable or immovable and can use reasonable force in such protection. But a person will be liable if he uses unreasonable force or takes unreasonable measures in protecting his property. For e.g. In Bird v. Holbrook50, the defendant had put up spring guns in his garden without fixing any notice about the same and a trespasser was seriously injured by its automatic discharge. It was held that the plaintiff was entitled to recover compensation as the force used here was greater than that the occasion demanded. Similarly in Ramanuja M v. M. Gangan51, the defendant, a land owner had laid some live electric wire on his land, the plaintiff while go through this land received a shock and sustained injuries. The defendant had given no visible warning about such wire. He was therefore held liable for the injuries caused to the plaintiff.
49

(1891) 1 KB 496 (1828) Bing 628 AIR 1984 Mad. 103

50

51

39

6. NOVUS ACTUS INTERVENIENS This is a good defence to tortious liability. This means it is not the defendant act but by the act of somebody else the plaintiff caused the injury. If the defendant successfully proves that this fact, then this defence will work and he can easily escape from the liability though he committed some acts. In Singleton Abbey v. Paludina52, three ships P, SA and S were lying in anchor in the same sea channel at one time. The P by her negligence, dragged her anchors and fell upon the SA which in turn struck against S and cast her also a drift. Later the S maneuvering in consequence of collision came near the SA and was struck by her propeller. S was sunk and that propeller of SA was damaged. An action was brought by the owners of SA against P claiming damages for the loss of her propeller, but the suit was dismissed on the ground that the damage was too remote consequence of the defendants act. Held the Ps action had caused the occasion for the damage but not directly caused it, for it was proved that S in maneuvering was free from blame. 7. Contributory negligence A person injured by the negligence of another cannot complain if he too was negligent and thus contributed to the causing of damage to himself. In other words when the plaintiff by his own want of care contributes to the damage caused by the negligence or wrongful conduct of the defendant he is considered to be guilty of contributory negligence. Lord Halsbury as stated that the rule of contributory negligence is based on the maxim in pari delicto potior est condition defendants which means where both parties are equally to blame neither can hold the other liable. The rule of contributory negligence was demonstrated for the first time in Butterfield v. Forrester53, in this case the defendant for the purpose of making some repairs to his house wrongfully obstructed a part of the highway by putting a pole across it. The plaintiff, who was riding on his horse very violenently on the road in the evening collided against the pole and was injured. It was also found as a matter of fact that there were sufficient light and the pole was
52

1927 AC 16 (1809) II East 60

53

40

visible from a distance of 1000 yards. The court held that the plaintiff had no cause of action against the defendant as he himself could have avoided the accident by exercising due care. This rule was caused a great hardship to the plaintiff because he may lose an action for a slight negligence on his part even if the defendants negligence was the main cause of damage to the plaintiff. Thus in Davis v. Mann54, the last opportunity rule was established. In this case the plaintiff left his donkey with its forelegs tied in a narrow public street. The defendant coming with his wagon at a smart pace negligently ran over and killed the donkey. The court held that the defendant liable because he had the last opportunity to avoid the accident by the exercise of ordinary care i.e. by going at such a pace as would be likely to avoid the mischief. Because of the uncertainty in the last opportunity rule the Law Reforms (Contributory Negligence) Act was passed in 1945. As per this Act whenever both the parties are negligent and they have contributed to some damage the amount of compensation will be apportioned as between them according to the degree of their fault. In India there is no central legislation corresponding to the above said Act. But the Kerala Torts (Miscellaneous Provisions) Act, 1976 contain a provision for apportionment (sec.8). Though such a legislation is absent in India the principle of apportionment was applicable in India. For e.g. in Vidyadevi v.MP SRTC55, a motor cyclist negligently dashed against a bus and was killed in the accident. The bus driver was also found negligent in not averting the possible collision. The MP High Court stated that between the deceased motor cyclist and the bus driver, the blame was in the proportion of two third and one third respectively. The court thus awarded the damages to the plaintiff to the extent one third of the amount he would have been entitled to if the deceased were not negligent. Refer: Maya Mukhrejee v. Orissa CIS ltd, ARI 1976 Ori.223 Rehna v AMTS AIR 1976 Guj.37
54

(1882) 10 M and W 546 AIR 1975 MP 99

55

41

Oriental fire & General Insurance co. v. Manjit kaur AIR 1983 Cal.165

8. STATUTORY AUTHORITY The damage resulting from an act, which the legislature authorizes or directs to be done is not actionable even though it would otherwise be a tort. When an act is done under the authority of an Act it is complete defence and the injured party has no remedy except for claiming such compensation as may have been provided by the statue. Immunity under statutory authority is not only for those harm which is obvious, but also be some incidental to the exercise of such authority. Therefore if a railway line is constructed there may be interference with private land. When the trains are run, there may also be some incidental harm due to noise, vibrations, smoke etc. no action can lie either for interference with the land or for incidental harm except for payment of such compensation which the Act itself may have provided. The statutes may give absolute or conditional authority for the doing of an act. In the former case, even though nuisance or some other harm necessarily results, there is no liability for the same. When the authority given by the Statute is conditional, it means that the act authorized can be done provided the same is possible without causing nuisance or some other harm. Such a condition may be express or implied. 9. JUDICIAL OR QUASI JUDICIAL ACTS When a judge or administrator of a quasi judicial authority acts within jurisdiction no action lies for acts done or words spoken by a judge in the exercise of his judicial office, although his motive is malicious and the acts or words are not done or spoken in the honest excercise of his office. The same rule was also following in India. See Girijashanker v. Goplji56 10. PARENTAL AND QUASI PARENTAL AUTHORITY

56

ILR 1906 Bom. 241


42

Parents are the natural guardians of their children and therefore in a position of authority over their children. It is the duty of a parent to maintain his child and a parent has a right to care, custody, control, correction and chastisement of his child. Similarly the persons who stand in loco parentis can also administer reasonable chastisement to the child for correcting what is evil in him. In India the same rule was accepted. See Sankunni v. Swaminatha57. But recently because of the increase in administering cruel punishments the purpose of this immunity is become in dilemma. 11. TRIFLES

De minimis non curat lex is a Latin maxim which means the law does not concern itself with trifles. A court of law will not take notice of trifling immaterial or an insignificant matter and will at once dismiss the suit, unless it discloses peculiar circumstances such as the trail of a right or involvement of some personal character. E.g. To dip your pen into anothers ink bottle is theft and rest your arm on another compound wall is a trespass to property. 12. MISTAKE

Mistake is not a valid defence in law of tort. It was explained in the case of Biharilal Kunjilal v. Angirabai58

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57

1922 ILR Mad 42 AIR 1948 Nag.118


43

58

Suggested References:

1. W V H Rogers, Winfield & Jolowicz Tort, 17th Edn-2006, Sweet & Maxwell, London. [ Chapter 25] 2. RFV. Heuston & RA Buckly, Salmond and Heuston on Law of Torts , 20th Edn- 1992, Universal Law Publishers, Delhi. [ Chapter 22] 3. Vivienne Harpwood, Principles of Tort Law, 4th Edn- 2000, Cavendish Publishing Limited, London. [ Chapter 20] 4. SP Singh & Indrajith Singh, Law of Torts, 4th Edn 2006, Universal Law Publishers, Delhi. [ Chapter 5] 5. B M Gandhi, Law of Torts, EBC, Lucknow, 2002. [ Chapter 5] 6. R K Bangia, Law of Torts, 8th Edn- 2005, Allahabad Law Agency, Haryana. [Chapters 2,12] 7. Ratanlal & Dhirajlal, The Law of Torts, 24th Edn-2004, Wadhwa, Nagpur. [Chapter 5]

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MODULE IV

TRESPASS Tort of trespass is one of the oldest torts in English law. The basis of this tort is that any direct invasion of protected interest from a positive act was actionable subject to justification. If the invasion was indirect though foreseeable or if the invasion was from an omission as distinguished from a positive act, there could be no liability in trespass though the wrongdoer might have been liable in some other form of action. Recent development has led to further limitation. If the invasion is unintended though direct resulting from a positive act, there will still be no liability if the conduct of the defendant was reasonable or even if it was unreasonable if the invasion was an unforeseeable consequence. See Flower v. Lanning59 and Letang v Cooper60 In modern law the trespass takes three forms: trespass to person, to land and to goods. All three torts have the same characteristics, they must be committed intentionally, cause direct and immediate harm and are actionable per se, i.e. without proof of damages. TRESPASS TO PERSON BATTERY

59

(1959) 1 QB 426 (1965) 1 QB 232


45

60

According to Winfield a battery is the intentional and direct application of force to another. In Eisener v. Maxwell61 case the term defined as the application of force to the person of another without lawful justification amounts to the wrong of battery. This is however trivial the amount or nature of the force may be and even though it neither does nor is intended nor is likely or able to do any manner of him. So even to touch a person without his consent or some other lawful reason is actionable. No anger or hostility is essential to liability; an unwanted kiss may be a battery. Thus intentionally to bring any material object into contact with anothers person is sufficient application of force to constitute a battery for example to throw water upon him, or to pull a chair from under him whereby he falls to the ground or to apply a tonerinse to his scalp. It is also probably a battery to project heat, light, noise or vapours to cause physical injury or personal discomfort. Thus to constitute a tort of battery two things are essential, they are: 1. Intention: the intention which is required in battery is not the intention to hurt the claimant but the intention to apply physical force. For e.g. In Potts v. North West RHA 62, it was held that a surgeon was performs an operation or other medical procedure without the consent of the patient commits tort of battery though in such cases there may be an intention of the well being of the patient. Even if the defendant is intended to injure someone other than the claimant, this could be still amount to battery if as a consequence the claimant suffers some application of force. In Livingstone v. Minister of Defence63, the claimant succeeded in battery when he was hit by a bullet intended by a soldier for someone else. 2. Application of Force: The application of force against another person without lawful justification is another necessary ingredient of battery. Any physical contact with the body of or his clothing of a claimant

61

(1951) 1 D LR 816 1983 (1984) NI 356 NICA

62

63

46

is sufficient to amount to force. If there is a forcible contact no damage is necessary for trespass is actionable perse. Where there is consent to the contact there is no battery and the same is true where the claimant though not in fact consenting so conducts himself as to lead the defendant reasonably to believe that consent exists. So held in O Brien v. Gunard64.

ASSAULT Assault is putting a person in fear of an immediate battery. It is an unlawful attempt to do a bodily hurt to another coupled with the present ability and intention to do the act. According to Winfield assault is an act of the defendant which causes the claimant reasonable apprehension of the infliction of a battery on him by the defendant. Probably mere words do not constitute an assault however insulting or even menancing, the intent to do violence must be expressed in threatening acts not merely in threatening speech. Thus to shake ones fist in a mans face is an assault, to shake it at a man who by his distance from the scene of action is inaccessible to such violence is not an assault. In Stephens v Mayors65, the defendant advancing with clenched fist upon the claimant at a parish meeting, was stopped by churchwarden who sat next by one to the claimant. The court held that it amount to an assault. It has been held that immediate intention to carry out his threat into effect is the most important factor. Physical touching or impact is not needed in the case of assault. The touching which is needed is that there must be reasonable apprehension of immediate injury or violence to the plaintiff. A conditional threat is no assault nor is a mere verbal threat unless there is an immediate intention and a present ability

64

28 NC 226 Mass. 1891 (1840) 4 C& P 349

65

47

to do the act. An Indian case on this point is Bavisetti V S Rao v. Nandipati66, in this case the plaintiff was in arrears of land revenue amounting to rs.11.60. The village munsiff vent to his residence to collect the land revenue. On demand the plaintiff pleaded his inability to pay. He then told the plaintiff that his ear rings would be detrained for default in the payment of land revenue and called a gold smith to take out plaintiffs ear rings. On arrival of the gold smith another person paid off the amount of arrears. The court held that it was not the case of assault since after the arrival of gold smith the defendant said nothing and did nothing and that the threat of use of force by the gold smith to the plaintiff was too remote a possibility to have put the plaintiff in fear of immediate or instant violence. But there need be no actual intention or power to use violence for it is enough if the plaintiff on reasonable grounds believes that he is in danger of it. Thus it is actionable to point a gun at a man in a threatening manner even though to the knowledge of the defendant but not to the plaintiff it is unloaded. So held in R v. St. George67 case. Does battery include assault? Many authorities are of the opinion that battery includes assault, but it is not always true. Fear or reasonable apprehension of force as harm on the part of plaintiff is a necessary ingredient of assault. So whenever fear or reasonable apprehension of force or harm on the part of the plaintiff results in battery then assault is included in the battery. But where battery is committed without fear or apprehension of force or harm on the part of the plaintiff then battery does not include assault. For e.g. A blow from behind inflicted by an unseen assailant. In such a case battery does not include assault.

DEFENCES AGAINST ASSAULT AND BATTERY

66

AIR 1964 AP 382 9 C & P 433

67

48

Expulsion of trespass: when a person enters upon the property of another with force without permission and refuses to go out quietly the owner is permitted to use force as may be reasonably necessary but if the trespasser enters quietly the owner must request him to retire before using force. Lawful correction: Assault or battery may be justified on the ground that it was done in exercise of parental authority i.e. for the correction of a pupil, child, apprentice or a soldier. Retaking of goods: when a person wrongfully takes the goods out f the possession of rightful owner or any other person authorized on his behalf may first request the wrong doer to deliver the property and if he refuses the owner or his authorized agent may use reasonable force as necessary. Preservation of pubic peace: if any person disturbs a public meeting, a lawful game or a public worship he may be lawfully removed. Statutory Authority: an assault may be justified on the ground that it was done in serving legal process or searching any premises under any law. MAYHEM (MAIM) It is a type of battery and includes all the essential ingredients of battery. The only difference between the two lies in the kind of injuries. If the bodily injury is such whereby a person is weakened in fighting or in defending himself or to annoy his adversary then it is called Mayhem. All other injuries including least touching would amount to battery. Thus if as a result of battery a person is deprived of a bodily member useful in a fight the tort is called mayhem. In Hurst v. Picture Theaters Ltd68, where a man was under a mistaken belief forcibly turned out from a cinema show. It was held by the court that mayhem is a bodily injury which deprives a man of the use of any organ or any sense which can be of use in fighting or by loss of which he is generally and permanently weakened but the bodily injury is not a mayhem merely because it is a disfigurement.

68

(1915) 1 KB 1

49

Thus the loss of feet, hands, legs, finger or even castrating a person would give rise to an action for mayhem while cutting of ears, or the nose would amount to disfigurement and not the loss of fighting limb therefore gives rise only to an action for battery. Heavier damages would be awarded for mayhem than for battery. FALSE IMPRISONMENT The wrong of false imprisonment consists in the act of arresting or imprisoning any person without lawful justification or otherwise preventing him without lawful justification from exercising his right of leaving the place in which he is. It may also be committed by continuing a lawful imprisonment longer than is justifiable. But the essence of this tort is the imprisonment of someone who is otherwise free. To constitute this wrong two things are necessary: 1. The total restraint of the liberty of a person : the detention of a person may be either a) actual that is physical e.g. laying hands upon a person or b) constructive i.e. by mere show of authority e.g. By an officer telling anyone that he is wanted and making him accompany. It is enough that the plaintiff has been in any manner completely deprived of his personal liberty for any time however short. Knowledge of restraint: it has been held that in the case of Meering V. Graham White Aviation Co69., that the tort of false of imprisonment can be committed even if the plaintiff does not know that he is being detained. In this case the plaintiff suspected of having stolen a key of varnish from the shop of his employer, the defendant in this case. His employer asked the plaintiff to go with their policemen to the companys office. On arrival of the companys office he was asked to wait in the waiting room while the two policemen remained in the neighborhood. In an action for the false imprisonment, the defendants were held liable. Lord Atkin said, it appears to me that a person could be imprisoned without his knowing it. I think a person can be imprisoned while he is a sleep, while he is in a state of drunkenness, while he is unconscious and while he is a lunatic.
69

(1920) 122 LT 44

50

Restraint must be total: the restraint imposed upon the claimant must be total restraint to amount to false imprisonment so if there was a reasonable escape route there will be no false imprisonment. So held in Bird v. Jones, in this case the defendant wrongfully enclosed a part of the public foot way on a bridge, put seats in it for the use of spectators to view the boat race in the river. The plaintiff insisted on passing along this part of the enclosure. The defendant refused to let him go forward but told him that he might go back into the carriage way and cross to the other side of the bridge if he wished. He declined to do so and remained in the enclosure for 30 minutes. On being sued, it was held by the court that the plaintiffs movement was not restrained in every direction. Who is liable: a person may be liable for false imprisonment not only when he directly arrests or detains the plaintiff but also when he was active in promoting or causing the arrest or detention. Apart from cases where liability can be fastened vicariously when the wrong is committed be servant or agent, liability can also arise when arrest or detention is procured through the instrumentality of some officer. 2. Detention must be unlawful : the second essential ingredient of this tort is that the total restraint or detention should be unlawful or without any lawful justification. See Rudhul Shah V. State of Bihar70 Bhim Singh v. State of JK71 DEFENCES Reasonable conditions: it does not amount to false imprisonment to prevent a man from leaving our premises because he has not fulfilled reasonable condition subject to which he is entered. It was so held in

70

AIR 1983 SC 1086 AIR 1986 SC 494


51

71

Robinson v. Balmain Ferry Co. Ltd72; in this case the plaintiff paid a penny for entry to the defendants wharf from which he proposed to cross the river by one of the defendants boat. A boat had just gone and there was no boat for another 20 minutes. The plaintiff wished to leave the wharf when he was directed to go through the wharfs exists. The rules as to exist required payment of the penny. The plaintiff refused to pay the penny and therefore defendant declined to let him leave the wharf unless he did pay. It was held that there was no tort of false imprisonment. Judicial authority: Sec.1 of the Indian Judicial Officers Protection Act, 1850 provides the immunity to judicial officers. Arrest by Police : Arrest on a complaint before judicial officer

REMEDIES Self-Help: anyone can use self-help in order to escape. Habeas corpus: a person who has been wrongfully detained or any person on his behalf may move an application under Article 32 or 226 of the Indian Constitution to the Supreme Court or High Court respectively for the issue of writ of habeas corpus. This remedy is for the release of a person who has been wrongfully detained. Action for damages: this tort is a part of trespass so no damage or loss is to be proved for getting compensation. So the damages may be claimed not only for injury to the liberty but also for disgrace, humiliation, indignity and mental suffering. TRESPASS TO LAND
72

1910 AC 295

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Trespass to land means an unjustifiable interference with the possession of land. Trespass is therefore a wrong against possession rather than ownership. Any interference with the possession of land without justification signifies trespass to land. The tort of trespass to land consists in the act of a) entering upon the land in possession of the plaintiff b) remaining upon such land c) placing or projecting any object upon it- in each case without lawful justification. Entry: the commonest form of trespass consists in a personal entry by the defendant or by some other person or animal through his procurement into land or buildings occupied by the plaintiff. The slightest crossing of the boundary is sufficient e.g. to put ones hand through window or to sit upon a fence. Nor indeed does it seem essential that there should be any crossing of the boundary at all provided that there is some physical contact with the plaintiffs property. There may be sufficient physical interference if matter is deliberately placed where natural forces will carry it to the land of the plaintiff e.g. If oil is jettisoned in such circumstances that wind and wave must carry it to the foreshore of the plaintiff. In Municipal Board of Kanuj v. Manoharlal 73, it was observed that not only entry on the land but also above the surface of the earth and entry into the lower regions of the land will constitute entry. Trespass by remaining on land: Even a person who has lawfully entered on land in the possession of another commits a trespass if he remains there after his right of entry has ceased. In Timothy v. Simpson74, a customer who entered a shop insisted that he should have the goods at the price marked over it. As the wrong price marking was made thereon the shop keeper refused to sell at that price. As he insisted to purchase he was told to leave the shop with which he did not comply. This made his right of entry come to an end and he was a trespasser as he was there against the will of the owner. Trespass by placing things on land: The person may commit trespass not only by entering himself on the plaintiffs property or land unlawfully but also by placing things, objects and materials on the plaintiffs land or causing them to enter upon the plaintiffs land.
73

(1952) 2 All 1362 (1835) 1 Cr MR 757

74

53

Trespass in the Air space: This was governed by the principle enshrined in the maxim cujust est solum ejus est usque ad coelume, it means whose is the soil his is also that which is above it. This maxim dose not mean many ownership over the infinite space, it means only that portion of air space which is capable of being reduced into private ownership. Continuing trespass: That trespass by way of personal entry is a continuing injury, lasting as long as the personal presence of the wrongdoer and giving rise to actions de die in diem so long as it lasts, is sufficiently obvious. The continuance of trespass is considered in law a separate trespass on each day. If a man builds a wall or throws a heap of stones on his neighbors land, it will be a continuing trespass so long as it is there. Here the right to sue will continue from day to day till the encumbrance is removed. An action may be initiated for this original trespass in placing the encumbrances on his land and another action for continuing the things so erected. TRESPASS ABINITIO The basic principle is that when a person enters certain premises under the authority given by law and after having entered here he abuses that authority it will be considered as a trespass ab initio. This means that law considers a person as trespasser from the very beginning even if he had entered lawfully there under the presumption that he had gone there with the wrongful purpose in mind. In Six Carpenters case75, where these carpenters entered an inn and ordered for some wine and bread. After having wine and bread they refused to pay. The court held that when entry authority or license is given to any one by law and he doth abuse it he shall be a trespasser ab initio but the defendants were not liable as their non-payment did not constitute a trespass. Limitation of the rule of trespass ab initio
a. The rule applies only to acts done in pursuance of an entry authority or license given to anyone by the law.

75

(1610) Co. Ref.146

54

b. The rule applies only when the subsequent abuse amounts to a positive wrongful act as opposed to a mere omission or non feasence c. A lawful entry does not become by abuse a trespass ab initio unless the abuse has reference to and so takes away the entire grounds or reason of entry.

REMEDIES Ejection: the plaintiff can by the use of reasonable force remove the trespass. Self help: the plaintiff has the right to remove the things placed in his property. Action for recovery of land: this right is conferred under sec.6 of the Specific Relief Act, 1963 Damages: this is a tort of actionable per se Distress damage feasent: it is a remedy which authorizes a person in possession of land to seize the trespassing cattle or other chattel and detain them until compensation has been paid to him for the damage done by the cattle or chattels. Any chattle animate or inanimate can be seized or detained. DEFENCES License Grant: it is by way of an absolute right. Retaking of goods: entry of another land for taking of ones on good s or chattels, if it is made peaceably is justified by inference of an implied license. Necessity Prescription: It means as the effect of lapse of time in creating and destroying rights. In these cases the plaintiff is prevented to sue against the defendant by the law of limitation.
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Abatement of nuisance Execution of legal process Statutory authority TRESPASS TO GOODS Trespass to goods means direct and wrongful interference with the plaintiffs possession of goods. The interference with the possession of goods may be seizure or removal or by direct act causing damage to the goods. According to Salmond the tort or trespass to goods consists in committing without lawful justification any act of direct physical interference with the goods in possession of another person. Thus it is trespass to take away goods or to do willful damage to them. This tort can commit against an animal also e.g. It is a trespass to beat a dog or to shoot pigeons. It was held in Wright v. Ramscot76 and Hamp v. Darby77. The essential elements of this tort is that a) the plaintiff must have at the time of trespass, the present possession of goods, either actual or constructive or he must have a legal right to immediate possession b) the possession must have been disturbed by the defendant without lawful justification on his part.

DEFENCES Defence of ones self Defence of property Defendant rightful claim over the goods
76

(1667) 1 WMS Sand 84 (1948) 2 KB 311

77

56

Defence of ones right Due to the process of law Re - caption of goods Inevitable accident REMEDIES Damages: it is a tort of actionable perse i.e. actionable without proof of any damage. Re delivery: the plaintiff can claim compensation and also redelivery of the goods.

**************************************

Suggested References:

1. W V H Rogers, Winfield & Jolowicz Tort, 17th Edn-2006, Sweet & Maxwell, London. [ Chapter 4] 2. RFV. Heuston & RA Buckly, Salmond and Heuston on Law of Torts , 20th Edn- 1992, Universal Law Publishers, Delhi. [ Chapters 4,7]

57

3. Vivienne Harpwood, Principles of Tort Law, 4th Edn- 2000, Cavendish Publishing Limited, London. [ Chapters 11,13,17] 4. Paula Giliker & Silas Beckwith, Tort, 2ndEdn- 2004, Sweet & Maxwell, London. [Chapter 11]

5. SP Singh & Indrajith Singh, Law of Torts, 4th Edn 2006, Universal Law Publishers, Delhi. [ Chapters 9-11] 6. B M Gandhi, Law of Torts, EBC, Lucknow, 2002. [ Chapters 9,13,14] 7. R K Bangia, Law of Torts, 8th Edn- 2005, Allahabad Law Agency, Haryana. [Chapters 7,17, 18] 8. Ratanlal & Dhirajlal, The Law of Torts, 24th Edn-2004, Wadhwa, Nagpur. [Chapters 11, 15, 16]

MODULE V NUISANCE Nuisance as a tort means an unlawful interference with a persons use or enjoyment of land or some right over or in connection with it. Acts interfering with comfort, health, safety are examples of it. The interference may be any way by noise, vibration, heat, smoke, smell, fumes, water, gas, electricity, excavation, or disease producing germs. It has been defined as anything done to hurt or annoyance of the lands, tenements or hereditamant of another and not amounting to a trespass.
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The word nuisance has been derived from the French word nuire and Latin word nocere or nocumentum which in its legal sense means annoyance or harm and indeed the element of unlawful annoyance is the only thing common to all nuisances. There are three main types of nuisances they are public nuisance, private and statutory nuisance. Public nuisance Public or common nuisance is a criminal offence. It materially affects the reasonable comfort and convenience of life of the people in general or a class of persons who come within the sphere or neighborhood of its operation. Section 268 of the Indian Penal Code provides that a person is guilty of public nuisance who does any act or is guilty of an illegal omission, which causes any common injury, danger or annoyance to the public or the people in general who dwell or occupy property in the vicinity or which must necessarily cause, injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. For e.g. throwing fireworks in the street or in a public park or obstructing public high ways. The offender may be punished under criminal law. When from such act there is some special injury to an individual, different from what is suffered by the public in general he may institute civil proceedings for damages against the offender or wrongdoer. Thus a public nuisance may become private nuisance when there is some special damage or injury to a person. For e.g. In Solatu v. De Held78 , there was a Roman Catholic Chapel, the chapels bell was rung at all hours of day and night. The plaintiff resided next door to the chapel. All the people of the vicinity were annoyed by the sound of the bell but the plaintiff being at next door was very much disturbed. It was held by the court that it was a public nuisance. Since it proved particularly obnoxious to the plaintiff and satisfied the requirements for a suit by a private individual for nuisance and the plaintiff was entitled to an injunction. But where a public nuisance does not cause any special damage or particular injury an individual being annoyed like others cannot file a civil suit. Statutory nuisance
78

( 1851) 2 Sim NS 133

59

Every statutory nuisance is a criminal offence created by statute. Certain statutory nuisance are defined in Part III of the Environmental Protection Act, 1990 of UK which gives wide powers to magistrates court and in certain circumstances to the High Court to grant orders putting an end to anti-social conduct amounting to a nuisance. Private nuisance or Tort of Nuisance Private nuisance may be described as unlawful interference with a persons use or enjoyment of land or some right over or in connection with it. Generally the essence of nuisance is a condition or activity which is either continuous or recurrent and unduly interferes with the use or enjoyment of land. To constitute the tort of nuisance the following essentials are required to be proved: 1. Unreasonable interference: interference may cause damage to the plaintiffs property or may cause personal discomfort to the plaintiff in the enjoyment of property. Every interference is not a nuisance. To constitute nuisance, the inference should be unreasonable. What interference is unreasonable varies according to different localities and instances. It was stated in Struger v. Bridman, what would be a nuisance in Belgrade square would not necessary be so in Bremondsey. For the purpose of nuisance it has to be seen as to what is reasonable according to the ordinary usages of the mankind living in society or more correctly in particular society. In Andreae v. Selfridge & Co79. it has been held that anything which is not reasonable according to the ordinary usages of mankind living in society or more correctly in particular society can be called unreasonable. In Radhey Shyam v. Gur Prasad80, the plaintiff filed a suit against the defendant and others for a permanent injunction to restrain them from installing and running a flour mill in their premises. It was alleged that the said mill would cause nuisance to the plaintiffs who were occupying the first floor portion of the same premises in as much as the plaintiff would lose their peace on account of rating noise of the
79

( 1938) Ch.1 CA AIR 1963 MP 89

80

60

flour mill and thereby health would also be adversely affected. It was held that substantial addition to the noise in a noisy locality by the running of the impugned machines, seriously interfered with the physical comfort of the plaintiffs as such it amounted to nuisance and the plaintiffs were entitled to an injunction against the defendant. In Robinson v. Kilvert81 it was held that an act which is otherwise reasonable does not become unreasonable and actionable when the damage even though substantial caused solely due to the sensitiveness of the plaintiff or the use to which he puts his property. In this case the plaintiff warehoused brown paper in building. The heat created by the defendant in the lower portion of the same building for his own business dried and diminished the value of the plaintiffs brown paper. The loss was due to an exceptionally delicate trade of the plaintiffs operations. So the court held that a person cannot increase the liability of his neighbors by carrying an exceptional delicate trade. 2. Interference with the use or enjoyment of land Interference may cause either a) injuring the property itself or b) injury to comfort or health of occupants of certain property. Injury to property An unauthorized interference with the use of the property of another person through some object tangible or intangible which causes damage to the property is actionable as nuisance. It may be by allowing the branches of tree to overhanging on the land of another person or the escape of the roots of a tree, water, gas, smoke, fumes etc. on to the neighbors land. In St. Helens Smelting Co. v. Tipping 82, fumes from the defendants company damaged plaintiffs trees and shrubs. Such damages being an injury to the property so it was held that the defendant liable.

81

(1889) 41 Ch.D 88 (1865) 11 HL.Cas 642

82

61

In Humperier v. Brodgen83, it was held that a person has a natural right to have his land supported by his neighbors and therefore removal of support, lateral or from beneath is a nuisance. Injury to comfort or health Substantial interference with the comfort and convenience in using the premises is actionable as a nuisance. A mere trifling or fanciful inconvenience is not enough. It was held in Ball v. Ray that disturbance to neighbors throughout the night by the noises of horses in a building which was converted into a stable was a nuisance. 3. Damage Unlike trespass which is actionable perse, actual damage is required to be proved in action for nuisance. In the case of public nuisance, the plaintiff can bring an action in tort only when he proves a special damage to him. DEFENCES Prescriptive right to commit nuisance: if the person has continued with an activity on the land of another person for 20 years or more he acquires a legal right by prescription to continue therewith in future also. A right to commit a private nuisance may be acquired as an easement if the same has been peaceably and openly enjoyed as an easement and as of right without interruption and for 2o years. Statutory authority: an act under a statutory authority is a complete defence.

INVALID DEFENCES a. Nuisance due to the acts of others

83

(1850) 12 QB 739

62

b. Public good: it is no defence to say that what is a nuisance to a particular plaintiff is beneficial to the public in general. c. Plaintiff coming to nuisance: it is no defence that the plaintiff himself came to the place of nuisance. A person cannot be expected to refrain from buying a land on which a nuisance already exists and the plaintiff can recover if nuisance has been going on long before he came to that place. Who can sue? a. Occupier of land b. The reversioner can sue if the nuisance is a permanent injury c. The user of highway can sue when the nuisance cause special injury to him Who can be sued? a. The creator of the nuisance b. The land lord if it with his consent c. The occupier DISTINCTION BETWEEN PUBLIC AND PRIVATE NUISANCE. 1. A public nuisance is an injury, danger or annoyance to the public generally. A private nuisance is an injury to a persons right to comfortable occupation of his property. 2. The public nuisance affects common public rights and the latter affects the interests in the use or enjoyment of land of a particular section of the community. 3. Public nuisance is a criminal offence and the latter is a tort

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4. In public nuisance there is no prescriptive right to commit it. A continuous enjoyment will legalize the private nuisance 5. Act committed once may amount to public nuisance but in latter repetition is required 6. In public nuisance for suing interest in land is not necessary but in latter it is a must 7. A private nuisance may be done away with but a public nuisance cannot be abated by an individual. REMEDIES a. Abatement: This means the removal of a nuisance by the party affected. b. Injunction: Section 6 of the Specific Relief Act provides this remedy c. Damages

DISTINCTION BETWEEN NUISANCE AND TRESPASS 1. Trespass is an injury to the possession itself while nuisance is an injury to some right necessarily connected with possession 2. Trespass is actionable Per se whereas nuisance is actionable only on proof of actual damage 3. Unauthorized entry upon anothers land without causing any injury may constitute trespass. Nuisance on the other hand involves unreasonable interference with the others land. 4. Trespass involves direct interference whereas interference may not be direct but consequential in nuisance. 5. The interference in trespass is always through some tangible object whereas in nuisance it may be through the medium of intangible objects such as smell, vibrations, fumes, etc.
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NEGLIGENCE Negligence implies absence of intention to cause the harm complained of. It means careless or unreasonable conduct. But merely unreasonable conduct without damage is not actionable though it may be punishable offence. Such conduct when followed by harm to another gives rise to liability for negligence. In 1856 in Blyth v. Brimingharm Water Works co84., Anderson B, defined negligence as under: it is the breach of duty caused by the omission to do something which a reasonable man guided by those principle which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do. In another case Lord Wright defined negligence as under: negligence means more than headless or careless conduct whether in commission or omission, it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty owed. According to Swayne J of the US negligence is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation. According to Winfield, negligence as tort is the breach of a legal duty to care which results in damage undesired by the defendant to the plaintiff. From the above definitions it appears that there are three essential ingredients in constituting a negligent tort

1. Duty of care to the plaintiff

84

(1856) Ex 781

65

It means a legal duty rather than a mere moral, religious or social duty. The plaintiff has to establish that the defendant owed to him a specific duty to take care of which he has made a breach. There is no general rule of defining such duty, it depends in each case whether a duty exists or not. In Donoghue v. Stevenson85, a company manufactured ginger beer. The beer was put in an opaque bottle which was sold to retailers. A purchased a bottle from the retailer and gave it to his lady friend. She poured some of the contents in a tumbler and consumed the same. When the remaining contents of the bottle were poured into the tumbler the decomposed body of a snail floated out with the ginger beer. She had a shock and fell ill. She filed a case claiming compensation against the manufacturer for negligence. The House of Lords held that the manufacturer owed a duty to take care that the bottle did not contain noxious matter and that he was liable for the breach of the duty. In Ishwer Devi v. Union of India86, one Shamlal Malik, the deceased boarded one bus when the same arrived at the bus stop. Just when he had placed his foot on the foot board of the bus and had not yet gone in, the conductor rang the bell and the driver started the bus. The driver made an attempt to overtake another stationary bus closely that the deceased got squeezed between the buses and sustained serious injury which ultimately result in his death. In an action the court held that both driver and the conductor were rash and negligent in taking proper care of the safety of the passengers.

See Maha Prasad v. Union of India AIR 1978 All 303 Muncipal Board, Jaipur v. Brahm Kishore AIR 1973 Pat 168 Prag ice and oil mills v. Union of India AIR 1980 All 168 Glasgow Corpn v. Muir (1948) 2 All ER 44R Cater v. Mongini Bros (1917) 17 Bom LR 778
85

1932 AC 562 AIR 1869 Delhi 183

86

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Whether the defendant owes a duty to the plaintiff or not depends on reasonable forseeability of the injury to the plaintiff. If at the time of the act or omission, the defendant could reasonably foresee injury to the plaintiff he owes a duty to prevent that injury and failure to do that makes him liable. In Donoghue case it was held that you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor. Then the neighbor defined as persons so closely and directly affected by my act that I 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. In Grant v. Australian Knitting Mills Ltd .87, the defendants were manufactures of swimming suit. They dispatched the swimming suits in paper packets to retailers. The plaintiff bought one packet and used for swimming. She contracted a skin disease by the use of this suit. The cause was traced to the use of certain chemicals in the process of manufacture. The question was whether the manufacturer was liable to the ultimate user. By applying the foreseeability test the Privy Council held that since the defect existed at the point of manufacture itself there was breach of a duty owed to the ultimate user and upheld the tortious liability of the manufacturer In Cates v. Mongini Bros 88, the plaintiff a lady visited to a restaurant was injured by the falling of ceiling fan on her. The reason for the falling of the fan was a latent defect in the metal of the suspension rod of the fan. The defect could not have been discovered by a reasonable man. In an action against the defendants, who were running the restaurant, it was held that since the harm was not foreseeable they were not negligent and therefore were not liable for the loss to the lady plaintiff. Reasonable froeseability does not mean remote possibility: In Fardn v. Harcout-Rivington89, the defendant parked his car by the road side and left a dog inside the car. The dog jumped about and smashed a glass panel. A splinter from this glass injured the plaintiff
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1936 AC 85 (1917) 19 Bom. LR 778

88

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while he was walking past the car. It was held that the accident being very unlikely, there was no negligence in not taking a precaution against it and therefore the defendant was not liable. Lord Dunedin said that, if the possibility of danger emerging is only a mere possibility which would never occur to the mind of reasonable man, then there is no negligence in not having taking extra ordinary precautions. People must guard against reasonable probabilities but they are not bound to guard against fantastic probabilities. See Sekhraj v. SRTC, Calcutta AIR 1966 Cal. 620 SK Devi v. Uttam Bhol Air 1974 Ori. 207 SP, Dharwar v. Nikhil Bindurao, (1974) 2 Kan LJ 495 Bolton v. Stone (1951) 1 All ER 1078 Duty must be owed to the plaintiff : Mere carelessness on the part of the defendant does not entitle the plaintiff to sue him; it has to be proved that the defendant owed a duty of care to the plaintiff. When the defendant owes a duty of care to persons other than the plaintiff, the plaintiff cannot sue even if he might have been injured by the defendants act. For e.g. in Palsgraf v. Long Island Railroad Co 90., a passenger carrying a package was trying to board a moving train. He was seemed to be unsteady as if about to fall. Two servants of the defendant came forward to help the passenger and one of them, a railway guard pushed the passenger from behind to help him to get into the train. In the act the package in the possession of the passenger was dislodged and fell upon the rails. The package contained fireworks and its fall resulted in an explosion. The package was small and nature of its content could not be noticed from its appearance. Due to this explosion one lady got injured. She sued the defendant alleging negligence on the part of their servants. The court held that the conduct of defendants guard was a wrong in relation to the holder of
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(1932) 146 LT 391 ( 1928) 284 NY 339

90

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the package, was not a wrong in its relation to the plaintiff, standing far away. Relatively to her it was not a negligence. 2. Breach of duty In an action for negligence the plaintiff must prove that defendant committed a breach of duty to take care. Breach of duty here means non-observance of due care which is required in a particular situation. If the defendant has not acted like a reasonably prudent man there is breach of duty. The law does not require greatest possible care but the care required is that of reasonable man under circumstances. What may amount to breach of duty of care in a particular place and occasion may not be a breach of duty of care in another place or occasion. Thus a certain speed may not be negligence for a fire brigade vehicle but the same speed may be an act of negligence for another vehicle. It was also held in Blyth v. Birmingham Waterworks co91, negligence is the 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. In KSEB v. Suresh Kumar92 , a minor boy came in contact with overhead electric wire which had sagged to 3 feet above the ground got electrocuted and received burn injuries. The electricity Board had a duty to keep the overhead wire 15 feet above the ground. So the board was held liable for the breach of its statutory duty. In Glasgow Corporation v. Taylor93, a public garden was under the control of the defendants corporation. In the garden there was a poisonous tree. The fruits of the tree looked like cherries. A child aged seven ate those fruits and died. It was found that the shrub was neither properly fenced nor noticed regarding the deadly character of the fruit was displayed. It was therefore held that the defendants were liable for breach of duty of care.
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(1856) Ex 781 1986 ACJ 998 (1992) 1 AC 44

92

93

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See Haley v. London Electricity Board (1964) 3 All ER 158 Bhagwat Swarup v. Himalaya Gas co. AIR 1985 HP 41 Mysore SRTC v. Albert Disa AIR 1973 Mys 240 Nirmala v. TNEB AIR 1984 Mad 201 3. Damage The third ingredient of the tort of negligence is that the plaintiffs damage must have been caused by the defendants breach of duty and not due to any other cause. The general rule is that in an action of negligence the burden of proof is on the person who complaints negligence. He must show that he was injured by an act or omission for which the defendant is liable. There must be proof of some duty owed by the defendant, breach of that duty and consequent damage suffered by the plaintiff. RES IPSA LOQUITOR. The rule that it is for the plaintiff to prove negligence of the defendant may cause hardship to the plaintiff if it is impossible for him to know what precise acts or omissions lead to his injury or damage and this is most obviously so where the cause of the damage is peculiarly within the means of knowledge of the defendant who caused it. In these circumstances this hardship can be avoided by the application of the maxim res issa loquitor. Though as a general rule the plaintiff has to discharge the burden of proving negligence on the part of the defendant, there are however certain cases when the plaintiff need not prove that the defendant was negligent. The negligence of the defendant under such circumstances would be inferred from the facts on the basis of the maxim res ipsa loquitor, which means the thing speaks for itself. When the
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accident explains only one thing and that is the accident could not ordinarily occur unless the defendant had not been negligent, the law raise a presumption of negligence on the part of the defendant. Then the burden of proof is shifted from the plaintiff to the defendant and the defendant has to prove that he was not negligent. Winfield sated that there are two requirements for applying the maxim res ipsa loquitor a) that the thing causing the damage be under the control of the defendant or his servants b) that the accident must be such as would not in the ordinary course of things have happened without negligence. For e.g. in Asa Ram v. Muncipal Corporation, Delhi94, due to uninsulated overhead electric wire becoming lose death of plaintiff son was caused by electrocution. It was found that inspite of previous complaints the Electricity Board had failed to take due care. The presumption of negligence was raised and the parents of the deceased who was held entitled to get compensation. In Jasbir Kaur v. State of Punjab 95, a newly born child found missing from a bed in Government run hospital. He was stated to have been carried away by a cat and he was found perfusily bleeding in a bathroom with one eye completely gouged out. A presumption of negligence was raised against the hospital authorities and they were held liable to pay compensation. See Aparna Dutta v. Aopollo Hospital ltd AIR 2000 Mad 340 Agya Kan v. PEPSU RTC AIR 1980 P&H 183 KSRTC v. Krishnan AIR 1981 Kant.11 The maxim res ipsa loquitor applies when the only inference from the facts is that the accident could not have occurred but for the defendants negligence. If from the facts two inferences or different
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AIR 1995 Delhi 164 AIR 1995 P&H 278

95

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inferences possible then this maxim will not apply to such cases. It was so held in Walkein v. London and South Western Rly Co96.

See Madhavi v. Karan 1971 KLT 63 Syad Akbar v. State of Karnataka AIR 1979 SC 1848 NEGLIGENCE IN MEDICAL PROFESSION In Dr. LB Joshi v. TB Godbole 97, the Supreme Court held that a medical practitioner has the following duties when a patient consults him for treatment: a. A duty of care in deciding whether to undertake the case b. A duty of care in deciding what treatment to give and c. A duty of care in the administration of the treatment. A breach of any of the above mentioned duty of care gives a right of action for the negligence to the patient. NEGLIGENCE IN LEGAL PROFESSION

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(1886) 12 App Cas 41 AIR 1989 P&H 183

97

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In England for over a century it has been held that barristers cannot be sued for breach of professional duty. This was settled in Swinfen v. Chemsford and Batcelor v. Pattison98 cases. The same was recognized by Halsburys Laws of England also (3 rd Edn-1953). Recently it was statutorily recognized in the Courts and Legal Services Act, 1990 under sec. 62 In India sec.5 of the Legal Practitioners Fees Act, 1926 provides that no legal practitioner who has acted or agreed to act shall by reason only of being a legal practitioner be exempt from liability to be sued in respect of any loss or injury due to any negligence in the conduct of his professional duties. Thus in Veerappa v. Evelyn Squira99, the Supreme Court held that an advocate who has been engaged to act is clearly liable for negligence to his client. See Manjit Kaur v. Deel Bus Service AIR 1989 P&H 183. Contributory negligence- Refer Module III DEFENCES 1. Contributory negligence 2. Act of god 3. Inevitable accident 4. Novus actus intervenes

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(1860) 5 H&N 890; (1876) 3 R (Ct. Sess.) 914 AIR 1988 SC 506

99

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Suggested References:

1. RFV. Heuston & RA Buckly, Salmond and Heuston on Law of Torts , 20th Edn- 1992, Universal Law Publishers, Delhi. [ Chapters 5,9] 2. Vivienne Harpwood, Principles of Tort Law, 4th Edn- 2000, Cavendish Publishing Limited, London. [ Chapter 11] 3. SP Singh & Indrajith Singh, Law of Torts, 4th Edn 2006, Universal Law Publishers, Delhi. [ Chapters 13,20] 4. B M Gandhi, Law of Torts, EBC, Lucknow, 2002. [ Chapters 16,17] 5. R K Bangia, Law of Torts, 8th Edn- 2005, Allahabad Law Agency, Haryana. [Chapters 9,11,12] 6. Ratanlal & Dhirajlal, The Law of Torts, 24th Edn-2004, Wadhwa, Nagpur.
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[Chapter 20]

MODULE VI

DEFAMATION Next to life, man cares and loves most for his reputation. In an injury causes to his reputation he psychologically suffers to a great extent. Some persons may commit suicide due to defamation. According to Vivienne Harpwood, defamation consists of publishing a defamatory statement which refers to an identifiable claimant, without lawful justification. According to Winfield, defamation is the publication of a statement which reflects on a persons reputation and tents to lower on a persons reputation of right thinking members of society generally or tends to make him shun or avoid him. So whenever there is an injury to the reputation of a person, he may institute civil proceedings for damages against the wrongdoer. Libel and Slander Defamation consists of the torts of libel and slander. Libel is representation made in some permanent form e.g. writing, printing, picture or statue etc. slander is the publication of a defamatory statement in a transient form e.g. it may be spoken by words or gestures.
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Distinction between Libel and Slander 1. Libel is a written defamation addressed to the eye. Slander is a spoken defamation addressed to the ear. 2. Libel is in some permanent form produced with deliberations. Slander is defamation in transient form. 3. At common law a libel is a criminal offence as well as a civil wrong but a slander is a civil wrong only. Under the Indian Law both are considered as criminal offences. 4. A libel is a tort of actionable per se. A slander is actionable only when special damage can be proved to have been its natural consequences or it conveys certain imputations. In exceptional cases slander is actionable without proof of special damage. They are a) imputation of criminal offence punishable with imprisonment b) imputation of disease c) imputation of unchastity d) imputation of unfitness of incompetence. The important reasons are assigned for the above distinctions are a. In a libel the defamatory matter is in some permanent form, a slander is in its nature transient b. A slander may be uttered in the heat of the moment and a sudden provocation, the reduction of the charge into writing and its subsequent publication in a permanent form show greater deliberation and raise a suggestion of malice. c. A libel conduces to breach of peace a slander does not. The differences between libel and slander have been abolished in some commonwealth jurisdictions and in 1975 the Faulks Committee recommended that they should be abolished in English Law, but the distinction remains despite of the Defamation Act, 1996. This distinction which is recognized in the English Law is severely criticized by the framers of the Indian Penal Code. In India both libel and slander are
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criminal offences under sec. 499 of IPC. Thus in India there is no distinction between libel and slander under criminal law. Whether libel and slander distinction is there in civil proceedings raise a controversy once but though there is no clear answer in this question, the judicial stand is against this distinction See Parvathi v. Manner ILR (1885) Mad 175 Ranidhara v. Phulwatibai 1969 MPLJ 383

In HC D silva v. EM Potenger case the Calcutta High Court observed that the English rule regarding proof of special damage in actions for slander does not apply in India

Essentials of Defamation 1. The statement must be defamatory: Defamatory statement is one which tends to injure the reputation of the plaintiff. It must not only be false but also defamatory. The defamatory statement could be made in different ways: it may be oral, in writing, printed or by the exhibition of a picture, statue of by some conduct. The statement must be such which tends to lower a person in the estimation of the right thinking members of society generally or which tends to make them shun or avoid that person. Whether a statement is defamatory or not thus depends upon how the right thinking members of the society are likely to take it. The standard to be applied is that of a right minded citizen a man of fair average intelligence and not that of a special class of persons whose values are shared or approved by the fair minded members of the society generally. Thus any statement may be defamatory which exposes the plaintiff to hatred, ridicule, contempt or tends to injure him in his
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profession or trade or causes him to be shunned or avoided by the right thinking members of society generally. In Yousoupoff v. MGM Picture Ltd 100, the plaintiff, a Russian Princes was falsely imputed by a cinematograph film that she had been raped or seduced by the notorious monk, Rasputin. The court held that this tendered to make the plaintiff be shunned and avoided in the estimation of right thinking persons of the society generally. In DP Choudhary v. Manju Lata101, a local daily published a statement that Manjulata a girl of 17 years and a student of BA, had run away with a boy named Kamalesh on the pretext of attending night classes in her college. The court found that the statement was false so held liable in an action.

Refer Ramdhara v. Phulwatibai 1969 Jab LJ 582 SNM Abidi v. Profulla Kumar Mohanta AIR 2002 Gau. 75(DB) Prameela Ravindran v. P. Lakshmikuttiyamma AIR 2001 Mad 225 Innuendo A statement may be prima facie defamatory and that is so when its natural and obvious meaning leads to that conclusion. Sometimes, the 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
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1934 (50) ILR 581 AIR 1997 Raj 170

101

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secondary meaning i.e. the innuendo which makes the statement defamatory. For e.g. X published a statement Miss Y had given birth to a child. Here the statement in its natural meaning is not defamatory. But it may become defamatory Y pleads that she was not married yet. In Cassidy v. Daily Mirror News Paper Ltd102, the defendant published in a news paper a photograph of Mr. M and Miss C together with the words, Mr. M the race horse owner and Miss C whose engagement has been announced. This statement was false as they were already married. In an action by the plaintiff, the wife of Mr. M it was held that the publication was capable of conveying a meaning defamatory of the plaintiff viz. that she was not lawful wife of Mr. M and was living with him in immoral cohabitation. The defendants were therefore held liable. When the words are considered to be defamatory by the persons to whom the statement is published, there is defamation even though the person making the statement believed it to be innocent. So held in Cassidy case.

2. The statement must refer to the plaintiff: In an action for defamation the plaintiff has to prove that the statement of which he complaints referred to him. It is immaterial that the defendant did not intend to defame the plaintiff. If the person to whom the statement was published could reasonably infer that the statement referred to the plaintiff, the defendant is nevertheless liable. In Newsted v. London Express Newspaper Ltd 103, the defendants published an article stating that Harold Newstead, a chaberwell man had been convicted of bigamy. The story was true of Harold Newstaed, a Camberwell barman. The action for defamation was brought by another Harold Newstead, a Camberwell

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(1929) 2 KB 331 (1939) 4 All ER 391

103

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Barber. As the words were considered to be understood as referring to the plaintiff, the defendants were held liable. See Morgan v. Odhams Press Ltd (1971) 1 WLR 1239 When the words refer to a group of individual or a class of persons, no member of that group or class can sue unless he can prove that the words would reasonably be considered to be referring to him. Thus if a man wrote that all lawyers were thiefs no particular lawyer could sue him unless there was something to point to the particular individual. An individual unless the group in question has legal identity for example is a company and can therefore sue for loss of the groups reputation, no action will stand unless a) the class is so small that the claimant can establish that the statement must apply to every member of the class or b) the claimant can show that the statement refers to him or her directly. The leading case is Knuppfer v. London Express Newspaper ltd104, the appellant was the member of a party the membership of which about two thousand out of which twenty four members including the plaintiff were in England. The respondents published a statement of the party as a whole. Some of the appellants friends considered the article to be referring to him. It was however held that since the article referred to such a big class, most of the members of which are resident abroad, it could not reasonably be considered to be referring to the appellant and the respondents were not liable. In Dhirendra Nath v. Rajat Kanti105, it was held that when an editorial in a newspaper is defamatory of a spiritual head of a community, an individual of that community does not have a right of action. In AIADMK, Madrs v. K. Govindan Kutty106, the Court held that to defame a dead person is not a tort and the maxim actio personalis moritur cum persona will applies in such kind of cases.
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(1944) 1 All ER 495 AIR 1970 Cal 216 (1996) 2 ALD 139

105

106

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3. The statement must be published Publication means making defamatory statement known to some person other than the person defamed and unless that is done no civil action for defamation lies. Communication to the plaintiff himself not enough because defamation is injury to the reputation and reputation consists in the estimation in which others hold him and not a mans own opinion of himself. For e.g. A writes to B and tells him falsely that C is a cheat, this is a publication but if A write to C and tells him that he is a cheat, this is not a publication. In Arumuga Mudhaliar v. Annamalai Mudhaliar107, where two persons jointly write a letter containing defamatory matter concerning the plaintiff and sent the same by registered post. The court held that there was no publication. In Mahendra Ram v. Harnam Prasad108, the defendant wrote a defamatory letter in Urdu to the plaintiff. The same was read over to him by a third person as the plaintiff did not know Urdu. It was held that unless the defendant knew at the time of writing letter that the plaintiff did not know Urdu language and it would necessitate reading of the letter by a third person he would not be liable. In TJ Ponnen v. MC Varghese109., it was held that communication between husband and wife or vice versa is not amount to publication. In this case the husband wrote a letter containing defamatory statements against her father in law, MC Varghese. An action by MC Varghese was rejected on the basis of sec.122 of Indian Evidence Act, i.e. it was a privileged communication. DEFENCES 1. Justification by truth:

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(1966) 2 MLJ 223 AIR 1958 Pat 445 AIR 1970 SC 1876

108

109

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In a civil action for defamation, truth of the defamatory matter is a complete defence. The principle is that the law will not permit a person to recover damages in respect of an injury to a character which he does not or ought not to possess. In Vimal Kumar v. Desdwikar110, the plaintiff alleged that the defendant published a circular wherein it was stated that the plaintiff, a Minister was arrested for causing nuisance in management of school and he also took share from salary of teachers. The allegations found to be correct by evidence of students and teachers. Thus the act of the defendant was held to be non-libelous. In cases where the defamatory statement contains several charges and some of them are found true and some not, the court held that if the statement is proved to be substantially true, it does not matter if it is incorrect on some immaterial detail. So held in Alexander v. NE Rly Co111. case. 2. Fair Comment: The second defence to an action for defamation is that of fair and bonafide comment. Following are the essential requisites of fair comment: a. It must be a comment and not statement of facts: comment means an expression of opinion based on certain facts. The facts must be true. If the facts are not true, the comment thereon will not come within the ambit of good defence. b. Comment must be fair and bonafide: the word fair means honest and also of relevant comment or in other words it must be genuine or real comment c. The matter commented upon must be of public interest: whether it amounts to a public interest or not will depend upon the facts and circumstances of each case

3. Privilege
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AIR 2005 MP 37 (1855) 6 B&S 340

111

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There are certain occasions when the law recognizes that the right of free speech outweighs the plaintiffs right to reputation, the law treats such occasions to be privileged and a defamatory statement made on such occasions is not actionable. These privileges are of two categories: a. Absolute Privilege In matters of absolute privilege no action lies for the defamatory statement even though the statement is false or has been made maliciously. In such cases public interest demands that an individuals right to reputation should give way to the freedom of speech. These cases are i. Parliamentary Privilege: Article 105 of Indian Constitution provides this. ii. Judicial proceedings - it provides under the Judicial Officers Protection Act, 1850 See Rajinder Kishore v. Durga Sahai AIR 1967 All 476 TG Nair v. M.Sankunni Air 1971 Ker. 280 iii. State communications: a statement made by one officer of the state to another in the course of official duty is absolutely privileged for reasons of public policy. 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 a) the statement was made on a privileged occasion i.e. was in discharge of duty or protection of interest or it is a fiar report of parliamentary or other public proceedings b) the statement was made without malice. Difference between absolute and qualified privilege.

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1. In absolute privilege the occasion itself is privileged but in the latter occasion is not privileged unless and until the defendants proves it. 2. In absolute privilege the malice is irrelevant, but in the latter it is relevant. 3. Absolute privilege is irrebuttable but the latter is rebuttable.

DEFAMATION AND INSULT The words of defamation is distinct from insult caused by words, signs or representations in that in the former the defendant injures the plaintiffs estimation of reputation by others or what others think about him, while in the latter the defendant hurts the dignity or self esteem of the plaintiff or what the plaintiff thinks about himself. The former requires publications while in the latter it is not necessary. The former is an actionable wrong while the latter is not so actionable unless accompanied by defamatory words. REMEDIES a. Injunction b. Damages MALICIOUS PROSECUTION The tort of malicious prosecution provides redress for those who are prosecuted without just cause and with malice. This tort owes it origin during the reign of Elizabeth I, in the beginning principles were uncertain and therefore a just accuser was deterred in instituting criminal proceedings against a person because of fear of damages for malicious prosecution. In 1698 Holt CJ in Saville v. Roberts112 classified damage for the purpose of this tort. He said whenever malicious prosecution results in damage to a)

112

1 ILD Rayam 374

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mans fame b) the safety of his person or c) the security of his property, he can institute civil action for malicious prosecution. In order to succeed in an action for this tort, the claimant must prove that there was a prosecution without reasonable and probable cause initiated by malice and the case was resolved in the claimants favour. It is necessary to prove that damage was suffered as a result of the prosecution. Thus the essential elements are: 1. A Prosecution: There must have been a prosecution initiated by the defendant. Prosecution means to set the law in motion against another person. The person to be sued is the person who was actively instrumental in putting the law in force. Any person who is prepared to sign a charge sheet and appear as a witness will be liable for an action under this tort if the other elements of the tort are proved. In Martin v. Watson113, the House of Lords held that what is required here is for the defendant to have been actively instrumental in the instigation of proceedings and that merely giving information to a police officer who then goes on to make an independent judgment on the matter, will not be sufficient to form the basis of an action. In this case the defendant was a person with a long history of ill feeling against the claimant and she had gone out of her way to deceive the police indenting them to take action and to prosecute the claimant. This did amount to her having been sufficiently instrumental in the prosecution to provide the basis for a successful civil claim. In Gregory v. Portmouth114, it was held that the malicious prosecution of disciplinary proceedings would not give rise to a claim for tort of malicious prosecution. See Bolandanda Pemmayya v. Ayaradara AIR 1966 Mys 13
113

1996 AC 74 2000 The Times 2 February

114

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Kapoor Chand v. Jagadish Chand AIR 1974 P&H 215

2. Without reasonable and probable cause This is the second essential condition for the claimant to prove that the defendant prosecuted him without any reasonable and probable cause. The term reasonable and probable cause has been defined by Hawkins J in Hicks v. Faulkner115, is an honest belief in the guilt of the accused based upon reasonable grounds of the existence of a state of circumstances which assuming them to be true, would reasonably lead 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. Thus reasonable and probable cause means honest belief in the guilt on the accused based upon reasonable grounds. The above definition was adopted in an Indian case by Orissa High Court in Jogendra v. State116, while adopting the above principle it established an important exception to the rule that plaintiff should prove that there is no reasonable and probable cause. The court said, where the accusation against the plaintiff purports to be in respect of an offence which the defendant claimed to have seen him commit, and the trail ends in an acquittal on the merits, the presumption will not only be that plaintiff was innocent but also there was no reasonable and probable cause for the accusation.

3. Initiated by malice Here malice means motivation by some desire other than that of bringing the accused to justice. If there are motives for the prosecution, the claim will succeed if the malicious motive was dominant. In Jogendra v. Lingraj117, the court stated that the malice means the presence of some improper and wrongful motive that is to say, intent to use the legal process in question for some other than its legally
115

(1878) 8 QBD 167 AIR 1970 Orissa 91

116

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appointed or appropriate purposes. It is to be established by inference from circumstances and cannot be proved by direct evidence.

See Abdul Majid v. Harbansh Choube AIR 1974 All 130 It was held in Bhogi v. Saroj Bahan118, that if there is reasonable and probable cause for instituting prosecution the defendant even if there is malice, is not liable for this tort. 4. The case must be resolved in the claimants favour If the claimant is acquitted or the proceedings are dropped or discontinued or the plaintiff is convicted but the conviction is quashed on appeal there will be a good basis for an action for malicious prosecution. 5. Damage In order to succeed, the claimant must prove that he or she has suffered loss of reputation, loss of life or limb or liberty or financial loss. Once damage under one of these heads is established, other damage which flows from it such as distress may also be compensated. See Sova Rani Dutta v. Dehabratta Dutta AIR 1991 Cal 185 Lakhanala v. Kashinath AIR 1960 MP 171 DISTINCTION BETWEEN FALSE IMPRISONMENT AND MALICIOUS PROSECUTION
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AIR 1970 Ori. 91 AIR 1979 Guj 200

118

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1.

False Imprisonment is wrongfully restraining the personal liberty of the plaintiff whereas the malicious prosecution is the unlawful use of legal procedure to bring about legal confinement.

2. The defendant under False Imprisonment must affirmatively prove the existence of reasonable and probable cause or justification whereas the plaintiff has to prove its non existence in the latter. 3. Malice is not an essential ingredient in false imprisonment but it is essential in malicious prosecution. 4. The personal liberty of plaintiff is wrongfully restrained by private individual in false imprisonment whereas arrest under malicious prosecution is secured by judicial sanction.

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Suggested References:

1. W V H Rogers, Winfield & Jolowicz Tort, 17th Edn-2006, Sweet & Maxwell, London. [ Chapter 12] 2. Vivienne Harpwood, Principles of Tort Law, 4th Edn- 2000, Cavendish Publishing Limited, London. [ Chapter 18] 3. Paula Giliker & Silas Beckwith, Tort, 2ndEdn- 2004, Sweet & Maxwell, London. [Chapter 12] 88

4. DG Cracknell, Obligations: The Law of Torts, 4th Edn- 2003, Old Baily Press, London. [ Chapter 23] 5. SP Singh & Indrajith Singh, Law of Torts, 4th Edn 2006, Universal Law Publishers, Delhi. [ Chapters 19,23] 6. B M Gandhi, Law of Torts, EBC, Lucknow, 2002. [ Chapter 10] 7. R K Bangia, Law of Torts, 8th Edn- 2005, Allahabad Law Agency, Haryana. [Chapters 8,10] 8. Ratanlal & Dhirajlal, The Law of Torts, 24th Edn-2004, Wadhwa, Nagpur. [Chapters 12, 13]

MODULE VII LIABILITY There are situation when 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. It other words sometimes the law recognizes No-Fault liability. There are two important branch of non- fault liability in law of torts: 1. The rule in Rylands v. Fletcher i.e. Rule of strict Liability and 2. Rule in MC Mehta v. Union of India i.e. the rule of Absolute Liability. THE RULE IN RYLANDS V. FLETCHER
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This rule was formulated by Blackburn I, in Fletcher v. Rylands (1866) and approved by the House of Lords in 1868 in Rylands v. Fletcher. Originally it was established as a part of a nuisance but now it attained the status of a distinctive branch of tortious liability. This rule is based on the maxim sic utero tuo ut alienum no leadas which means so use your own property as not to injure the property of your neighbor. In this case defendant was a mill owner who had employed independent contractors to build a reservoir on his land to provide water for his mill. During the course of building the contractors discovered some old shafts and passages of an abandoned coalmine on the defendants land which appeared to be blocked. When the reservoir was filled the water burst through the old shafts, which were subsequently found to connect with the plaintiffs mine. As a result the plaintiffs mine was flooded and he sought compensation. Although the contractors had clearly been negligent in failing to ensure that the mine shafts were blocked off securely, the plaintiff action was against the mill owners. The mill owner had not been shown to be negligent. The plaintiff also faced the added obstacle that the courts had severe doubts whether an isolated escape as opposed to a continues state of affairs, could found an action succeeding. The case was finally resolved at House of Lords level, but the classic statement of principle was given by Blackburn J in the court Exchequer Chamber, we think that the true rule of law is that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes must keep it in at his peril and if he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape. This may be regarded as the rule in Rylands v. Fletcher. According to the rule if a person brings on his land and keeps there any dangerous thing i.e. a thing which is likely to do mischief if it escapes, he will be prima facie answerable for the damage caused by its escape even though he had not been negligent in keeping it there. The liability arises not because there was any fault or negligence on the part of a person but because he kept some dangerous thing on his land and the same has escaped from there and caused damage. Since in such a case the liability arises even without any negligence on the part of the defendant it is known as the rule of strict liability. To the above rule laid by Blackburn J, another important qualification was made by the House of Lords when the case came before them. It was held that for the liability under the rule, the use of land should be
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non-natural as was the position of in Rylands v. Fletcher itself and that the thing must have been brought on the land which was not naturally there. Thus for the application of the rule the following essentials should be there: 1. Some dangerous thing must have been brought by a person on his land: According to this rule the liability for the escape of a thing from ones land arises provided the thing collected was a dangerous thing i.e. a thing likely to do mischief if it escapes. Thus if a person collects a non-dangerous thing the rule of strict liability has no application. In Rylands v. Fletcher the thing so collected was a large body of water. This rule is applicable to gas, electricity, oil, noxious fumes, vibrations, poisonous vegetation, rusty wires etc. 2. Escape of the thing The rule in Rylands v. Fletcher will be applicable only if the thing causing the damage escapes to the area out side the occupation and control of the defendant. In Read v. Lyins119, an inspector of munitions had been injured by an explosion of a shell whilst inspecting the defendants munitions factory. The court held that there had not been an escape within the rule. An escape would only occur when the object moved from the defendants premises to a place which was outside his occupation or control. In Crowhurst v. Amersham Burial Board 120, the branches of a poisonous tree in the defendants land over hanged to the neighbors land and the plaintiffs cattle ate the leaves of the same and poisoned. The defendant was held liable for the escape of dangerous thing. In Ponting v. Noakes121 the plaintiffs horse intruded over the boundary and nibbed the leaves of poisonous tree in the defendants land. The court held there is no escape of dangerous thing.
119

(1947) 63 LQR 159 (1878) 4 EXDS (1894) 2 QB 281

120

121

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See N. Narayana Bhattathiripad v. Travancore Govt. AIR 1956 Tra-Co 225 3. It must be a non- natural use of the land: The rule in Rylands v. Fletcher will be applicable only when the defendant uses the land for non natural purpose. The term non-natural use of land was defined by Lord Moulton in Richards v. Lothian122 reads as; it is not every use to which land is put that brings into play the RVF principle. It must be some special use bringing with it increased danger to others and must not merely be the ordinary use of the land as such a use as is proper for the general benefit of the community. In Bolton v. Stone123, playing cricket on land was held to be a natural use of land. In this case the plaintiff while standing outside her house was hit by the cricket ball and sustained injury. In Noble v. Harrison124, it has been held that non-poisonous trees on ones land are not non-natural use of land. But in Crowhurst case it was held that the growing of a poisonous tree was a non natural use of land. In TC Balakrishna Menon v. TR Subramanian 125, it was held that the use of explosives in a maiden ground even on a day of festival is a non natural use of land. 4. Foreseability of damage of the relevant type:

122

1913 AC 263 1951 AC 85 (1926) 2 KB 332 AIR 1968 Ker 151

123

124

125

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In Cambridge Water Co. v. Eastern Counties Lather plc 126 case House of Lords held that the rule was inapplicable unless it could be foreseen that damage of the relevant type would occur as the result of an escape. Thus if the possibility of the damage which occurs is scientifically unknown at the time when the escape takes place there is no liability. In this case the defendants had used a chemical called Perchloroethane (PCE) for degreasing pelts in their tannery. There were regular spillages which gradually seeped into and built up under the land. The chemical seepage was such that it contaminated the plaintiffs water supply 1.3 miles away and forcing them to find another source. So the plaintiff filed an action under the rule in Rylands v. Fletcher. The House of Lords held that the defendants were not liable. It was not foreseeable to a skilled person that such quantities of chemical would cause damage to the plaintiffs water and froseeability of damage was a requirement of liability under the rule in Rylands v. Fletcher. DEFENCES The judgment of Blackburn J, approved by the House of Lords in RVF itself recognized that the liability is not absolute being subject to certain exceptions. Blackburn J made it a part of the rule that he (the defendant) can excuse himself by showing that the escape was the consequence of vis major or the act of god. In the light of that passage a person is not liable if the damage is owing to the following causes. 1. Act of god Which is defined to a direct, violent, sudden and irresistible act of nature as could not by any amount of ability have been foreseen or if foreseen could not by any amount of human care and skill have been resisted. For e.g. in Nicholas v. Marshland127, the defendant had a series of artificial lakes in his land, in the construction or maintenance of which there had been no negligence. Owing to a most unusual fall of rain, so great that it could not have been reasonably anticipated some of the reservoirs burst and carried away four country bridges. It was held that the defendant was not liable in as much as the water escaped by the act of god. See Greenock Copn v. Caledonian Rly 1917 AC 556 HL
126

(1994) 2 AC 264

127

1875 LR 10 Ex 255

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2. Wrongful act of a third party A landlord using his premises in an ordinary and proper manner is bound to exercise all reasonable care but he is not, responsible for damage not due to his own default. Whether that damage be caused by inevitable accident or wrongful act of third persons. Where the reservoir of the defendant was caused to overflow by a third party sending a great quantity of water down the drain which slipped it, and damage was done to the plaintiff, it was held that the defendant was not liable. The case in point is Box v. Jubb128. 3. Plaintiffs own default It is a valid defence that the escape was due wholly or partly to the claimants fault. In Ponting v. Noakes129, the plaintiffs horse had died when it had reached over the fence and eaten leaves from a poisonous tree on the defendants land. The defendant was held not liable when the harm suffered was due to the horses own conduct. 4. Statutory Authority In Green v. Chelsea Waterworks Co130., the defendants who were under a statutory duty to maintain a continuous supply of water were not liable in the absence of negligence the water main burst damaging the plaintiffs premises, horse and stock. 5. Consent: this may be express or implied 6. Common Benefit: Where the source of the danger is maintained for the common benefit of the claimant and the defendant, the defendant is not liable fir its escape. In Carsitairs v. Taylor, the defendant who was the land lord of the
128

(1879) 4 Ex D 76 (1894) 2 QB 281 (1894) 70 LT 547

129

130

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plaintiff and lived in the upper storey maintained a water tank for the benefit of both. One day it leaked without negligence of the defendant and damaged the plaintiffs goods. It was held that water was being used by the plaintiff and the defendant the defendant would not be liable. REMEDIES Damages CRITICISMS OF RULE IN RYLANDS V. FLETCHER A. It purports to be a rule of absolute liability but in reality it is not by reason of its exceptions B. It is open to the criticism that it is really unnecessary. Though it was propounded in 1867 and since invoked in numerous cases, liability could have been imposed in most of them on the ground of negligence. C. It is inadequate to meet new situations for which the doctrine of negligence is also inadequate. Thus for the dangers due to the flight of aircraft a different rule which imposed a liability even for accidents which could not be averted by all possible care and might be due to acts of god was necessary and was supplied by legislation. D. In form it lacks precision and clearness. The terms likely to do mischief, non-natural uses etc are vague and in artistic. E. The historical basis of this rule is also open to criticism. It based on cattle trespass, injury by dangerous animals and escape of water, filth and stenches. First is an absolute liability second is a case of negligence third is a case of nuisance. ABSOLUTE LIABILITY A more stringent rule of strict liability than the rule in Rylands v. Fletcher was laid down by the Supreme Court in the case of MC Mehta v. Union of India. The case related to the harm caused by escape of oleum gas from one of the units of shriram foods and fertilizers. The court held that the rule of Rylands v. Fletcher which was evolved in the 19 th century did not fully meet the need of a modern industrial society
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with highly developed scientific knowledge and technology where hazardous or inherently dangerous industries were necessary to be carried on a part of the development programme and that it was necessary to lay down a new rule not yet recognized by English law to adequately deal with the problems arising in a highly industrialized economy. The court laid down the rule as follows: where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting, for e.g. in escape of toxic gas, the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-a vis the tortious principle of strict liability under the rule in Rylands v. Fletcher . The court gave two reasons justifying the rule: Firstly the enterprise carrying on such hazardous and inherently dangerous activity for private profits has a social obligation to compensate those suffering there from and it should absorb such loss an item of overheads and secondly the enterprise alone has the resources to discover and guard against such hazardous and dangers. The court also laid down that the measure of compensation payable should be correlated to the magnitude and capacity of the enterprise so that the same can have deterrent effect.

Differences between the Rule in Rylands v. Fletcher and Rule in MC Mehta Case: 1. Only those enterprise will be liable which are engaged in hazardous or inherently dangerous activity, this would mean that those not falling under the category of such enterprises will be outside the ambit of the rule where the in Rylands v. Fletcher will be still applicable 2. The escape of a dangerous thing from ones land to another is not necessary, this means that the rule will not only apply to those injured persons who are outside the premises but also to those who are inside. 3. The rule does not contain any exceptions
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4. The quantum of damages depends upon the magnitude and financial capability of the defendants enterprise. This rule in MC Mehta case or absolute liability principle was followed in various cases such as: Charan Lal Sahu v. Unoin of India AIR 1990 SC 1480 IndianCouncil for Enviornment Legal Action v. Union of India AIR 1996 SC 1446 Klans Mittelbachert v. East India Hotels Ltd,AIR 1997 Dej. 201 MP EB v. Shail Kumai JT 2002(1) SC 50

Bhopal Gas Leak Disaster Case On the night of December 2, 1984 an unprecedented disaster was caused by the leakage of MIC, a highly toxic gas from the plant of the Union Carbide in Bhopal which resulted in the death of over 2500 persons and injuries, mostly serious and permanent to more than 2 lakhs persons, mostly belonging to lower economic strata. The Government of India passed the Bhopal Gas Leak Disaster (Processing of claims) Act, 1985, conferring exclusive right on the government to represent the gas victims for claiming compensation. The Union of India filed a suit against the UGC in the US District court of New York but the same was dismissed on the ground that the Indian Courts are the more convenient and proper forum for such an action. The government then filed a suit for compensation in the District Court of Bhopal which ordered that the UGC should pay an interim relief of Rs. 350 crores to the gas victim. On a civil revision petition filed by the UGC the Madhya Pradesh High Court reduced the amount of interim relief payable to Rs 250 crore. Both the parties preferred separate appeals before the Supreme Court against the said decision. After a long drawn litigation for over 4 years there was a settlement between the Union of India and UGC in terms thereof the Supreme court in UGC v. Union of India passed order on February 14 and 15, 1989 directing the payment of a sum of 470 million US dollar or its equivalent nearly 750 cores.

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The settlement provoked criticism from various jurists, lawyers and environmentalists on the judgment seems to have been passed behind the backs of the victims. Some victims of the disaster then filed review petition in the Supreme Court challenging the order, and in 1991 the Supreme Court upheld the validity of the said settlement. NERVOUS SHOCK This branch of law is of recent origin and provides relief to a person who is injured not by physical impact, but by what he is saw or heard from his own senses. As our Indian law is based on common law and there being no case directly on the point, we have to discuss English cases to trace out the origin and development of the principles governing the liability for nervous shock. Nervous shock is a shock to nerve and brain structures of the body. The first attempt to claim damages for nervous shock was in Victorian Rly Commssioner v. Coultas 131 case. In this case the appellants gate keeper negligently invited the plaintiff and his wife who were driving in a boggy, to enter the gate at a crossing when the train was approaching and though there was no actual collision with the train, the escape was so narrow and the danger so alarming, that the lady fainted and suffered a severe nervous shock, which produced illness and miscarriage. Little medical evidence was available in those days to assist the court in arriving at its decision and Privy Council refused the claim expressing the fear that a flood of claims would follow if this succeeded. It was thought that a wide field of imaginary claims be opened. In 1897 in Wilkinson v. Downton132, the defendant was held liable when the plaintiff suffered a nervous shock and got seriously ill on being told falsely by way of a practical joke by the defendant the her husband gad broken both the legs in an accident. Though in the above case court awarded compensation to the victim it was not accepted the principle of liability in nervous shock as such.

131

1888 LRB AC 322 (1897) LR 2 QB 57

132

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Thus the first successful nervous shock case was Dulieu v. White133. The court prepared to recognize and compensate the claim of a publicans wife who suffered a severe fright when a horse drawn van crashed through the window of the bar where she was working, cleaning glasses. She was pregnant at the time and the child was born prematurely soon after the accident. The recovery of damages was limited by the judge, Kennedy J, to the particular facts here which involved real and immediate fear of injury to the claimant herself. He formulated a limitation on the scope of liability for nervous shock which became known as the Kennedy Limitation: shock, when it operates through the mind must be a shock which arises from a reasonable fear of immediate personal injury to oneself. The principles enunciated by Kennedy J, were accepted by later decisions but the limitation that was rejected by a court of majority in Hambrook v. Stoker Bros, the court was prepared to award damages for nervous shock when a mother who had been made to fear greatly for the safety of her children at the sight of a lorry careering out of control towards them, suffered a nervous shock had a miscarriage and died. The court took the view that it would be unfair and indeed absurd to deny a remedy when a mother feared for the safety of her children in circumstances where she had feared for her own safety the claim could have succeeded. Further development of law relating to the nervous shock led to the creation of two theories they are: a) Impact theory: this theory means that damage would only be awarded if the claimant was within the foreseeable impact or geographically close enough to the scene of the accident. b) The area of shock theory: this theory means that even if a claimant is outside the foreseeable area of impact, damages may still be recoverable as long as the claimant was within the foreseeable area of shock. In Bourhill v. Young134, the claimant an Edinburgh fish wife had just alighted from a tram when she heard the impact from a serious accident 50 yards away on the other side of the road and outside her line of vision. She later walked over to the scene and saw the blood left on the roadway. In consequence she suffered nervous shock and gave birth to a premature child of which she was eight month pregnant. She sued the personal representatives of the motor cyclist who died in that accident, for his negligence. Her contention was that she had sustained loss, injury and damage through the fault of the said motor cyclist
133

(1901) 2 KB 669 1942 AC 92

134

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and that she was entitled to reparation out of his estate but her claim for nervous shock failed. The House of Lords by a majority held that she was outside the area of impact and also she was a total stranger to the motor cyclist involved in the accident, so she was outside the area of foresight of shock. One important question which was also discussed in the above case is whether a person who witnesses an accident and suffers in consequence but himself in no personal danger can recover or not. Though court accepted the rule in Hambrooks case, held that a person have no right to recover compensation for nervous shock suffered inconsequences of an accident to a total stranger or a person who is not come under the category of close relationships such as parents, childrens, husbands and brothers etc. The court continued to extent the scope of liability for nervous shock. In Dooley v. Ammel Laird & co. ltd135, a crane driver recovered damages when he witnessed an accident involving a workmate. In Karlj v. Mc Grath136, a women who suffered nervous shock when she saw the dreadful condition of her child who was the victim of a negligent delivery by a doctor, succeeded in her action for nervous shock. Finding it difficult to apply the vague rule of foreseablity as applied in Bourhill case, the House of Lords in the case of Mc loughin v. OBrain137, made an exception to the area of reasonable foresight namely in certain circumstances it is not necessary that the plaintiff must be present in the area of vicinity at the time of accident. In this case in a road accident caused by the defendants negligence, the plaintiffs daughter was killed and her husband and two children were severely injured. At the time of accident the plaintiff was at home which two miles away. An hour later, the accident was reported to her by a friend who drove her to the hospital where she saw the injured husband and children and heard about the death of her daughter. The plaintiff suffered severe nervous shock and illness. The House of Lords held that the defendant liable for the injury by nervous shock as it was a reasonably foresee able consequence of the defendants negligence.
135

(1951) 1 Loyds Rep. 271 (1986) 1 All ER 907 (1982) 2 All ER 298

136

137

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Why the defendants were held liable in McLaughlin case was explained by the House of Lords in another case. Alock v. Chief Constable of South Yorkshire Police 138, that the plaintiff in such kind of cases will have to show close relationship of love and affection with the primary victim and also that his proximity to the accident was sufficiently close in time and space. So in Alock case where plaintiff, who suffered nervous shock when disaster at a football match was televised live and in news bulletins but without depicting the suffering or dying of recognisable individuals were held not entitled to damages. In Page v. Smith139, the House of Lords settled the guiding principles for liability in a claim arising out of a nervous shock. They are: 1. In cases involving nervous shock it is essential to distinguish between the primary and secondary victims. 2. In claims by secondary victims the law insists on creation control mechanisms in order as a matter of policy to limit the number of potential claimants. Thus the defendant will not be liable unless psychiatric injury is foreseeable in a person of normal health. These control mechanism have no place where the plaintiff if the primary victim. 3. In claims by secondary victims, it may be legitimate to use hindsight in order to be able to apply the test of foreseeablity at all. Hindsight however has no part to play where the plaintiff is the primary victim. 4. Subject to the above qualifications, the approach in all cases should be the same namely whether the defendant can reasonably foresee that this conduct will expose the plaintiff to the risk of personal injury whether physical or injury by nervous shock. If the answer is yes then the duty of care is established even though the physical injury does not in fact occur. 5. A defendant who is under a duty of care to the plaintiff whether as primary or secondary victim is not liable for damages for nervous shock unless the shock results in some recognized psychiatric illness.
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(1991) 4 All ER 907 (1995) 2 All ER 736

139

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6. The facts of this case is that the plaintiff though directly involved in a motor accident, remained physically unhurt but suffered a psychiatric illness, which he had earlier suffered but which was then in remission. The defendant was held liable though the accident was not foreseeable in a person of normal health. Thus the House of Lords clarified almost all the principles regarding the liability in an action for nervous shock but still some uncertainty is there.

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Suggested References: 1. W V H Rogers, Winfield & Jolowicz Tort, 17th Edn-2006, Sweet & Maxwell, London. [ Chapter 15] 2. Vivienne Harpwood, Principles of Tort Law, 4th Edn- 2000, Cavendish Publishing Limited, London. [ Chapter 4] 3. RFV. Heuston & RA Buckly, Salmond and Heuston on Law of Torts , 20th Edn- 1992, Universal Law Publishers, Delhi. [ Chapter 13] 4. SK Desai & Kumud Desai, The Law of Torts, 8th Edn- 1987, NM Tripathi Pvt. Ltd., Bombay.[ Chapter 17] 5. SP Singh & Indrajith Singh, Law of Torts, 4th Edn 2006, Universal Law Publishers, Delhi. [ Chapters 14,21] 6. B M Gandhi, Law of Torts, EBC, Lucknow, 2002. [ Chapter 18] 7. R K Bangia, Law of Torts, 8th Edn- 2005, Allahabad Law Agency, Haryana. [Chapter 15]

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MODULE VIII DECIET According to Salmond the tort of deceit consists in the act of making a willfully false statement with the intent that the plaintiff shall act in reliance on it and with the result that he does so act and suffer harm in consequence. The origin of this tort can be traced back from the decision in Pasley v. Freeman when a person knowingly make a false statement of fact with an intent to induce another to act upon it and when the other suffers damage by acting upon the same the former is said to have committed the tort of deceit. There are four main elements in this tort: 1. There must be a false representation of fact: In order to make the defendant liable for this tort there must be a false statement of fact. Here three points to be noted a) the false statement may be made either by words or by conduct b) the defendant must have made a false statement; a mere passive non-disclosure of the truth however deceptive in fact does not amount to deceit in law. In the absence of a contractual duty to speak no such duty can arise in tort 1) the non disclosure of a part of the truth may make the statement of the residue positively false 2) Active concealment of fact is equivalent to a positive statement that the fact does not exist. 3) As it is an actionable fraud to leave uncorrected a false statement which is ultimately acted on by the plaintiff to his detriment it follows that if the defendant makes a statement which he believes to be true and he after words discovers that it is false before it has been acted on by the plaintiff or if he makes a statement which is true when made but becomes false to his knowledge before it has been acted on , it is his duty to disclose the truth 4) In certain cases there is a statutory duty of disclosure the breach of which is apparently an actionable fraud.
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c) the misrepresentation must be a false statement of fact and not a mere broken promise. Silence amount to a representation when it is ones duty to speak.

2. The representation must be made with the knowledge of its falsity A false statement is not actionable in deceit as distinct from in negligence unless it is willfully false. So in order to make the defendant liable the representation must be made with the knowledge that it is false or without believing in its truth. This was established by the House of Lords in Derry v. Peak140. In this case the directors of a tramway company which had authority to use steam power with the consent of the board of trade, believing honestly but unreasonably that this consent would be given as a matter of course issued a prospectus in which it is stated that they had the right to use steam power without reference to any condition. In reliance to this statement plaintiff took shares in the company. The promoters were held not liable in damages on the ground that there was no proof that the error was fraudulent. This rule in Derry v. Peak is subject to 8 exceptions:
1. Liability under Hedley Burne v. Heller141. In this case the court held that there was no difference

between physical injury and financial loss, if it caused by a negligence. So a representation which caused some financial loss due to the defendants negligence where considered as a false representation.

140

(1889) 14 AC 337 1964 AC 465

141

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2. Physical harm: the rule in Derry v. Peak does not apply to cases in which there is a physical harm caused to the plaintiffs person or property. 3. If there is a contractual duty to take care in making statements the rule in Derry v. Peak is excluded. 4. Fiduciary relationship 5. Warranty of authority: every person who purports to act as agent of another is deemed in law to have entered into an implied contract of warranty of authority with any person who contracts or otherwise deals with him in reliance on his authority. 6. Estoppels: the rule of estoppels by representation is not affected by Derry v. Peak and may in certain cases so operate as to impose liability in damages for a false statement which is not fraudulent. 7. Statutory duty
8. Principals liability for fraud of agent: it was established in the case London County Freehold

Properties v. Berkely Property co. ltd142 case. It must be made with the intention that it should be acted on by plaintiff or by a class person which includes the plaintiff in the manner which resulted in damage to him. It must be proved that the plaintiff has acted upon the false statement has sustained damage by so doing. DETINUE Detinue consists in withholding the immediate possession of goods from one who is entitled to it. Detinue or detention comes from the Latin root detinet. It is the adverse withholding of the chattels of another. When the defendant is wrongfully detaining the goods belonging to the plaintiff and refuses to deliver the same on lawful demands the plaintiff can recover the same by bringing an action for detinue. It is thus an action for the recovery of goods unlawfully detained by the defendant.
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(1936) 2 All ER 1039

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In England by the passing of Torts (Interference with Goods) Act, 1977 detinue has been abolished. In India although detinue as such has not been mentioned as a wrong but similar action for recovery of specific movable property has been recognized by the Specific Relief Act, 1963 (Sec. 7,8) See Banshi v. Govardhan AIR 1976 MP 125

CONVERSION Conversion is said to have been committed where a person intermeddles with the property of another. In other words a person who treats goods as if they were his when they are not, is liable to be sued in conversion. According to Salmond conversion is an act of willful interference without lawful justification with any chattel in a manner inconsistent with the right of another whereby that other is deprived of the use and possession of it. The expression willful interference in the definition means that the element of intention is necessary in constituting the tort of conversion. Conversion may be committed in many ways: a) Conversion by taking goods b) Conversion by wrongful detention of goods c) By wrongful delivery of goods d) By wrongful disposition of goods i.e. transfer of ownership to another e) By wrongful destruction f) By miscellaneous forms of conversion A person is guilty of conversion who in any other way than those mentioned above causes the loss of chattel by any act of willful interference without lawful justification. In tort of conversion, for establishing liability it is not necessary that to show that the defendant has in physical possession of the goods in any time. Defences Jus tertti: the defendant can plead that some third party has superior title to that of plaintiff. This defence is subject to 3 exceptions: a) where the plaintiff was in possession of the goods at the time of coversion,
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the defendant cannot plead jus tertti b) where the plaintiff was not in actual possession of goods at the time of conversion but only a right to possess, in such case the defendant can plead jus tertti c) a bailey is estopped from setting up the title of an owner who does not authorize him to make the claim on his behalf. Remedies Redelivery Damages TRESPASS AND CONVERSION 1. If the plaintiff alleges trespass he needs to prove only of taking of a thing but if he alleges conversion he need to show that the taking was as adverse exercise of dominion. 2. Trespass may include damaging the goods of another without any intention for adverse possession but conversion is breach made adversely in continuity of the owners dominion over the chattel INDUCING BREACH OF CONTRACT It is tortuous to knowingly and without lawful justification induce one person to make breach of a subsisting contract with another as a result of which that other person suffers damages. This was established in Lumely v. Gye143. In this case Johanna Wagner, a famous operatic singer was under a contract to sing for the plaintiff. The defendant paid her a large sum of money to induce her to break her contract with the plaintiff and to sing for the defendant. The defendant was held liable. This tort may be committed in various ways: a. By direct inducement b. By doing some act which renders the performance physically impossible.
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(1835) 2 E & B 216

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For e.g. physical detaining one of the parties to the contract or removing the tools which are necessary for the performance of the contract with a view to preventing the performance of the contract. Knowingly doing an act which if done by one of the parties to the contract would have been a breach of the contract. Fro e.g. in GWK Ltd v. Dunlop Rubber co. ltd144, GWK Ltd who were the manufactures of cars had entered into a contract with A co. that all the cars manufactured by the former were to be fitted with the tires manufactured by the latter whenever the cars sent to exhibitions. When the cars were sent to an exhibition, Dunlop Rubber co. knowing about the above stated contract, secretly removed such tires from two of the cars and replaced them with the tires of their own manufactures. The defendants Dunlop Rubber Co. were held liable towards A co. The tort of inducement of contract is subject to the following exceptions: 1. There is no wrong to persuade a person to refrain from entering into a contract. See Genu Ganapati v. Balachand Jivaraj AIR 1981 Bom 170 2. Inducing breach of such agreements which are null and void is not actionable. 3. Inducing the breach with a justification is good defence.

INTIMIDATION It is now established as a tort. It signifies a threat to deliver by A to B whereby A intentionally causes B to act or refrain from acting either to his own detriment or to the detriment of C. The essence of this tort is the use of unlawful threats. It was established in Rooker v. Barnard145, in this case the plaintiff was employed as draughtsman by the British Overseas Airways Corporation (BOAC) in their design office at
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(1926) 42 TLR 376 1964 AC 1129

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London airport. The defendants were the officials of the Association of Engineering and ship building Draughtsman (AESD) a registered trade union. All members of the union had contacted with BOAC that they will not resort to any strike in the event of dispute. The plaintiff resigned the membership of the union and on his refusal to rejoin the union, in the design office passed a resolution and thereby decided to inform the BOAC that if the plaintiff was not dismissed the members of the AESD union will withdraw their labour. The BOAC was informed of the resolution by the defendants. In due course the corporation acceded to the threat and dismissed the plaintiff after giving him due notice. It was held by the House of Lords that the threat to withdraw labour if the plaintiffs services were not terminated constituted an intimidation and since the plaintiff suffered thereby he was entitle to succeed in his action. CONSPIRACY When two or more persons without lawful justification, combine for the purpose of willfully causing damage to the plaintiff and actual damage results there from they commit the tort of conspiracy. It is both a tort and a crime. In Mugal Steamship Co. v. Mc Gregor146 case it was held that there is no conspiracy. PASSING OFF It is the wrong committed by a person who sells goods or carries on business etc. under such a name, mark, description or otherwise in such a manner as to mislead the public into believing that the goods or business etc. are those of another person. The latter has a right of action in damages or for an account and for an injunction to restrain the defendant for the future. It is a wrong by which a trader was deceptive devices to push up his sales and allows his goods to pass off under the impression that the goods are of some person.er person can make use of the same. The purpose of this tort is to protect the goodwill which a commercial concern may have earned, so that no other person can make use of the same. It is complimentary to the trade mark law. In the case of a trademark, the registered trade mark is the monopoly of a person and nobody can interfere with the right

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1892 AC 25

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by using that mark. In case of passing off the interest protected is the general good will which a trader may have earned by his trade name or particular mark, design, getup or colour of his goods etc. An action for the tort of passing off involves a combination of two elements: 1. That certain name had become distinctive of the plaintiffs goods and 2. That the defendants use of that name was likely to deceive and thus cause confusion and injury to the business reputation of the plaintiff. In Ellora Industries v. Banarssi Das147, the plaintiff, Banarassi Dass and Brothers were the registered proprietors of the trademark ELLORA in respect of watches, time pieces clock and their parts. They had been selling clock under this trade name since 1955. The defendants manufactured timepieces with the trade mark Gorgon printed on the dial of the time pieces. On the card board containing the timepiece was printed ELLORA INDUSTIRES adopted it as their trading style in 1962. The Plaintiff brought an action requesting for an injunction to restrain the defendants from using the mark ELLORA or any other similar mark which they contended is similar to their registered trademark and to prevent them from passing off their goods as the goods of plaintiff. It was held that this was a clear case of passing off so allowed an injunction. See Kalanikethan Case AIR 1983 Del.161 Virendra Garments v. Virendra Garments AIR 1982 Del. 482 REMEDIES a. Injunction b. Damages
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AIR 1980 Del 254

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See Pidilite Industries case AIR 1989 Del 157.

Passing off and Deceit In an action for deceit there is deception of the plaintiff who alleges that he himself has been misled by the statement whereas in passing off the deception is not that of the plaintiff but by somebody else. In an action foe deceit, the plaintiff claims compensation for the loss caused to him as a consequence of his being deceived, but in an action for passing off the plaintiff seeks to protect his proprietary right in his good will or business which is threatening by t e deception or confusion of others The wrong of deceit is constituted when the plaintiff has been actually deceived whereas I an action for passing off the likelihood of the deception of or confusion amongst others is enough. Since in deceit the caution can be brought only when the wrong is completed an action for a damages is the only and the popper remedy. Whereas an action for passing off can be brought even though there is likelihood of there being deceived or confused the remedy of injunction is also available for the same. MALICIOUS FALSEHOOD Malicious falsehood consists in making malicious statements concerning the plaintiff to some third person adversely affecting the pecuniary interest of the plaintiff. It is a category of wrongs constituted by the communication of a false statement of a prejudicial nature affecting a person not or at least not directly and immediately in his honor or reputation but in his property. Injurious falsehood according to Flemming is an interference with economic relations of the claimant committed by the defendant by oral or written a falsehood published maliciously and calculated to cause him pecuniary loss. Important forms of this wrong are slander of goods and slander of title
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Slander of title It is a false and malicious statement about a person, his property or business which inflicts damage not necessarily on his personal reputation but on his title to property or on his business or generally on his material interests (Winfield) for e.g. false assertion that the defendant has a lien over the plaintiffs goods or he has a better title than that of plaintiff is slander of title.

Essentials: 1. That the statement published was untrue o r false 2. That the same was malicious and 3. That there is damage suffered by the plaintiff. See Nemichand v. Wallace ILR (1907) 34 Cal. 495 Imperial Tobaco Co. v. Albert Bonnan AIR 1928 Cal.1 Slander of goods It is a false and malicious statement whether by word or by mouth or in writing with refence to goods manufactured and sold by the plaintiff. For e.g. allegation of defects, etc. the law permits making of statement however false and malicious whereby a trader claims his goods to be better than this of his rival trader but makes it actionable when there is false and malicious depreciation of the quality of another goods. Essentials
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1. That the statement complained of was made of and concerning his goods 2. That it was false 3. That it was published maliciously and That he has suffered social damage thereby See Hargovind v. Kika Bhai AIR 1938 Nag 84.

MALICIOUS FALSEHOOD AND DEFAMATION 1. Malicious Prosecution is an attack upon pecuniary interest of plaintiffs. Defamation is an attack upon plaintiffs reputation 2. In malicious falsehood proof of damage is necessary. Latter is a tort of actionable perse 3. In malicious action for damage to estate survives to plaintiffs executors. But in Defamation it is subject to action personalis moritur cum persona. ***************************************

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Suggested References:

1. W V H Rogers, Winfield & Jolowicz Tort, 17th Edn-2006, Sweet & Maxwell, London.[Chapters 17, 18] 2. RFV. Heuston & RA Buckly, Salmond and Heuston on Law of Torts , 20th Edn- 1992, Universal Law Publishers, Delhi. [Chapters 6,16, 18] 3. Vivienne Harpwood, Principles of Tort Law, 4th Edn- 2000, Cavendish Publishing Limited, London. [Chapters 17, 18] 4. B M Gandhi, Law of Torts, EBC, Lucknow, 2002. [Chapters 15,21] 5. SP Singh & Indrajith Singh, Law of Torts, 4th Edn 2006, Universal Law Publishers, Delhi. [Chapter 11]

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6. R K Bangia, Law of Torts, 8th Edn- 2005, Allahabad Law Agency, Haryana. [Chapters 18,19,20] 7. Ratanlal & Dhirajlal, The Law of Torts, 25th Edn- 2006, Wadhwa, Nagpur. [Chapter 21]

MODULE IX REMEDIES The rule of law requires that wrongs should not remain unreddressed. All individuals or persons committing wrongs should be liable in an action for damages for breach of civil law or for criminal punishment. The law of tort is founded on the principle that every injury must have a remedy. The edifice of tort law thus stands upon the well-known maxim ubi jus ibi remedium. Remedies make good the default of one party. In the words of John Burke remedy is the means by which the violation of a right is prevented, redressed or compensated. There are two kinds of remedies for torts, namely judicial and extra-judicial. Judicial remedies are remedies which are afforded by the courts of law while extra judicial remedies are those which are available to a party in certain cases of torts, by his own acts alone. JUDICIAL REMEDIES Damages

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Damages are the pecuniary compensation payable by one person to another for injury, loss or damage caused by one to the other by breach of legal duty or commission of tort. When the plaintiff suffers loss or injury due to the wrongful act of the defendant then he is entitled to receive damages from the defendant. Types of damages Compensatory: tort law seeks to fully compensate the victim. The underlying principle is expressed by the term restitution in integrum. This is explained by Lord Blackburn in Livingstone v. Raywards Coal Co148. as the sum of money which will put the party who has been injured or who has suffered in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation. The aim is therefore to award a sum in compensation to the claimant which put the claimant in his or her pre tort position. Contemptuous damages: these damages are awarded when it is considered that the plaintiff should not have brought an action against the defendant. Here the plaintiff may technically right but morally wrong. When the plaintiff has technically a legal claim but there is no moral justification for it, the court may award a penny or a paise showing disapproval of the conduct of plaintiff. These types of damages are also called derisory damages. In these cases the chances of getting costs are very little for the successful plaintiff. Nominal damages: they are token amount which are recognizes that the claimants legal right has been infringed but that no actual damage has been caused. They are therefore generally will apply to torts actionable perse i.e. without proof of damage such as trespass to the person or land and libel etc. An award of nominal damages should not affect the ordinary rule as to costs as it does not indicate any negative finding. Aggravated damages: these form a further level of compensatory damages granted by the courts to compensate for additional mental distress inflicted on the claimant due to the malicious, high handed,

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1984 NI 356 NICA

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insulting or oppressive conduct of the defendant. The manner in which the tort is committed or the motives of the defendant may therefore justify an award of aggravated damages. Exemplary or punitive damages: they are a form of damages which punish the defendant for his or her conduct an attempt to deter the defendant and others from undertaking such conduct in future. Punitive damages are concerned with the conduct of the defendant rather than the damage suffered by the claimant. According to Lord Delvin, exemplary damages can be awarded in the following three exceptional cases: a. Oppressive, arbitrary or unconstitutional actions by government servants b. Conduct calculated by the defendant to make a profit which may well exceed any compensation c. When expressly authorized by a statute.

REMOTENESS OF DAMAGES When a tort is committed the question of defendants liability arises. Defendants liability in any case must have limits or else a person would be ruined. No person is responsible adinfinitum for consequence of his act. According to Salmond there are certain class of cases in which the plaintiff fails because the chain of causation connecting the defendant act with the damage resulting it is of such a nature that the law for some reasons refuses to regard it as sufficiently continuous for liability. Damage of this kind is said to be too remote. Between the defendants act and plaintiffs damage some third factor has intervened. For example a cyclist negligently hits a pedestrian who was carrying a bomb in his pocket. When the pedestrian is knocked down, the bomb is exploded. The pedestrian and four other persons going on the road died and ten other persons are seriously injured due to the explosion. A building nearby is set on fire due to the same explosion and some women and children therein are sevelry injured. The question is can the cyclist be liable for all these consequences? He is liable only for those consequences which are not too
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remote from his conduct. Then the question is what is meant by this too remote consequence? How will you determine? Until 1850 in England the principles of damage laid down by the courts are not harmonious and the courts either took refuge in scraps of scholastic logic about causa causans and causa causta or indulged in the mistiest generalities such as he that dose the first wrong shall answer for consequential damages or the damages must be the legal and natural consequences of the wrongful act. Since 1850 two competing views of the test of remoteness of damage have appeared in the law. According to first, which was propounded by Pollock, consequences are too remote if a reasonable man would not have foreseen them. According to the second if a reasonable man would have foreseen any damage to the plaintiff as likely to result from his act then he is liable for all direct consequences of it suffered by the plaintiff whether a reasonable man would have foreseen them or not. Thus there arise two main tests to determine whether the damage is remote or not. They are: Test of reasonable foresight: According to this test if the consequences of a wrongful act could have been foreseen by a reasonable man they are not too remote. If on the other hand a reasonable man would not have foreseen the consequences they are remote. In Rigby v. Hewit and Green land V, Chaplin149, Pollock CB stated that the liability of the defendant is only for those consequences which could have been foreseen by a reasonable man placed in the circumstances of the wrongdoer. According to this test, if I commit a wrong I will be liable only for those consequences which I could have foreseen is too remote a consequence of my wrongful act.

The test of directness:

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(1850) 5 Ex 240; (1864) 5 B & S 970

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According to the test of directness, a person is liable for all the direct consequences of his wrongful act whether he could have foreseen them or not, because the consequences which directly follow a wrongful act are not too remote. The first authority for the view advocating directness test is the case of Smith v. London & South Western Rly Co150., the railway co. was negligent in allowing a heap of trimmings of hedges and grass near a railway line during dry weather. Spark from the railway engine set fire to the material. Due to high wind, the fire was carried to the plaintiffs cottage which was burnt. The defendants were held liable even though they could not have foreseen the loss to the cottage, because it was a direct consequence of the defendants act. The above position was accepted in Re Polemis and Furness Withy & Co151. case. In this case the defendants chartered a ship. The cargo to be carried by them included a quantity of Benzene in tins. Due to leakage in those tins some of their contents collected in the hold of the ship. Owing to the negligence of the defendants servant, a plank fell into the hold a spark was caused and consequently the ship was totally destroyed by fire. The plaintiffs were entitled to recover damages because it is being a direct consequence of the defendant act. The test of directness has been rejected by the Privy Council in Overseas Tank ship (UK) Ltd v. Morts Dock and Engg Co. Ltd (Wagon Mound Case)152. In this case the Wagon Mound an oil burning vessel was chartered by the appellants, Overseas Tank ship Ltd, and was taking fuel oil at Sydney Port. At a distance of about 600 feet the respondents, Motor Docks Co. owned a wharf, where the repairs of a ship including some welding operations were going on. Due to the negligence of appellants servants a large quantity of oil was spilt on the water. The oil which was spread over the water was carried to the respondents wharf. About 60 hours thereafter, molten metal from the respondents wharf fell on floating cotton waste which
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(1870) 3 KB 577 (1921) 3 KB 560 1962 AC 388

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152

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ignited the fuel on the water and the fire caused great damage to the wharf and equipment. It was also found that the appellants could not foresee that the oil so spilt would catch fire. The trail court applied the rule of directness and held the OT Ltd liable. The Supreme Court of the New Southwales also followed the Re Polemis rule, held OT liable. On an appeal the Privy Council held that the Re Polemis was no more good law and reversed the decision of the Supreme Court. The judicial committee of privy council stated that the decision in Re Polemis was objectionable on the ground that it does not seem consonant with current ideas of justice or morality that for an act of negligence, however slight or venial which results in some trivial foreseeable damage to the actor should be liable for all consequences however unforeseeable and however grave so long as they can be said to be direct. It is a principle of civil liability subject only to qualifications which have no present relevance that a man must be considered to be responsible for the probable consequences of his act. To demand more of him is too harsh a rule to demand a less is to ignore that civilized order requires the observance of a minimum standard of behavior. Thus it held that the test of reasonable foresight is the better test. The test of reasonable foresight as laid down in this case was followed in Hyghes v. Lord Advocate153 Doughty v. Turner Manufacturing Co. Ltd (1964) 1 AllER 98 SCM (UK) Ltd v. WJ Whittal & sons (1971) 1 QB 337 However there are several situations where the test of reasonable foresight was not applicable they are: a) when the tort is one of strict liability b) when the claim is under the Fatal Accidents Act c) when the claim is for breach of a Strict Statutory Duty d) when the claim for fraud e) when the damage which was occurred, although foreseeable is not damage of a kind against which it was the duty of the defendant to guard f) when the defendant cannot be said to have caused the damage although that damage was in face foreseeable g) when the damage which has been caused in damage of the same type or kind that might have been foreseen h) Egg-Shell rule: This rule provides that the amount of damage
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(1963) 1 All ER 705

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not to be foreseen so far as the physical condition of the victim is concerned, abnormal circumstances existing at the time of wrongful act do not negative casual connection. So if the consequence of a slight personal injury are aggravated by the state of health of the person injured the wrongdoer is nonetheless liable to the full extent, though he had no knowledge of that state of health and no reason to suspect it. So in the leading case of Smith v. Leech Brain & Co. Ltd154, it was held that if a victim of a negligent act suffers from a pre-cancerous condition which is activated by that act, the wrong doer is responsible for all the disastrous consequences. This is always known as the Egg-Shell rule. The decision in the Wagon Mound case according to the strict doctrine of precedent is binding only upon some tribunals in the commonwealth and is of only persuasive authority in the final appellate authority in UK. Thus effect of the rule in Wagon Mound case is still doubtful. But whatever be its binding nature the House of Lords, court of appeal and high court expressly stated the Re Polemis law is no longer good, that the wagon mound is the governing authority. So the test of reasonable foresight is the real test to find out remoteness of damage at present. MEASURE OF DAMAGE Measure of damage is the determination of how much money is to be ordered to be paid by a defendant to a plaintiff in compensation for loss or harm caused by the formers breach of duty. In general damages are measured by fair compensation not as punishment. Damages are assessed under two heads: general damages and special damages. General damages flow from the general damage or kind of harm and loss which naturally and normally follow from the wrong and which do not need to be specifically pleaded and proved as in cases of personal injuries for pain and suffering loss of limbs and damage to health. The special damages flow from such kind of loss as will not be legally presumed to have followed from the defendants wrongful act but which must be specifically claimed in the pleadings and be proved by evidence to have been incurred by reason of the defendants breach of duty. Quantum of damages in personal injury cases

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(1962) 2 QB 405

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The amount to be awarded cannot be precisely defined but it must be fair and reasonable. Damages fall into two divisions: Sufferings: it is the distress which is not felt or being directly connected with any bodily condition. Loss of Amenities and enjoyment : it denote inconvenience and curtailment of the enjoyment of life not on account of any positive unpleasantness born out of pain and suffering but in a more negative way because of the inability to pursue the ordinary activities of life Rule of double action Damages resulting from the same cause of action must be recovered once for all. More than one suit will not lie on the same cause of action. But there are some exceptions provided, they are: a. Where same act violates two rights b. Where cause of action is continuing one c. Two distinct act violating the same right d. Where damage occurs at different times INJUNCTION An injunction is an order made by the court forbidding a person or class of persons from doing a certain act or acts of certain class, upon pain of going to prison as contemnors of the court. It is an order of the court directing the doing of some act or restraining the commission or continuance of some act. Injunctions are of 4 kinds: Temporary and perpetual: a temporary injunction is such as it is to continue until a specified time or until the further orders of the court. A perpetual injunction is one by which the defendant is perpetually enjoined from the commission of an act which could be contrary to the rights of the plaintiff.
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Prohibitory and mandatory injunction: Prohibitory injunction forbids the defendants from doing an act which will interferes with the plaintiffs lawful rights. Mandatory injunction is an order which requires the defendant to do some positive act. Sec.36 of the Indian Specific Relief Act, 1963 dealing with this remedy SPECIFIC RESTITUTION OF PROPERTY. Any person disposed of his immovable property or movable property without his consent and otherwise than in due course of law is entitled to recover possession thereof. There are two methods Action for ejectment: for the recovery of immovable property this is the remedy, which provides under section 6 of Indian Specific Relief Act, 1963. Action for detinue: it is for recovery of movables property which provides under sec7 of Indian Specific Relief Act, 1963.

CONSTITUTIONAL REMEDIES As per article 32 and 226 of Indian Constitution the following remedies are available: a. Writ of habeas corpus b. Writ of Certiorari c. Writ of Mandamus d. Writ of Prohibition e. Writ of Quo Warranto

EXTRA-JUDICAIL REMEDIES
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1. Self help. 2. Expulsion of trespasser 3. Re-entry on land 4. Reception of goods 5. Abatement of nuisance 6. Distress damage feasent: According to Salmond, it is lawful for any occupier of land to seize any chattels which are unlawfully upon his land and have done or doing damage there and to detain them until payment of compensation for the damage done. This right is known as distress damage feasent

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Suggested References:

1. W V H Rogers, Winfield & Jolowicz Tort, 17th Edn-2006, Sweet & Maxwell, London. [ Chapter 22] 2. RFV. Heuston & RA Buckly, Salmond and Heuston on Law of Torts , 20th Edn- 1992, Universal Law Publishers, Delhi. [ Chapter26] 3. Paula Giliker & Silas Beckwith, Tort, 2ndEdn- 2004, Sweet & Maxwell, London. [Chapter 6]

4. SP Singh & Indrajith Singh, Law of Torts, 4th Edn 2006, Universal Law Publishers, Delhi. [ Chapter 6] 5. B M Gandhi, Law of Torts, EBC, Lucknow, 2002. [ Chapter 8] 6. R K Bangia, Law of Torts, 8th Edn- 2005, Allahabad Law Agency, Haryana. [Chapters 6,23] 7. Ratanlal & Dhirajlal, The Law of Torts, 24th Edn-2004, Wadhwa, Nagpur. [Chapter 9]

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MODULE NEW AND EMERGENT TORTS CYBER TORTS

Cyber interests are also required to be protected by extending the principles of liability under torts and adding new Pigeon holes to the expanding tree of the law of torts. With new violations of this medium possible violation like cyber porn, cyber obscenity torts, misrepresentation on internet passing off, copy right violations and cyber defamation, increase the significance of the law of torts. Electronic transfer of money from accounts by cheating, developing a computer virus to crash valuable data of corporations or individuals are some of the new crimes that are required to be defined and make wrongdoer accountable for the payment of damages also. TYPES OF CYBER TORTS Cyber stalking It occurs when a person is followed and pursued online. In other words their privacy in invaded. It is a form of harassment and can disrupt the life of the victim leaving them feeling afraid and threatened. When harassment and stalking occurs over the internet it is known as cyber stalking. It casually occurs with women and children, who are stalked by adult predators or pedophiles. A cyber staker does not have to leave home to find or harass his targets and has no fear of physical violence, since he believes he cannot be physically touched in cyber space. He could be anyone ranging from a total stranger to a relative. Two different kinds of cyber stalking situations are: a. Online harassment t and cyber stalking that occurs and continuous on internet.

b. Online harassment and stalking that begins to be carried on offline too. For instance when a stalker attempts to trace a telephone number or a street address. All the state in USA except Maine have enacted Anti stalking laws. Many states have both criminal as well as civil anti stalking laws. For e.g. 42 USC s 3796, 42 USC s 14031, 42 USC s 14036 etc.

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In India there is no specific legislation to tackle cyber stalking. Indias first cyber law the Information Technology Act, 2000 does not contain any provision relating to cyber stalking.

Cyber breach of privacy With the advent of multi channel television all over the world and fast spreading internet network, the privacy of an ordinary person is increasingly under threat. Breach of privacy is the kind of cyber tort which affects a common man. The following may be the key issues of concern when one comes across privacy related issues: a. Interception via wire tapping the phone line on the senders end. Emailing may thus be conveniently intercepted in such a manner.

b. Disclosure of contents c. Disclosure of essential data while registering onto a particular domain such as a chatting site, where precautions and registration policies for the surfer are not conveniently outlined. Sec.71 of the Information Technology Act, 2000 prohibits interception of emails during transit. Similarly reading emails during storage on a computer system is also prohibited by the aforesaid section read with sec. 43 of the act. Cyber obscenity One of the major side effects of cyber revolution is spread of obscenity. Cyber space offers a very high potential scope for pornography and makes children and women vulnerable to trafficking. Western countries have made an attempt to control and regulate cyber obscenity but their strong freedom laws prevailed and media regulation failed. However cyber child pornography and obscenity addressed to minors is a serious crime as per the recently enacted laws in the USA and other countries also. Though in India has no specific legislation to tackle this problem the criminal law along with IT Act covers the field. The law creates a duty on every server and media for not to harm with the interest of children with spread of pornography, a breach of which could be a potential tort leading to an action for heavy damages. 128

Cyber defamation Due to the expansiveness of the internet for a, defamation is quite possible. The ingredients of cyber defamation are not drastically different from those of ordinary tort of defamation except for the penetrating reach and uncontrollable speed in the case of the former.

TORT OF SEXUAL HARASSMENT AT WORK PLACE This form of action was established by the Indian Supreme Court in the Vishaka case155. The court held that every incident of sexual harassment of women in work places results in the violation of the fundamental rights of gender equality and right to life and personal liberty under articles 14, 15, and 21 of the constitution Remedies 1. Damages 2. Transfer of the defendant TORT OF DOMESTIC VIOLENCE This tort was created by the Protection of Women from Domestic Violence Act, 2005. It provides remedies to a woman when the family members injure her. Remedies 1. Compensatory cost and exemplary or punitive damages

155

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ENVIRONMENTAL TORTS The tortious liability for environmental wrongs emerged out of public nuisance. The entire law on enviornemtaln protection is an offshoot of the liability for nuisance under the law of torts. The expansion of the scope of the environmental torts or mass tort is evident with the evolution of the absolute liability rule in MC Mehta case, imposing constitutional obligation on the polluter Article 21 includes the right to unpolluted environment by implication. Article 47 directs the state to improve the living standards and public health. Article 47A imposes a duty on the state to protect and improve the environment. National Environment Tribunal Act, 1995: This act has translated the rule in MC Mehta into legal provision. This law provides for strict liability for damages arising out of any accident occurring while handling any hazardous substance and for the establishment of national environment tribunal for effective and expeditious disposal of cases arising from such accident, with a view to giving relief and compensation for damages to victims. Section 3 says that a claimant making a claim for compensation shall not be required to plead and establish that the death, injury or damage was due to any wrongful act, neglect or default of any person. According to the schedule to the Act, compensation or damages may be claimed for death, permanent or temporary injury, total or partial disability or other injury or sickness, loss of wages, medical expenses, damage to private property, expenses incurred by the government, loss to government, damage to animals, aquatic fauna, flora, corps, vegetables, trees and orchards, cost of restoration on account of harm to environment including pollution of soil, air, water, land and ecosystems, loss and destruction of any property, loss of business or employment or both and any other claim arising out or connected with hazardous substances. The environmental torts or tort of environment was created by the National Environment Tribunal Act, 1995 BREACH OF CONFIDENCE It is committed when the person in whom confidential information reposes (the confident) makes use of or discloses to others the information in question to the detriment of the plaintiff (the confider). Past breach of confidence may be remedied by an action for damages in tort or by taking an account of the profits made by the misuse or disclosure. Apprehended future breaches may be restrained by an injunction. 130

The obligation of confidence may arise from an express or implied term in a contract of employment as when a company discovers that an ex employee has set up his own company in the same area and appears to be using confidential information (e.g., lists of customers) acquired in his former employment. ABUSE OF GOVERNMENTAL POWERS Today the wrongful exercise of power by an official of the central or local administration can cause harm to a citizen in a way or on a scale which would not be possible for a private defendant. But a citizen so aggrieved cannot recover compensation by the public law remedy of judicial review. So the plaintiffs are entitled to get compensation under law of torts INFRINGEMENT OF STATUTS. In the modern world a person may suffer serious loss by reason of his expulsion from a trade union or trade association or the revocation of a license which is necessary to carry on his trade or profession Remedies: 1. Damages 2. Injunction 3. Declaration of right to continue a particular capacity INNOMINATE TORTS It means the intellectual infliction of temporal damage gives rise to a prima facie cause of action which requires some justification by the defendant if he is to escape from liability. In United States this is called prima facie tort doctrine. It was established by Lord Bowen, Frederick Pollock and Lord Delvin through their various observations in different cases. Euro torts

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Under article 85 and 86 of the Treaty of Rome conduct constituting undue restriction of competition and abuse of dominant position may be a tort in England for which damages and not merely a declaration or injunction can be obtained. Constitutional torts: See the Article: Dr. Usha Ramanathan, Tort Law in India, Annual Survey of Indian Law, 2001, Pp.615-28(2002)

Suggested References:

1. A Laxminath & M. Sridhar, Ramaswamy Iyer: The Law of Torts , 19th Edn- 2007, Lexis Nexis, New Delhi. [Chapters 2,3,4] 2. RFV. Heuston & RA Buckly, Salmond and Heuston on Law of Torts , 20th Edn- 1992, Universal Law Publishers, Delhi. [ Chapter 3]

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MODULE XI EXTINCTION OF TORTIOUS LIABILITY The plaintiff may exercise his vested right of action, which depends upon establishing a legally recognized harm and the plaintiffs claim for the appropriate remedy, with in time appointed by the law of limitation. If he fails to do so, either because of his indolence, passivity or fatalistic thinking the law is helpless to lend its assistance to state demands A right of action vested in the plaintiff comes to an end under the following circumstances: 1. BY WAIVER When an injured party has more than one remedy available to him and he elects to pursue one of them he is deemed to have relinquished the other, that is the other remedy is waived by election. He cannot pursue them if he fails in one elected. Waiver is express or implied, express waiver is when the person entitled to anything expressly and in terms gives it up in which case it nearly resemble release. Implied waiver is when the person entitled to anything does or acquiesces in something else which is inconsistent with that to which he is so entitled. Waiver is not that of a tort but of a remedy. 2. ACCORD AND SATISFACTION

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An accord is an agreement between two or more persons, one of whom has a right of action against the other that the latter shall render and the former accept some valuable consideration in substitution for the right of action. Accord indicates the agreement and satisfaction the consideration which makes it operative when the agreement is executed and satisfaction has been made the agreement is a called accord and satisfaction and operates as a bar to the right of action. An accord and satisfaction in favour of one of joint tort feasors operates in favour of them all when the injury is one and indivisible. An accord without satisfaction does not bar their right of action 3. RELEASE A release is the giving up or discharging of the right of action which a man has or may have against another man. But a release executed under a mistake or in ignorance of ones rights or obtained by fraud is not valid. 4. ACQUIESCENCE Where a person who knows that he is entitled to enforce a right neglects to do so for a length of time, the other party may fairly infer that he has waived or abandoned his right. But to deprive a man of his legal remedies there must be something more than mere delay. Direct acquiescence takes away the right of action. For e.g. right to a property ends when that property transferred in favour of defendant

5. JUDGMENT RECOVERED The cause of action against a wrong doer in respect of a wrong is extinguished by a judgment obtained in a court of law. 6. LIMITATION One who sleeps upon his rights will lose his remedies that is to say the remedies accompanying the rights will slip away from him rendering the right incomplete, ineffective and incapable of enforcement in a court of law In England the Limitation Act, 1980 fixes the time during which actions for tort must be brought. As per this Act action for a tort should be brought within a uniform period of six years and in the case of defamation, there is one year limitation period and in case of personal injuries within 3 years from the date of accrual of the cause of action. 134

In India the period of limitation were dealt in the Limitation Act, 1963. Though the period of limitation is prescribed under these statutes the court can at its discretion extent the period for setting up a law in motion for a claim. 7. ASSIGNMENT The general rule is that actions in tort are not assigned on grounds of public policy. According to Salmond the rule of non-assignability applies to torts of all kinds while according to Winfield property can be lawfully assigned. In India as per sec. 6 of Transfer of Property Act, 1882 a mere right to sue cannot be transferred. DEATH The general rule at common law was that tortious rights and liabilities were extinguished by the death of the plaintiff or of by the death of the defendant respectively. This rule was based on the maxim actio personalis moritur cum persona, which means rights and duties of the plaintiff or of the defendant ended on their death respectively. This rule is relevant in India also and the same is explained in a decision of the National Commission in a consumer complaint in Balbir singh v. Sir Ganga Ram Hospita 156l. In this case a complaint was filed against a surgeon whose blunder resulted in the death of the complaints son. While the complaint was still pending the surgeon concerned died. The National Commission applied the rule action personalis moritur cum persona and held that by the death of the surgeon the right of action had come to an end and the surgeons legal heirs cannot be held liable in the case. In EI Ltd v. Klaus Mittelbacher157, a co-pilot in Airlines stayed in Hotel Oberoi Continental, a 5 star hotel having the facility of swimming pool. While diving his head hit on the bottom of the swimming pool, which resulted in serious head injuries to plaintiff. In the single judge decision the plaintiff was allowed Rs 50 lakhs as compensation. The above decision was appealed before the division bench. While the appeal was pending, the plaintiff died. It was held that the plaintiffs suit abated on his death and therefore his legal representatives has no right to pursue the case and could not seek substitution in this case. See Official Liquidator of Supreme Bank Ltd v. PA Tendulkar (1973) 1 SCC 602

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I 2001 CPJ 45 NC AIR 2002 Delhi 124

157

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This rule had been abolished by the Law Reform (Miscellaneous Provision) Acts, 1934 in England. Section 1(1) of the act provides that on the death of any personall causes of action subsisting against or vested in him shall survive against or as the case may be for the benefit of his estate. The act recognizes an exception in respect of cause of action for defamation in which case the cause of action comes to an end on the death of either of the parties. Thus the present rule is that if a cause of action comes into existence in the life time of the parties, the death of either the plaintiff or the defendant does not affect the cause of action. It means that a subsisting cause of action survives in spite of the fact that either the parties to the action dies. In Indian the rule of actio personalis moritur cum persona had been abolished by the Indian Succession Act, 1925. Sec. 360 of the Act provides that, all demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators except causes of action for defamation, assault as defined in IPC or other personal injuries causing the death of the party and except also cases, where after the death of the party the relief sought could not be enjoined or granting it would be nugatory. This section envisages two possibilities: first where X has a cause of action suppose in negligence against Y and Y dies. In such a case Ys liability to X shall survive Ys death and can be enforced by X against Ys estate. Second where X having a cause of action against Y, dies then Xs legal representatives can sue Y or against Ys estate. As per sec. 360 of the Act the maxim actio personalis moritur cum persona still applicable where the injury is in relation to the defamation, assault, personal injuries or where the relief sought could not be enjoyed or granting it would be nugatory The Supreme Court in M. Veerappa v. Evelyn Sequiera case held that the term personal injuries under sec. 360 does not include injury of malicious prosecution Shortenening of the expectation of life: if the expectation of life is reduced due to injuries suffered by a person he is entitled to claim compensation for the same under this head. Damages under this head for the first time were allowed in 1935 in the case of Flint v. Lovell158. There the plaintiff aged 69 years but otherwise very active was injured in an accident caused due to the defendants negligence. According to the medical expert, he could not be expected to survive for more than one year now. The court of appeal allowed him compensation under this head.
158

(1935) 1 KB 354

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If the person, whose life span has been shortened, has not been able to bring an action due to his death, the cause of action survives and his representatives are allowed to bring an action for the same under the Act of 1934. It was so held in Rose v. Ford, in this case a girl of 23 years was severely injured by an accident caused by the negligence of the defendant. Two days after the accident her leg had to be cut off and 4 days after the accident she died. The father of the girl was held entitled to claim compensation for the benefit of her estate on account of pain and suffering, loss of leg and diminution in the expectation of her life. How far causing of death is actionable in tort? At common law no one can recover damages for the death of another. This is known as the rule in Baker v. Bolton159, in a civil court the death of a human being could not be complained of as an injury, meaning an actionable injury. A husband, parent or master cannot recover damages in respect of instantaneous death of wife, child or servant. In that case the defendants were the proprietors of a stage coach in which the plaintiff and his wife were travelling. The coach was upset by the negligence of the defendants whereby the plaintiff himself was much bruised and his wife was so severely hurt, that she died about a month later in a hospital. The plaintiff could recover damages for injury to himself and also the loss of wifes society and distress from the date of accident to the date of her death but could not recover anything of such loss after her death. Exceptions 1. Death due to breach of contract : Causing death of person is not actionable as a tort, but if the death is the result of a breach of a contract the fact of death may be taken into account of damages payable on the breach of contract. In Jackson v. Watson160, the plaintiff purchased a tin of salmon from the defendant. The content of tin being injurious, the plaintiffs wife died by eating some salmon from that tin. It was held that the death of the plaintiffs wife in this case had occurred due to the breach of a contract on the part of the defendant in so far as he did not provide the goods suitable for human consumption. Thus the plaintiff was therefore entitled to claim compensation for the loss of services of the wife due to her death.

159

(1808) 1 Camp 493 (1903) 2 KB 193

160

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2. Compensation under various statutes: There are various statutes making provisions for compensation on the death of a person. The examples are: Coal Mining (Subsidence) Act, 1957; Carriage by Air Act, 1961; Merchant Shipping Act, 1979 The rule in baker case was mitigated by the Lord Campells Act or Fatal Accidents Act, 1846 which was subsequently replaced by the Fatal Accidents Act, 1976. Sec. 1(1) of the Act provides: if death is caused by any wrongful act, neglect or default which is such as would (if death had not ensured) have entitled the person injured to maintain an action and recover damages in respect thereof the person who would have been liable to an action for damages notwithstanding the death of the person injured Thus an action under the Act, it is necessary that the person on account of whose death the action has been brought must himself have been entitled to bring an action if his death had not ensured. In an action by the representatives the defendant can take the same defence as he would have taken if the action was brought by the deceased Regarding an action for compensation on the death of a person the position in India is not much different from that in England. An action for compensation is permitted only on the basis of various statutes. Some of them are the Workmens Compensation Act, 1923; The Indian Railways Act, 1972; Fatal Accidents Act, 1855; Motor Vehicles Act etc. See Shashikala Bai v. State of Maharatsra AIR 1999 SC 706.

Suggested References:

1. W V H Rogers, Winfield & Jolowicz Tort, 17th Edn-2006, Sweet & Maxwell, London. [ Chapter 26] 2. Paula Giliker & Silas Beckwith, Tort, 2ndEdn- 2004, Sweet & Maxwell, London. 138

[Chapter 14] 3. B M Gandhi, Law of Torts, EBC, Lucknow, 2002. [ Chapter 7] 4. Ratanlal & Dhirajlal, The Law of Torts, 24th Edn-2004, Wadhwa, Nagpur. [Chapter 7] 5. PS Achuthan Pillai, Law of Tort, 9th Edn.-2004, EBC, Lucknow [Chapter 37]

MODULE XII Refer : Bare Acts and articles annexed to this study material.

Suggested References: 1. G B Reddy, Law of Consumer Protection, 2nd Edn- 2004, Gogia Law Agency, Hyderabad. 2. Avtar Singh, Law of Consumer Protection, 4th Edn- 2005, EBC, Lucknow.
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3. SK Verma, A. Wani, SS Jaswal, A Treatise on Consumer Protection Laws, Indian Law Institute, New Delhi, 2004. 4. V. Balakrishna Eradi, Consumer Protection Jurisprudence , Lexis Nexis, New Delhi, 2005.

MODEL QUESTION PAPER


End Term Examination

Max. Time: 3.00 Hrs. Marks: 40 Answer any Four Questions: 1. Compare the tortious liability of the defendants in the below given situations . Situation A

Max.

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The defendant a deeply religious man and owner of a house in the heart of a city set it free of rent for those who wished to use the same for religious purposes. As a result of which the house remained occupied most of the time. The music played through the loudspeaker during religious ceremonies caused constant noise and inconvenience to the neighbours. Situation B The defendant established a flour mill in a residential area, adjacent to the plaintiffs house, where he used to take coaching classes. Continuous running of the mill for long hours every day caused unpleasant noise as well as continuous vibrations which caused inconvenience to the plaintiff in taking classes. 2. A) A employs B, a surgeon to attend his infant son, C. By reason of Bs negligence C is injured. Can C sue for tort? Answer with appropriate reason and decided cases. B) A patient is brought to a hospital maintained by B. The patient is to be operated upon. As a result of faulty oxygen supply machine the patient died. Who would be liable? Answer with cases.

3.

Explain and illustrate the following statements:

a. The maxim res ipsa loquitor is not a rule of law but a rule of evidence b. A fair comment on a matter which is of public interest or is submitted to public criticism is not actionable. 4. The person who for his own purpose brings on his land and keeps there anything likely to do mischief if it escapes, must keep it in, at his peril and is prima facie answerable for all damages which is the

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natural consequences of its escape.- State the rule explained in this statement and compare with Indian Position. 5. Answer any two: a. Absolute privilege and Qualified Privilege b. Assault and Battery c. Libel and Slander d. Defect and Deficiency.

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IMPORTANT NOTE: 1. The topics and cases given above are not exhaustive. The teachers teaching the course shall be at liberty to add new topics/cases. 2. The students are required to study the legislations as amended up-to-date and consult the latest editions of books. 3. The Question Paper shall include one compulsory question consisting of five parts out of which four parts will be required to be attempted. The sample of question papers set for the examinations held during 2008-09 are printed above for guidance of the students.
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4. The Lectures indicated against each topic are the minimum teaching hours.

Further Readings:

1. Vivienne Harpwood, Lecture Notes on Law of Torts, Cavendish Publishing Limited, London, 1993. 2. Vivienne Harpwood, Modern Tort Law, 5th Edn - 2003, Cavendish Publishing Limited, London. 3. Carol Harlow, Understanding Tort Law, 3rd Edn-2005, Sweet & Maxwell, London. 4. Victor E. Schwartz, Kathryn Kelly, David F. Partlett, Torts: Cases and Materials, 10th Edn- 2000, Foundation Press, New York. 5. Tony Weir, A Case book on Tort, 10th Edn 2004, Sweet & Maxwell, London. 6. Richard Kidner, A Case book on Tort, 9th Edn-2006, Oxford University Press. 7. Micheal A. Jones, Text book on Torts, 8th Edn- 2002, Oxford University Press. 8. PS Achuthan Pillai, Law of Tort, 9th Edn.-2004, EBC, Lucknow 9. J N Barowalia, Commentary on the Consumer Protection Act, 1986 , 2nd Edn- 2000, Universal Law Publishers, Delhi.
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10.

VR Choudhari, Law of Consumer Protection, Premier Publishing Co., Bangalore, 2005.

11. Y Venkateshwara Rao, Commentary on Consumer protection Act, 1986 , Asia Law House, Hyderabad, 2005. Articles: 1. The Concept of Commercial Purpose under the Consumer Protection Act , 1994 CPJ 1 2. Gurjeet Singh, Consumer rights under Consumer Protection Act: A critique1996 CPJ 16 3. David, Medical Profession and the Consumer Protection Act, 41 JILI 1999 P.460 4. Chandrasekhar, Medical Profession and the Consumer Protection , 1994 CULR 327 5. Jaswal, Medical negligence: An analysis of recent judicial trends, 32 IBR 2005 P.99 6. Ellison, L., & Akdeniz, Y., Cyber-stalking: the Regulation of Harassment on the Internet, [1998] Criminal Law Review, December Special Edition: Crime, Criminal Justice and the Internet, pp 29-48. 7. Basu, S. and Jones, R.P., "Regulating Cyber stalking", Journal of Information, Law and Technology 2007(2) Available at http://go.warwick.ac.uk/jilt/2007_2/basu_jones/

8. Judge David Harvey, Cyber Stalking and Internet Harassment: What the Law can do - www.netsafe.org 9. Gregory C Mosier and Tara I Fitzgerald, Cyber Torts: Common Law and Statutory Restraints in US, Journal of International Commercial Law and Technology, Vol.2 (2007)
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10.

Fridman, Malice in the Law of Torts, 1958 (21) MLR 484

11. John C. Jeffries, Disaggregating Constitutional Torts , 110 YLJ 259(2000) 12.Willaim C. Whitford, Structuring Consumer Protection Legislations to Maximise Effectiveness , 1981 Wiscousin Law Review 1018-43 13.AK Agarwal, Some Legal Aspects of Consumer Under the Consumer Protection , AIR 2007 SCC(J) 124 14.J Ashwin Kumar, Consumer Protection through Legislation, AIR 2004 SCC(J) 94 15.B Panigrahi, Consumer Protection and Law, AIR 1992 SCC(J) 33 16.Dr. Rjendra Prasad, Historical Evolution of Consumer Protection and Law in India , Journal of Texas Consumer Law, p.132

Webliography
1. www.articlesarchives.com/law-legal-system/torts . [For articles relating to law of torts] 2. www.wcl.american.edu/ - Constitutional Torts in Modern Era

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