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Chapters
1. N a tu re a n d D efinition o f T o rt 153

2. Liability based o n F a u lt a n d S tric t L iab ility 160

3- V icarious Liability in clu d in g S ta te L ia b ility 174

4- J o in t Tortfeasors 179

5- Negligence 181

6. D efam ation 197

7- Conspiracy 203

8. N uisance 205

9- False Im p riso n m e n t a n d O th e r F o rm s o f T r e s p a s s 208

10 . M alicious Prosecution 215

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1. N AT U R E A N D D E F I N I T I O N O F T O R T
MI

Law of torts is a system of laws, which enables a person who has suffered harm or
injury by the acts of another, may claim damages in a civil suit. The essential nature
of the law of torts is that it is not codified like statute laws. The law of tons in India
is based on English Common law, which is the product of judicial decisions. The
rules of English law are to be applied so far as they are applicable to Indian society
Chapters and circumstances.
There is very little legislation in the area of tort in India. The reason is simple-
tortious liability can arise in a number of ways and the number is so large that it is
1. Nature and Definition of Tort 153 almost impossible to specify each and every act on the part of the defendant who may
2. Liability based on Fault and Strict Liability 16o be made liable for damages. In recent times, some parrs of the law of torts have been
codified, viz. The Workmen's Compensation Act, The Employer's Liability Act, etc.
3. Vicarious Liability including State Liability 174 Unlike England, there is very little tort litigation in India, the reasons being:
179 lack o f consciousness about one's rights and the spirit of toleration, problem o f
4. Joint Tortfeasors
recognition of the action by courts, and, awarding of very low damages. Thus, numerous
5. Negligence 181 cases of injury in India like unlawful detention, injury to or the death of people due
to adulterated foodstuffs, liquor, medicine, etc., loss due to power cut, noise and other
6. Defamation 197 pollutions, etc. are put up without bringing an action in a court of law.
7. Conspiracy 203 No precise or scientific definition of 'tort' has been framed so far. The French
word 'tort' has been derived from the Latin term 'Tortium' which means to twist.
8. Nuisance 205 Thus it implies a conduct, which is not lawful, but rather it is twisted, crooked or
unlawful. It is equivalent to the English term 'wrong'. A tort is a violation of a right
9. False Imprisonment and Other Forms of Trespass 208 of a person/ breach of duty by one person towards another. Some of the definitions
io. Malicious Prosecution 215 of 'tort' are:
Salmond- " I t is a civil wrong for which the remedy is a common law action for
unliquidated damages and which is not exclusively the breach of contract
or the breach of a trust or other merely equitable obligation."
Fraser- " I t is an infringement of a right in rem of a private individual giving a
right of compensation at the suit of the injured party."
Winfield- "Tortious liability arises from the breach of a duty primarily fixed by
the law this duty is towards persons generally and its breach is redressible
by an action for unliquidated damages."
Lord Denning- "The province of tort is to allocate responsibility for injurious conduct"

A L a w o f Tort o r Law o f Torts

There are two theories with regard to the basic principle of liability in the law of tort
or torts: (1) All injuries done by one person to another are torts, unless there is some
justification recognised by law. (2) There is a definite number of torts outside which
liability in tort does not exist (Winfield).
(1531
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According to the first theory, if I injure my neighbour, he can sue me in tort
whether the wrong happens to have a particular name like assault, battery, deceit 0;
slander, and I will be liable if i cannot prove lawful justification. This leads to the
wider principle that "all unjustifiable harms are tortious". This enables the courts to
create new torts and make defendants liable irrespective of any defect in the pieedin8
of the plaintiffs. This theory resembles the moral saying, "my duty is to hurt nobody
by word or deed". It is in consonance with the principle, 0,1 Jus lbl remedlum (where
there is a right there is a remedy).
Winfield and Pollock supports the first theory. Winfield is of the view that it is
'law of tort'. The fact that new torts arc recognised from time to time supports this
theory. For instance, negligence became a new specific tort only by the nineteenth
century A.D. Similarly, the rule of strict liability was laid down in Ryland, v Fletcher
(1868) LR 3 HL 330, the rule of absolute liability in relation to hazardous enterprises
was laid down in Af C.Mehta case (1987). Indian courts endorse this theory.
According to the second theory, the `law of torts' consists of a neat/clear set of
pigeon-holes each containing a labelled/specific tort like assault, battery, false
imprisonment, slander, etc. If the defendant's wrong will not fit any of these pigeon.
holes he has committed no tort. In other words, the plaintiff wins his case only when
he proves as to what particular tort the defendant has committed against him. Thus,
there is no general or basic principle of liability, but there are specific rules. The
second theory is supported by Salmond. He said: "Just as criminal law consists of a
body of rules establishing specific offences, so the law of torts consists of a body of
rules establishing specific injuries." His book is called the Law of Torts. ' y ▶
The law of torts has in the main been developed by the courts proceeding from the
simple problem of primitive society to those of our present complex civilization.
Decisions such as Donoghue v Stevenson ( 1932) AC 562 show that the law of tort
is steadily expanding and the idea of its being cribbed, cabined and confined in a set
of pigeon-holes is untenable.
Interests Protected by the Law of Torts
(i) Personal and proprietary interests.
00 Reputation- libel and slander.
(iii) interests in economic relations- conspiracy, passing off; deceit, etc.
(iv) Interests in family relations e.g. extent to which the parents may sue in
respect of injuries to their children.
(v) Interference with judicial process- malicious prosecution.
(vi) Miscellaneous interests e.g. right to vote.
Distinction between Tort and Crime
A 'tort' is a private wrong, while a 'crime' is a public wrong. There are various
wrongs, which find their place both under criminal law and law of torts. Examples are
assault, defamation, negligence, nuisance and conspiracy. In such cases, for the purpose
of civil liability, the rules of law of torts will be applicable and for the purpose of
criminal liability the rules of criminal law will apply. For instance, i f Z digs a ditch
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Law of Torts 1 5 5
on public road causing inconvenience to public, 7 has committed an offence of public
nuisance. I f Y, a passerby, falls into that ditch and thereby gets injured, 7's act also
becomes a tort of private nuisance. 7 will he punished under criminal law and also
be liable to compensate Y under law of torts.
Distinction between Tort and Breach o f Contract/ Trust
A tort is a civil wrong. However, every civil wrong is not a tort. It will have to be
found out that the civil wrong is a tort and not breach of contract or breach of trust.
According to Sec. 2(m) of the Limitation Act, 1963, "Tort means a civil wrong which
is not exclusively a breach of contract or breach of trust."
A tort is a violation of a right in rem i.e. against the world at large. A's duty
not to defame is not towards X or Y or Z only. Whomever A defames will be entitled
to bring an action against him. A breach of contract is the violation of a right in
personem, i.e. against some determinate person. However, sometime the same wrong
is both a breach of contract and a tort.
In a tort, motive may be relevant. If the motive was found good and a wrong had
been done to avoid a greater evil, the defaulter might escape the liability. In a breach
of contract, the defaulting party is bound to incur liability irrespective of the motive.
Damages in Tort and Contract
Damages is the most important remedy for a tort as well as contract. Damages are the
pecuniary compensation which the law awards to a person for the injury he has
sustained by the wrongful act of another. The general rule is that in fixing the sum
to be given as damages the court should as nearly as possible get at that sum of
money which will put the aggrieved party in the same position as he would have been
in, if he had not sustained the wrong for which he is getting the compensation. The
basic principle for the measure of damages in tort as well as in contract is same, viz.
that there should be restitutio in integram (restoration to the previous position).
However, there are certain differences also which are discussed below:
(i) In a tort, the damages are 'unliquidated' which means something, which is
not previously determined or fixed but left to the discretion of the court. In
breach of contract, the damages are 'liquidated' in the sense that they are
either embodied in the contract itself or they can be ascertained by applying
some prescribed method.
(ii) Intention is an essential element in tort in assessing damages,but not in a
breach of contract.
(iii) I n contract damages are only a compensation. In tort to property they are the
same. Where an absolute right is infringed, the plaintiff is awarded nominal
damages. Where the injury is to the person or feelings and the facts disclose
fraud, malice or insult, exemplary damages are given; there i s no such
distinction as nominal or exemplary damages in contract except in an action
for breach of promise of marriage.
(iv) I n tort the pecuniary condition of the wrong-doer is often taken into account,
not so in contract.
(v) T h e rule as to remoteness of damage is not the same in actions of tort and of
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contract. In tort damages are given for consequences of which the defendee
hadno notice ( Polemis case). In the case of breach of contract the rules t
Hadley v Baxendale apply. —
(vi) In contact it is the duty of the plaintiff to take measures to reduce the
damages if there is breach (mitigation of damages). A tort consists in the
defendant's failing to do an act which he is bound to do or in doing one
which he ought not to do.
In the case of a'breach of trust' by the trustee, the beneficiary can claim such
compensation which depends upon the loss that the trust property has suffered. The
amount of damagesbeing ascertainable; the damages in the case of breach of trust are
liquidated. On the other hand, damages in a tort are unliquidated.
Remedies in Tort
Remedies for torts are of two kinds: Judicial and Extra judicial. Judicial remedies are
thosewhich are afforded by the act of law, viz. (1) awarding of damages; (2) granting
of injunction; and (3) restitution of property. Extra-judicial remedies are those which
are available to a party in certain cases of torts by his own acts alone, viz expulsion
of atrespasser, re-entry on land, re-caption of goods,distress damage fear ant, abatement
of nuisance.
In a tort, besides 'damages', the court may also grant 'injunction' to the plaintiff
to prevent a continuous nuisance. Thus, an injunction may be granted to prevent
trespass, or the continuance of a nuisance, to right of way, to markets; or 4130,.
infringement of copyrightsand trademarks; or the publication of a libel or the uttering
of a slander, or the disclosure of confidential communications; or the wrongful sale 1!
or detention of a chattel; etc.
'Specific restitution of property' is another remedy in tort. When the plaintiff
hasbeen wrongfullydispossessed of his movable and immovable property, the court
mayorder that the specific property should be restored back to the plaintiff.
Kinds of Damages
Thereare four kinds of damagesunder the law of torts: (I) contemptuous, (2) nominal,
(3) ordinary, and (4) exemplary.
(I) Contemptuous Damages
Suchdamages are awarded when it is considered that an action should never have
beenbrought. The amountawarded is very trifling because the court forms a very low
opinion of the plaintiff's claim. For example, the reason for the defendant's battery
against the plaintiff is found to be some offensive remark by the plaintiff
(2) Nominal Damages
Whentherehasbeeninfringement of the plaintiff's legal right but he has suffered no
lossthereby (injuria sine damn) the law awards him nominal damages in recognition
of his right. Thesumawarded may be nominal, say, one or two rupees. For example,
incases of infringement of absolute rights of personal security (e.g. assault) and
property (e.g. bare trespass, invasion of a right of easement, etc.).
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Law of Tats 1 5 7 1 1 1 1
(3) Ordinary damages
Also called 'substantial' or 'compensatory' damages, these are awarded where it is
necessary to compensate the plaintiff fairly for the injury he has in fact sustained. The
sum awarded may be large or small, equivalent to the harm suffered by the plaintiff.
The plaintiff's own estimate is regarded as the maximum limit. Such damages are
called 'compensatory' as they compensate the plaintiff rather than punish the wrong-
doer i.e. 'punitive'.
When the plaintiff's injury is aggravated by the conduct and motives of the
defendant, e.g. when he has acted in a highhanded manner, wilfully or maliciously, the
damages may be correspondingly increased. But the damages so increased or
'aggravated' are really compensatory and fall in the class of ordinary damages.
(4) Exemplary Damages
When the damages awarded are in excess of the material loss suffered by the plaintiff
with a view to prevent similar behaviour in future, the damages are known as
'exemplary, punitive or vindictive'. Such damages are not compensatory in nature,
they are rather by way of punishment to the defendant. Such damages are awarded
wherever the wrong or injury is of a grievous nature, or is accompanied with a
deliberate intention to injure and abuse, e.g. gross defamation, seduction of a man's
daughter, malicious prosecution, unconstitutional action (viz wrongful arrest), or when
the industry which causes injury is hazardous or inherently dangerous.
Prospective and Continuing Damages
"Damageswhen given are taken toembrace all the injurious consequences of the wrongful
act, unknown as well as known, which may arise hereafter, as well as those which
have arisen, so that the right of action is satisfied by one recovery." Prospective or
future' damages means compensation for damages which is quite likely result of the
defendant's wrongful act but which was not actually resulted at the time of decision
of the case. For example, if a person has been crippled in an accident the damages
to be awarded to him may not only include the loss suffered by him up to the date
of the action but also future likely damage to him in respect of that disability, viz.
effects on capacity to work, enjoyment of his normal life, etc.
A 'fresh' action cannot be brought unless there is both a new unlawful act and
fresh damage. Where the cause of action is a 'continuing' one ( viz. an action for a
continuing trespass), a fresh cause of action arises every day; and it is open to the
plaintiff to bring fresh action. Further, if the same wrongful act violates two rights,
'successive' actions may be brought in respect of each of them. An action for malicious
prosecution could be brought notwithstanding the recovery of damages in a previous
action for false imprisonment arising out of the same transaction because the cause
of action were perfectly distinct and different.
General and Special Damages
General damages are those which the law will imply in every violation of a legal right.
They need not be proved by evidence. They arise by inference of law even though no
pecuniary loss can be shown. Whenever the defendant violates any absolute legal right
of the plaintiff general damages to at least a nominal amount will be implied.
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Special damages are such as the law will not infer from the nature of the act
complained of. They must be claimed on the pleadings and proved at the trial. The
expression "special damage" denotes the actual and temporal loss which has, in fact,
occurred. Suchdamage is called variously "express loss", "particular damage", "damage
in fact", etc. For example, in actions brought for a public nuisance, such as the
obstruction of a river or a highway, "special damage" denotes that actual and particular
loss which the plaintiff must allege and prove that he has sustained beyond what is
sustained by the general public.
Similarly, in an action for false imprisonment, general damages are
recoverable in respect of the inconvenience, indignity and discomfort so suffered by
the plaintiff; for these are the natural and normal results which the law presumes to
follow from any injury of this description. But if the plaintiff has by his imprisonment
incurred medical expenses or has suffered any special pecuniary loss such as loss of
wages, this is special damage which must be proved, otherwise compensation cannot
be recovered in respect of it. The aforesaid distinction between general damages and
special damages is based on the substantive law distinction between torts actionable
per se and torts not actionaLle without actual or special damage to the plaintiff:
Damages for Peisoma Injury
PersonaUtrjuries may cause pecuniary loss or non-pecuniary loss. Pain and suffering
including mental agony, loss of amenities, and expectation of life are 'non-pecuniary'
losses whereas expenses including medical care and loss of earnings are examples of
'pecuniary' losses. If there is probable future loss of income by reason of incapacity
or diminished capacity of work, damages for the same are also recoverable.
Loss of earnings constitutes an important pecuniary loss for which compensation
is allowed. The date of trial is the appropriate date on which to determine (a) the
actual loss of earnings arising up to that date and (b) the future loss of earnings (loss
of future working life) based on a multiplicant and multiplier. In addition to the
damages allowed under various heads, the plaintiff may be allowed interest (at the
rate of 6% p.a.) on the damages from the date of his filing the petition or suit till the
date of payment of compensation.
Assessment of the Value of Dependency (Quantum of Compensation)
How to assess the loss to any dependant in the event of death of a person, and award
him compensation which will make good that loss has invariably posed a problem
before the courts.
According to the Interest theory, the dependants may be paid such lumpsum the
interest from which would be equivalent to the loss suffered by them. In other words,
it has to be seen as to how much interest a certain amount will bring i f invested in
a fixed deposit. According to the Multiplier theory the likely future loss is assessed
by multiplying the likely future loss due to occur every year with a multiplier, which
indicates the number of years for which the loss is likely to continue. For instance,
if the loss to the dependants is Rs. 1,500 per month, it may be capitalised for 15
years, and damages amounting to Rs.2,70.000 may be paid to the dependants. The
age of the deceased and the dependants may be the factors which may be taken into
account in selecting the multiplier. A multiplier of 16-18 is generally used for the
deceased between the age group of 20-35. A low multiplier is used for the higher age-
group (viz 4 for the age of 60 years).
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Lawof Torts 1 5 9
when Damages are Irrecoverable
Damages are irrecoverable in the following four classes of cases :
(i) Cases o f damnum sine injuria (no damages without injury), viz.
competition in trade, withdrawal of light or support from buildings not
entitled to an easement of light, etc.
(ii) Damnum suffered by one person and injuria by another. The defendant
is not liable for his act to the plaintiff for the reason that no duty is owed
to the latter.
(iii) Damnum of a kind not recognised by law. Thus, under English common
law no damages can be recovered for the death of human being. Again,
when the plaintiff's cause of action is based on the provisions of some
statute, it is not enough that the plaintiff has suffered damages as a result
of the breach of any statutory provision, it is also necessary that the
plaintiff should have been one of those persons whom the statute has
intended to afford protection by its enactment.
(iv) Damnum too remote. The damages are not recoverable because they are
deemed to be too remote a consequence of the defendant'sact.
Discharge o f Tort
Where there is a vested right of action for a tort, such a right can be discharged in
the following ways: (i) Death of either party; (ii) Waiver; (iii) Accord and satisfaction;
(iv) Release; (v) Acquiescence; (vi) Judgement recovered; and (vii) Statute of
Limitation.
Waiver o f Tort
In certain cases, when a tort has been committed, the injured party has a choice of
not bringing an action for damages in tort, but of suing the wrongdoer in 'quasi-
contract' to recover the value of the benefit obtained by the wrongdoer. When the
plaintiff elects to sue in quasi-contract instead of tort, he is said to have 'waived the
tort'. The torts, which can be waived, are those of conversion, trespass to land or
goods, deceit and action for extorting money by threats. In certain torts, like defamation
and assault, the doctrine of waiver cannot be applied.
Disability t o Sue and To be Sued in India
Who Cannot Sue
Ordinarily, all persons are entitled to sue in tort. But there are certain exceptions to
this rule viz. a bankrupt, a corporation, a child in the womb. A convict in India, unlike
England, may sue. A bankrupt may sue for personal wrongs. In India, unlike England,
an action in tort by one spouse against the other is maintainable. A Corporation can
sue for a libel affecting its property or business. An infant can sue for a tort.
Who Cannot be Sued
There are certain classes of persons who cannot be sued viz. foreign sovereigns and
ambassadors, public officials, the State. However, the public officials for their private
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160 L a w Guide for Competitive Examinations
acts can be sued. Similarly, the State can be sued for non-sovereign functions. An inf
is, in general, liable for his torts in the same manner as an adult; however 4 2
intention, knowledge, or malice is an essential ingredient of liability, infancy ean
defence. Similarly, a lunatic or drunkard can be made liable. A married woman may a
and be sued alone. In India, a husband is not liable for the torts of his wife, s l l e
2. LIABILITY BASED ON FAULT
AND STRICT LIABILITY
■ act of trespassing is actionable even though the plaintiff has not suffered any harm.
A liability based on 'fault' implies that the defendant is liable because of hania
caused with an intention or negligence on his part. A 'strict' liability makes me
defendant liable for accidental harms caused without any intention and negligence m
his part. In other words, sometimes the law recognizes `no fault' liability. The
undertakers of hazardous or dangerous activities have to compensate for the damage
caused irrespective of any carelessness on their part.
General Conditions o f Liability for a To r t
In general, a tort consist in some act done by the defendant whereby he has without
just cause or excuse caused some form of harm to the plaintiff. The fundamental
principle of this branch of the law is alterum non leadere- to hurt nobody by word
or deed. An action of tort, therefore, is usually a claim for pecuniary compensation
in respect of damage suffered as the result of the invasion of a legally protected
interest. However, the law of tort fails to provide adequately for the injury other tins
physical, done maliciously or carelessly.
In order to constitute a tort, the following conditions are to be satisfied:
(1) There must be a wrongful act or omission on the part of the defendant
(2) Such act or omission should result in legal damage (injuria) to the
plaintiff
(3) Some legal remedy in the form o f an action for damages must be
available.
( I ) Act or Omission
In order to make a person liable for a tort he must have done some legal wrong i•e•
violates the legal rights of another person e.g. committing the act o f trespass or
defaming a person. The wrongful act, i f merely a moral or social wrong, will not
amount to a tort e.g. failing to help a starving man or saving a drowning child. The
wrongful act also includes omission to perform a legal duty.
(2) Legal Damage
The test to determine the liability under the law of torts is to see whether any legal
right of the plaintiff has been violated or not. If a legal right is violated, then it does
not matter that the plaintiff has suffered any loss or not. The term 'injuria' refers to
7
Law or Torts 1 6 1
infringement of a legal right and the term 'damnum' means substantial harm, loss or
damage. The term 'sine' means without.
injuria sine damnum
This maxim means violation of a legal right without causing any harm, loss or damage
to the plaintiff. Thus, it is the behaviour, which is actionable as a tort. It is always
actionable as legal wrongs entail a remedy. Every injury imports damage. Generally
the court awards nominal damages.
Torts are of two kinds—namely, those, which are actionable per se, and those,
which are actionable only on proof of actual damage resulting from them. Thus, the
Similarly, a libel is actionable per se, while slander (i.e. oral as opposed to written
defamation) is not actionable without proof of actual damage.
In Ashby v While (1703) 2 LR 938, the plaintiff was a qualified voter at a
parliamentary election, but the defendant, a returning officer, wrongfully refused to
take plaintiff's vote. No loss was suffered by such refusal because the candidate for
whom he wanted to vote won inspite of that. The defendant was held liable. Similarly,
held in Tozer v Child (1457) 7 E & B 377.
In Bhim Singh v State of J & K (AIR 1986 SC 494), the petitioner, an M.L.A.
of J & K Assembly, was wrongfully detained by the police. Thus, he was deprived
of his fundamental right to personal liberty and constitutional right to attend the
Assembly session. The court awarded exemplary damages of Rs. 50,000 by way of
consequential relief.
Damn um sine injuria
It means that the plaintiff may suffer actual or substantial loss without any violation or
infringement of legal right and therefore no action lies in such cases. This is generally
so when the exercise of legal right by one results in consequential harm to the other,
even though the injury is intentional. It is never actionable, as moral or social wrongs
have no remedy. Similarly, hurt to religious feelings is not an actionable tort.
There are many forms of harm of which the law takes no account:
(i) Loss inflicted on individual traders by competition in trade.
(ii) Where the damage is done by a man acting under necessity to prevent a
greater evil.
(iii) Damage caused by defamatory statements made on a privileged occasion.
(iv) Where the harm is too trivial, too indefinite or too difficult of proof.
(v) Where the harm done may be of such a nature that a criminal prosecution
is more appropriate e.g. in case of public nuisance or causing of death.
(vi) There is no right of action for damages for contempt of court.
In Gloucester Grammar School case (1410) Y.B. Hill, 11 Hen, the defendant,
a schoolmaster, set up a rival school to that of the plaintiffs. Because of the competition
the plaintiffs had to reduce their fees. Held that the plaintiffs had no remedy for the
loss thus suffered by them. Similarly, in Mogul Steamship Co. v McGregor Gow &
Co. (1892) A.C. 25, a number of Steamship companies combined together and drove
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160 L a w Guide for Competitive Examinations
acts can be sued. Similarly, the State can be sued for non-sovereign functions. An inf
is, in general, liable for his torts in the same manner as an adult; however 4 2
intention, knowledge, or malice is an essential ingredient of liability, infancy ean
defence. Similarly, a lunatic or drunkard can be made liable. A married woman may a
and be sued alone. In India, a husband is not liable for the torts of his wife, s l l e
2. LIABILITY BASED ON FAULT
AND STRICT LIABILITY
■ act of trespassing is actionable even though the plaintiff has not suffered any harm.
A liability based on 'fault' implies that the defendant is liable because of hania
caused with an intention or negligence on his part. A 'strict' liability makes me
defendant liable for accidental harms caused without any intention and negligence m
his part. In other words, sometimes the law recognizes `no fault' liability. The
undertakers of hazardous or dangerous activities have to compensate for the damage
caused irrespective of any carelessness on their part.
General Conditions o f Liability for a To r t
In general, a tort consist in some act done by the defendant whereby he has without
just cause or excuse caused some form of harm to the plaintiff. The fundamental
principle of this branch of the law is alterum non leadere- to hurt nobody by word
or deed. An action of tort, therefore, is usually a claim for pecuniary compensation
in respect of damage suffered as the result of the invasion of a legally protected
interest. However, the law of tort fails to provide adequately for the injury other tins
physical, done maliciously or carelessly.
In order to constitute a tort, the following conditions are to be satisfied:
(1) There must be a wrongful act or omission on the part of the defendant
(2) Such act or omission should result in legal damage (injuria) to the
plaintiff
(3) Some legal remedy in the form o f an action for damages must be
available.
( I ) Act or Omission
In order to make a person liable for a tort he must have done some legal wrong i•e•
violates the legal rights of another person e.g. committing the act o f trespass or
defaming a person. The wrongful act, i f merely a moral or social wrong, will not
amount to a tort e.g. failing to help a starving man or saving a drowning child. The
wrongful act also includes omission to perform a legal duty.
(2) Legal Damage
The test to determine the liability under the law of torts is to see whether any legal
right of the plaintiff has been violated or not. If a legal right is violated, then it does
not matter that the plaintiff has suffered any loss or not. The term 'injuria' refers to
8
Law or Torts 1 6 1
infringement of a legal right and the term 'damnum' means substantial harm, loss or
damage. The term 'sine' means without.
injuria sine damnum
This maxim means violation of a legal right without causing any harm, loss or damage
to the plaintiff. Thus, it is the behaviour, which is actionable as a tort. It is always
actionable as legal wrongs entail a remedy. Every injury imports damage. Generally
the court awards nominal damages.
Torts are of two kinds—namely, those, which are actionable per se, and those,
which are actionable only on proof of actual damage resulting from them. Thus, the
Similarly, a libel is actionable per se, while slander (i.e. oral as opposed to written
defamation) is not actionable without proof of actual damage.
In Ashby v While (1703) 2 LR 938, the plaintiff was a qualified voter at a
parliamentary election, but the defendant, a returning officer, wrongfully refused to
take plaintiff's vote. No loss was suffered by such refusal because the candidate for
whom he wanted to vote won inspite of that. The defendant was held liable. Similarly,
held in Tozer v Child (1457) 7 E & B 377.
In Bhim Singh v State of J & K (AIR 1986 SC 494), the petitioner, an M.L.A.
of J & K Assembly, was wrongfully detained by the police. Thus, he was deprived
of his fundamental right to personal liberty and constitutional right to attend the
Assembly session. The court awarded exemplary damages of Rs. 50,000 by way of
consequential relief.
Damn um sine injuria
It means that the plaintiff may suffer actual or substantial loss without any violation or
infringement of legal right and therefore no action lies in such cases. This is generally
so when the exercise of legal right by one results in consequential harm to the other,
even though the injury is intentional. It is never actionable, as moral or social wrongs
have no remedy. Similarly, hurt to religious feelings is not an actionable tort.
There are many forms of harm of which the law takes no account:
(i) Loss inflicted on individual traders by competition in trade.
(ii) Where the damage is done by a man acting under necessity to prevent a
greater evil.
(iii) Damage caused by defamatory statements made on a privileged occasion.
(iv) Where the harm is too trivial, too indefinite or too difficult of proof.
(v) Where the harm done may be of such a nature that a criminal prosecution
is more appropriate e.g. in case of public nuisance or causing of death.
(vi) There is no right of action for damages for contempt of court.
In Gloucester Grammar School case (1410) Y.B. Hill, 11 Hen, the defendant,
a schoolmaster, set up a rival school to that of the plaintiffs. Because of the competition
the plaintiffs had to reduce their fees. Held that the plaintiffs had no remedy for the
loss thus suffered by them. Similarly, in Mogul Steamship Co. v McGregor Gow &
Co. (1892) A.C. 25, a number of Steamship companies combined together and drove
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the plaintiff's company out of trade by offering reduced freight. Held that the plaintiff
had no cause of action as the defendants had only used lawful means to protect and
extend their trade and increase their profits.
The case of Chesmore v Richards (1859) 7 HCL 349, shows that if a man has
the misfortune to lose his spring by his neighbour digging a well, he must dig his nv.t
well deeper. Similarly, in Acton v Blundell (1848) 12 M & W 324, the defendants by
digging a coal pit intercepted the water which affected the plaintiff's well less than
20 years old, at a distance of about one mile. Held, they were not liable.
In P Seetharamayya v Mahalakshmma (AIR 1958 A.P. 103), held that the
owner of land on or near a river has a right to build a fence upon his ground to
prevent damage to his ground by the overflow of river even though as a result of
which the over-flowing water is diverted to the neighbour's land and causes damage
(it is to be noted that if the flood-water has already entered one's land, the law does
not permit him to transfer it upon another's land).
In Dickson v Reuter k Telegram Co. (1877) 3 C.P.D. I, the defendants were held
not liable even though their negligence had caused damage to the plaintiff. A sent a
telegram to B for the shipment of certain goods. The telegram co. by a mistake delivered
the telegram to C. C acting on the telegram sent the goods to A who refused to accept
the goods stating that he had ordered the goods not from C but from B. Held that C
had no cause of action against the company for the company did not owe any duty of
care to C and no legal right of C could, therefore, be said to have been infringed.
(3) Legal Remedy or Damages
The third and final ingredient for 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. The maxim Ubi jus ibi remedium means that `where there is a right there is a
remedy'. In Ashby v White, it was observed that "if the plaintiff has a right, he must of
necessity have a means to vindicate and maintain it, and a remedy if he is injured in
the exercise or enjoyment of it for every man who is injured ought to have recompense."
Mental Element in Tortious Liability
Unlike criminal law, wheremenssea or guilty mind is an important factor to determine
a crime, in a tort the state of mind of a person is not so important, and in fact
irrelevant, except in certain cases (because unlike criminal law, the focus in the law
of torts is not on punishing the wrongdoer, but vindicating the rights of the injured
person). The term 'malice' has been rased in two different senses: (a) Malice in law,
and (b) Malice in fact.
Malice in Law- In its legal sense, the term 'malice' means "a wrongful act done
intentionally without just cause or excuse." In Shearer v Shields (1914) A.C. 808, it
wasobserved that a person who inflicted an injury upon another person in contravention
of the law is not allowed to say that he did so with an innocent mind; he is taken to
know the law, and he must act within the law. Thus, a wrongful intention is presumed
in case of anunlawful act done without just cause or excuse or for want of reasonable
or probable cause (Smt. S. R. Venkataraman v Union of India AIR 1979 SC 49).
Malice in Fact- In its narrow and popular sense, the term 'malice' means an evil or
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improper motive. It is the malice in fact or 'actual malice'. When a defendant does
a wrongful act with a feeling or spite, vengeance or ill will the act was said to be done
'maliciously'. Motive means an ulterior reason for the conduct e.g. motive for theft
may be to buy food for his children or to help a poor man.
As a general rule, malice in the sense of improper motive is entirely irrelevant
in the law of torts. The law in general asks merely what the defendant has done, not
why he did it. The case of Bradford Corporation v Pickles (1895) A.C. 587, explains
that a lawful act does not become unlawful merely because of an evil motive. In this
case, the defendant was held not liable for intentionally intercepting, by means of
excavations on his own land, the underground water that would otherwise have flowed
into the adjoining reservoir of the plaintiffs, although his sole motive in doing so was
to force the plaintiffs to buy his land at his own price. The court observed that it is
the act, not the motive for the act that must be regarded.
Similarly, in Town Area Committee v Prabhu Dayal (AIR 1975 All 132), the
defendants (municipal authorities) had demolished the illegally constructed building
of the plaintiff; the municipal commissioner was alleged to be an enemy of the
plaintiff. Held that the plaintiff has suffered no 'injuria' (violation of a legal right).
Torts where Malice is Relevant
(i) Malicious prosecution, nuisance, conspiracy, deceit and injurious falsPhond
(ii) In certain cases of defamation, the defence of qualified privilege is available
if the publication was made in good faith. The presence of malice negatives
good faith.
(iii) Malice may result in increase of damages for an otherwise ordinarily libel,
assault or trespass.
The recent trend is not only in making malice irrelevant, but also under certain
circumstances liability arises even without any negligence on the part of the defendant.
Contractual and Tortious Liability
In many cases, a person voluntarily binds himself by a contract to perform some duty,
which already lies upon him independently of any contract. The breach of such a
contract is also a tort. For example, the right of injured railway passenger to sue the
railways either for breach of contract of safe carriage or for negligence (tort) in
carrying him. Similarly, if a person leave his horse with his neighbour for a week and
go out and the neighbour allows the horse to die of starvation, there is breach of
contract in as much as the bailee has failed to exercise due care, and the bailee has
also committed tort of negligence. In such cases of concurrent liability in tort and
contract, the plaintiff can't claim the damages twice over but either to sue for breach
of contract or for the commission of tort. A doctor or surgeon is under a concurrent
liability in tort and contract, but not an architect or a solicitor.
According to the definition of tort, it is the violation of a right conferred by law.
No contract between private parties is capable of curtailing or modifying the law, and
therefore, no exemption clause in a contract is capable of exempting a party from
tortious liability [White v John Warrick & Co. (1953) 2 All ER, 1021 (CA)]. In this
case, a contract of hire of a carrier tricycle provided that: "Nothing in this agreement
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shall render the owners liable for any personal injuries to the riders of the machine
hired." The machine was defective and the hirer was thrown off and was injured
Their Lordships observed that the said accident was due to the negligence and,
or breach of contract of the owner, their servants or agents. Held, the fact that there is
acontractual relationship between the parties which may give rise to an action f,,
breach of contract, does not exclude the co-existence of a right of action founded on
negligenceasbetween thesame parties independently of the contract, though arising out
of the relationship in fact brought about by the contract (Donoghue v Stevenson) The
claim for negligence in this case is founded independently in tort and not on contract
In Donoghue v Stevenson (1932) A.C. 562, held that the action in tort is
independent of a contract and the rule that the privity of contract is essential for an
action in tort is highly irrelevant and unjust. Thus, a consumer could bring an action
against the manufacturer even though there was no contract between the manufacturer
and consumer. The manufacturer of chattels owes a duty to the ultimate user or
consumer. This duty had its origin in the law of tort and not in the law of contract.
Whatever the contract, it was only between the manufacturer and the retailer. "The
absence of a contract between the parties is, but one of the factors to be considered
in determining whether liability in tort exists."
Thus, where A purchased woollen garments from a retailer B which was
manufactured by MA M. and Sons, and A suffered dermatitis after wearing the
garments, A can claim damages from M/s M. and Sons (Grant v Australian Knitting
Mills Lid. 1936 A.C. 85).
General Defences: Avoidance of Liability in Tort
In an action for a tort, the defendant may avoid his liability by taking the plea of some
defence. There are some general defences, which may be taken against action for a
number of wrongs:
(1) Valenti non fit injuria (Defence of Consent).
(2) Plaintiff, the Wrongdoer.
(3) Inevitable Accident.
(4) Act of God.
(5) Private Defence.
(6) Mistake.
(7) Necessity.
(8) Statutory, Authority.
(9) Judicial/Quasi-JudicialActs; Executive Acts.
(10) Acts Done Under Parental Authority.
(I) Volenti non fit injuria (Leave and Licence)
Everyoneis thebestjudge of hisinterest and therefore the one who voluntarily agrees
tosufferharmis notallowed to complain for that and one's consent is a good defence
againstoneself. This issobecausetheharm voluntarily suffered does not constitute the
legalinjury. Nomancanenforce a right, whichhehas voluntarily waived or abandoned.
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Consent to suffer the harm may be express or impaed. An example of express
consent is submitting to a surgical operation. An example of implied consent is where
a player or a spectator in the game of cricket or football is deemed to be agreeing
to any hurt, which may be likely in the normal course of the game. In Hall v Brooiclands
Auto Racing Club (1931) 1 K.B. 205, the plaintiff was a spectator at a motorcar race.
During the race, there was a collision between two cars, one of which was thrown
among the spectator, thereby injuring the plaintiff. Held that the duty towards spectator
Was the duty of care rather than the duty of skill. Thus, error of judgment or lapse
of skill on the defendant's part will not make him liable in a horse show [Woolridge
v Summer (1963) 2 QB 43].
In Padmavatl v Dugganaika (1975) 1 Karnt. L.J. 93, 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 one of them died. Held that neither
the driver nor the master could be made liable, firstly, because it was a case of sheer
accident and, secondly, the strangers had voluntarily got into the jeep.
Essential Conditions of a Defence of Consent
(i) Free consent- The consent must not have been induced by fraud, compulsion,
coercion, undue influence, misrepresentation, mistake. etc. Moreover the act done by
the defendant must be the same for which the consent is given. For example, if a guest
is requested to suit in the drawing room and without any authority or jurisdiction he
enters the bedroom, he would be liable for trespass and he cannot take the defence
of your consent to his visit to your house. When a person is incapable of ,riving his
consent because of his insanity or minority, consent of such person's parents or
guardian is sufficient.
Consent obtained by fraud is not real. Thus, in R. v Williams (1923) 1 K.B. 340,
the accused, a music teacher, was held guilty of rape when he had sexual intercourse
with a minor girl on the pretext of an operation to improve her voice. Similarly, the
consent obtained under compulsion is not a free consent. Such a situation generally
arises in master-servant relationship. The servant may sometime be faced with the
situation of either accepting the risky work or losing the job. But if a workman adopts
a risky method of work of his own free will he can be met with the defence of volenti
non fit injuria (Imperial Chemical Industries v Shatwell 1965 A.C. 656).
(ii) Knowledge- Knowledge of a danger or risk is not the same thing as the consent
to bear the danger. In order to avail knowledge as a defence, it is necessary first to
prove that the plaintiff was aware of the risk and second that he, knowing the same,
agreed to suffer the harm. Thus, mere knowledge of the risk (Scienti non fit injuria)
is not enough. It is not correct to say that no injury is done to one who knowingly
does an act.
`Scienter' is a word applied especially to that clause in a declaration of certain
classes of actions in which the plaintiff alleged that the defendant knowingly did or
permitted that from which arose the damage of which the plaintiff complained. In an
action of deceit the scienter must be averred and proved.
In Cutler v United Dairies (London) Ltd. (1953) 2 K.B. 297, the driver of a cab
with restive horses cried for help. The plaintiff went and attempted to hold the horse
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but it threw him on the ground causing him injuries, in respect of which he sued the
defendant. Held that the plaintiff has no right of action, as he must have known that
his attempt to hold the horse was attendant with risk, and therefore, the maxim volenti
non fit injuria applied.
In Bowater v Rowley Regis Corpn. (1944) K.B. 476, the plaintiff, a cart driver
wasasked by the defendant's foreman to drive a horse, which to the knowledge of both',
wasliable to bolt. The plaintiff protested, but ultimately took out the horse in obedience
to the order. The horse bolted and the plaintiff was injured thereby. Held, the maxim
volenti non fit injuria did not apply and the plaintiff was entitled to recover.
In smith v Baker (1891) A.C. 325, the plaintiff was workman employed by the
defendant on working a drill for the purpose of cutting a rock. By the help of a crane,
stoneswere being conveyed from one side to the other, and each time when the stones
wereconveyed, the crane passed over the plaintiff's head. While he was busy in his
work a stone fell from the crane and injured him. The plaintiff had been generally
aware of the risk; however, held that the mere knowledge of the risk without the
assumption of it does not help in applying the maxim. It must be shown that the
plaintiff agreed or appreciated that what risk there was should lie on him.
In Dann v Hamilton (1939) I K.B. 509, a lady knowing that the driver of the
car was drunk chose to travel in it instead of an omnibus. Due to the driver's negligent
driving an accident was caused resulting in the death of the driver himself and injuries
to the lady passenger. The court held that the lady was entitled to claim compensation.
The reason why the defence of volenti non fit injuria was considered to be not
applicable was that the degree of intoxication of the driver was not to such an extent
that taking a lift could be deemed to be consenting to an obvious danger.
Limitations, Exceptions to the application of the maxim
(i) Illegal consent- No consent can legalize an unlawful act e.g. fighting with
naked fists or duel with sharp swords. No person can licence another to
commit a crime (R v Donovan).
(ii) Breach of a statutory duty- Thus, it is no answer to a claim made by a
workman against his employer of a duty imposed on him by statute.
(iii) Negligence- When the plaintiff consents to take some risk the presumption
is that the defendant will not be negligent. Thus, where a player negligently
or deliberately hit another with a stick or where an operation is unsuccessful
because of surgeon's negligence, the defendant cannot plead volenti non fit
injuria because the plaintiff never consented to an injury in that manner. The
act causing the harm must not go beyond the limit of what has been consented.
In Bradon v Osborne ("skylight case"), while plaintiffs, husband and wife, were
in a shop, a skylight in the roof was broken, owing to negligence of the contractors.
The glass fell and injured the husband. His wife while trying to pull him strained her
leg. Held that both the plaintiffs were entitled to damages. In T C. Balkrishnan
Menon v T.R Subramania, during the Pooram celebrations, which were attended by
lakhs of people, the explosion caused by igniting explosive-powder filled coconut
shells seriously injured the plaintiff. It was established that the injury was caused by
the negligence of the defendants (servants of the contractors) who did not properly
checked the explosive. The defendants were held liable.
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(iv) Rescue cases- When the plaintiff voluntarily takes a risk (even of death) to
rescue somebody from an imminent danger created by the wrongful act of
the defendant, he cannot be met with the defence of volenti non fit injuria.
The danger invites rescue. The cry o f distress is the summons to relief.
However, the rescuer mustn't take unnecessary risk (Cutler v United Dairies).
In Haynes v Harwood (1935) 1 K.B. 146, the defendant's servant left a two-
horse van unattended in a street. A police constable, the plaintiff, who was on duty,
saw the runaway horses coming down the street. Seeing a grave danger to a woman
and children he took the risk and managed to stop the horses, but in the process, he
was seriously injured. It being a 'rescue case' the defence of volenti non fit injuria
was not accepted and the defendants were held liable.
In Wagner v International Railway (1921) 232 N.Y. 176, a railway passenger
was thrown out of the running railway car due to the negligence o f the railway
company. When the car stopped, his companion got down to search his friend. There
was darkness, the rescuer missed his footing and fell down the bridge resulting in
injuries to him. He brought an action against the railway company. Held that it being
a case of rescue the railway company was liable.
In Baker v T.E. Hopkins & Son (1959) 3 All E.R. 255, due to the employer's
negligence a well was filled with poisonous fumes of a petrol driven pump and two of
his workmen who were reconstructing the well were overcome by fumes. Dr. Baker
entered the well despite the risk with the view to help the two workmen, however fumes
too overcame him. Held, the maxim does not apply. The defendants were liable.
In Videan v British Transport Commission (1963) 2 Q.B. 650, held that the
defendant is liable to both the victim and rescuer. The right of the rescuer is independent
of that of the victim. Further, the' right of the rescuer is not affected by the defenses,
which may be pleaded against the victim e.g. contributory negligence of the victim
(when a person by his negligence puts himself in danger and thus rescued by another
person). The rule in Haynes v Harwood also applies in cases of rescue of property.
(v) Unfair Contract Terms Act, 1977 (England} Sec. 2 of the Act limits the
right of a person to restrict or exclude his liability resulting from his negligence
by a contract term, or by notice. There is a complete ban on a person's right
to exclude his liability for death or personal injury resulting from negligence,
by a contract term or notice. In other cases, exclusion of liability by contract
is possible only if such a term or notice is reasonable.
(2) Plaintiff the Wrongdoer
The mere fact that the plaintiff himself is the wrongdoer does not disentitle him from
recovering the loss, which he suffers, unless some unlawful act or conduct of plaintiff
is connected with the harm suffered by him as part of the same transaction.
In Bird v Holbrook (1828) 4 Bing. 628, held that the trespasser on the defendant's
land is entitled to claim compensation for the injury caused by spring guns set by the
defendant without notice in his garden. If the owner of the house deliberately throws
stones on a trespasser to his land he will be liable for the throwing of stones although
he can bring action against the trespasser for the trespass.
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(3) Inevitable Accident
It means an unexpected injury, which could not have been, avoided inspite of ,
reasonable care on the part of the defendant. It is important to note that this defence
is available only if the accident occurs during the prosecution of a lawful act and not
when the act done is unlawful.
If A fires at a bird but the pellet from the gun strikes a tree and rebounds and
injures B in a different direction, A can take the defence o f inevitable accident
[Stanley v Powell (1891) 11 Q.B. 86]. Similarly, if the driver is not able to control
the horses, which are startled by a barking dog, and the plaintiff is thereby injured,
the defendant will not be liable [Holmes v Mather (1857)1.
(4) Act of God- vis Major
Pollock defines the Act of God as- "an operation of natural forces so unexpected to
anticipate it." Act of God is also known as vis major in Latin. It may be noted that
the expression force majeure is not a mere French version of the act of God; it is a
term of wide import and includes act of God, war, riot, strike, earthquake, storm,
flood, fire, etc. The expression "force majeure" (literally "superior force") means
irresistible force or compulsion or circumstances beyond one's control (such clause
is common in a construction contract).
Two important essentials are needed for the defence of act of God:
(i) There must be working of natural forces (like exceptionally heavy rainfall,
storms, tempests, earthquakes, tides and volcanic eruptions) without any
human intervention.
(ii) The occurrence must be extraordinary and not one which could be anticipated
and reasonably guarded against.
Act of God is a kind of inevitable accident with the difference that it does not
incorporates any human intervention. Accidents may happen by reason of the play of
natural forces or by intervention of human agency or by both, but it is only those acts
which can be traced to natural forces and which have nothing to do with the intervention
of humanagency that could be said to be acts of God. The rule of strict liability (rule
in Rylands v Fletcher) also recognizes act of God to be a valid defence for the
purpose of liability under that rule.
A road accident resulting due to heavy fog is not covered under the act of God.
Fog is not such a natural phenomenon that no human foresight could guard against
it. In Ramalinga Nadar v Narayyana Reddiar (AIR 1971 Ker 197), an unruly mob
('jatha') robbed the goods transported in the defendant's lorry. Held that it wasn't an
act of God as there was a human intervention. In Manindra Nath Mukherjee v
Mathuradas Chatturhuj (AIR 1946 Cal 175), the defendants, the owners of a certain
cinema,had put up a huge hoarding at a crossing. During a severe storm a banner on
the hoarding collapsed and fell on the plaintiff's head causing a severe injury. Held
that it was a case of pure negligence and not an act of God.
(5) Private Defence
Private defence is a good ground to negative a tortious liability. The law permits the
use of reasonable force to protect one's person or property. For this, the following
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conditions have to be satisfied- (i) there was an imminent and immediate danger, (ii)
the force employed was not out of proportion, and (iii) the force is employed only
for the purpose of defence. The force should not be used by way of retaliation after
the danger is over. Further, a clear notice (warning of danger) must be put up.
Fixing of broken glass or spikes on a wall, or keeping of a fierce dog can be
justified for the protection of the property, but fixing up of spring guns without any
warning to a trespasser (Bird v Holbrooke and hot v Wilkes), or live electric wire to
keep the trespassers away (Cherubin Gregory v State of Bihar AIR 1964 SC 205),
cannot be justified.
(6) Mistake
Mistake, whether of fact or law, is generally no defence to an action of tort. Entering
the land of another thinking that to be one's own is trespass, driving of plaintiff's
sheep amongst one's own herd is trespass to goods, injuring the reputation of another
without an intention to defame is defamation. However, in torts requiring malice, such
as the wrong of malicious prosecution and deceit the liability does not arise when the
defendant acts under an honest and mistaken belief.
(7) Necessity
An act causing damage, i f done under necessity to prevent a greater evil is not
actionable even though harm was caused intentionally. Throwing goods overboard a
ship to lighten it for saving the ship or person on board the ship, or for a competent
surgeon to perform an operation on an unconscious person to save his life, are the
examples of necessity.
(8) Statutory Authority
This defence is founded on the principle that the law, which recognizes a right, can
abolish it, modify it and regulate it. Thus, 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. This defence has its most important application in actions of
nuisance viz. if a railway line is constructed, there may be interference with private land
or the running of train may cause harm due to noise, smoke, etc. In Vaughan v Taff Vale
Rail Co. (1860) 5 H & N 679, sparks from an engine of the respondent rail company
set fire to the appellant's woods on the adjoining land. Held that since the respondent
had taken proper care to prevent the emission of sparks and they were doing nothing
more than what the statute had authorized them to do, they were not liable.
However, where an act authorized by the legislature is done negligently, than
an action lies. In Smith v London & South Western Railway Co. (1870) L.R. 6 C.P.
14, the servants of a Railway Co. negligently left trimmings of grass and hedges near
a rail line. Sparks from an engine set the material on tire. By a heavy wind the fire
was carried to the nearby plaintiff's cottage, which was burnt. Since it was a case of
negligence on the part of the Railway Co., they were held liable.
In Ramchandraram Nargam Rice & Oil Mills Ltd. case (AIR 1943 Pat 408),
the plaintiff had dispatched hundreds of 'canisters' full of mustard oil, manufactured
by them. At the railway station, these 'canisters' were seized by the Sanitary Inspector
and were loaded in a truck, which was used for carrying rubbish and night soil. Owing
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tothisaction,the plaintiffs suffered a hugeloss. Held that the action of the municipality
wasunreasonablearid that it negligently caused damage to the plaintiff.
In MetropolitanAsylum District v Hill (1881) 6 A.C. 193, a local authority,
having statutory authority to erect a smallpox hospital, was restrained from erecting
one in a place in which it would have been a source of danger to the residents of the
neighbourhood. This statutory authority was construed, not as an absolute authority
to erect a hospital where the defendants pleased, and whether a nuisance was thereby
created or not, but as conditional authority to erect one if they could obtain a suitable
site where no nuisance would result.
Strict Liability
Simply stated the rule of strict liability makes the defendant liable for accidental
hams caused without any intention and negligence on his part. In other words,
sometimes the law recognizes 'no fault' liability. The undertakers of hazardous or
dangerous activities have to compensate for the damage caused irrespective of any
carelessness on their part. The basis of liability is the foreseeable risk inherent in the
very nature of the activities. In this respect, principle of strict liability resembles
negligence, but differs, as here the defendant would be liable even if he could not by
reasonable care have avoided the damage.
The rule laid down in Rylands v Fletcher is called the rule of strict liability (it
isnot called the rule of 'absolute liability' because of the various exceptions to it).
The rule laid down in MC. Mehta's case is called the rule of absolute liability i.e.
stricter than strict liability (as it do not recognizes any exceptions).
Rule in Rylands v Fletcher
InRylands v Fletcher (1868) LR 3 HL 330, the defendant got a reservoir constructed
through independent contractors over his land for providing water to his mill. When the
reservoir was filled, water flowed down the plaintiff's neighbouring coal mine causing
damage.There was some negligence on the part of the contractors. As the engineers
wereindependentcontractors, the defendants could not be made vicariously liable for
their negligence. Even though defendant had not been negligent he was held liable.
The basis of liability was laid down by Blackburn J. in these words: "The rule
of law is that the person who, for his own purpose, brings on his land and collects
andkeepsthereanything likely to do mischief if it escapes, must keep it in at his risk;
and if hedoesnot do so is prima facie answerable for all the damage which is the
naturalconsequence of itsescape." Thus, a man acts at his peril and is the insurer of
thesafety of hisneighbouragainst accidental harms.
Thefollowing three conditions are essential to apply the Rylands rule:
(I) Dangerous thing - The defendant should bring or collect on his land
somedangerousthing i.e. a thing likely to do mischief if it escapes. The
rulehas been applied to water, gas, electricity, vibrations, poisonous
trees,explosives, noxious fumes and rusty wire. The liability exists
whetherthe land is or is not owned by the defendant.
(2) Escape - The thingcausing the damagemust escape to the area outside
theoccupationand control of the defendant. Thus if there is projection
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of the branches of a poisonous tree on the neighbour's land this amounts
to an escape and if the cattle lawfully there on the neighbour's land are
poisoned by eating the leaves of the same, the defendant will be liable
under the rule [Cheater v Cater (1908) 1 K.B. 247].
However, in Giles v Walker (1820) 24 QBD 656, it was held that the owner of
the land is not bound to prevent the growth of thistles oh it and he is not responsible
for the escape of thistle seeds. The thing escaping should've been under the occupation
and control of the defendant
In Airs. Read v Lyons & Co. (1947) A.C. 158, the defendants undertook the
management and control of an Ordnance Factory where they made high explosive
shells for the Government. There was an explosion in the factory in which the plaintiff
and some others employed within the factory are injured. Even though the shell which
had exploded was a dangerous thing, it was held that the defendants were not liable
because there was no "escape" of the thing outside the defendant's premises.
In Firth v Bowling Iron Co. (1878) 3 CPD 254, the defendant's land adjoining
the plaintiff's was fenced by a wire rope. Through exposure the rope decayed and
pieces of it fell on the grass on the plaintiff's land, whose cow in grazing swallowed
one of the pieces, and died in consequence. The defendants were held liable.
(3) Non-natural use of land - For the use to be non-natural it must be some
special use (e.g. keeping 30 gas cylinders M a residential house) bringing
with it increased danger to others, and must not merely be the ordinary
use of land or such a use as is proper for the general benefit of the
community. Fire in a house in a grate is an ordinary, natural, everyday
use of the fireplace in the room and if this fire spreads to the adjoining
premises the liability under the rule cannot arise.
Growing trees (non-poisonous) on one's land are natural use of !and. In Noble
v Harrison (1926) 2 K.B. 332, the branch of a non poisonous tree growing on
defendant's land, which overhung on the highway, suddenly broke and fell on plaintiff's
vehicle passing along the highway. The branch had broken due to some latent defect.
Held that the defendant could not be made liable under the Rylands rule
In T.C. Balakrishnan v TR. Subramanian (AIR 1968 Ker 151), it was held that
the use of explosives (extra-hazardous objects) in an open ground even on a day of
festival is a "non-natural" use of land because under the Indian Explosives Act for
making and storing explosive substances even on such places and at such occasions
licenses have to be taken.
Exceptions to the Rylands rule (Defences)
The rule of strict liability has been made subject to so many exceptions since it was
propounded in 1865 that it has lost much of its sting. The following exceptions to the
rule have been recognized by Rylands v Fletcher and some later cases:
(1) Plaintiff k own default (recognized in Rylands) - In Ponting v Noakes
(1894) 2 QB 281, the plaintiff's horse nibbed the poisonous leaves on
the boundary of the defendant and died. The defendant was held not
liable because damage would not have occurred but for the horse's own
intrusion into the defendant's land.
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(2) Act of God or (recognized in Rylands) - If the escape has been unf°rase._
andbecause of supernatural forces without any human imervernicn
defence of act of God can be pleaded. Thus, storm, tempest,
extraordinary rainfall, etc. fall under the category of act of God.- " t
If the embankments of ornamental lakes give way due to extraordinary rainfall
the person so collecting the water would not be liable under the rule (Nicholas y
Marsland). The Supreme Court in another context said that before heavy rain can be
accepted as a defence for the collapse of a culvert or bridge the defendant must
indicate what anticipatory preventive action was taken (S. Vendantachatya v Highways
Dept. of South Arcot, 1987).
(3) Act of third party/ stranger - Though the act of a third Party may be
relied on by way of defence, the defendant may still be liable in negligence
if he failed in foreseeing and guarding against the consequences to his
works of that third party's act.
(4) Consent of the plaintiff - In cases of volenti non fit injuria, i.e. where
the plaintiff has consented to the accumulation of the dangerous things
on the defendant's land the liability under the Rylands rule does not
arise. Such consent is implied where the source of danger is for the
common benefit of both the plaintiff and the defendant (e.g. the water
system, gas pipes or electric wiring).
Thus, in Carstairs v Taylor (1871) LR 6 Ex 217, the defendant was the plaintiff's
landlord and was living on the floor above him. Some rats damaged a rainwater box
maintained by the defendant for the benefit both of himself and plaintiff, and the
water running through injured plaintiff's goods below. It was held that no action lay.
(5) Statutory authority - No action will lie for doing that which the legislature
has authorized, i f it were done without negligence, although it does
occasion damage to anyone.
Applicability of Rylands Rule in India
The rule of strict liability is applicable in India, however, with certain deviations. The
Motor Vehicles Act, 1988, recognizes liability of the owner or insurer of the vehicle,
without proof of any negligence (`no fault liability'). Under the Indian Railways Act,
1961 and Carriers Act, 1865, the railways/ carriers can be made liable even if there
is no negligence on their part.The principle of Rylands v Fletcher is followed in
several Indian cases.
Ramnath v Kalanath ILR 1950 Nag 509 - When a person constructs a dam on his
land which has the effect of diverting the water from its natural channel on to the land
of aneighbour anddamage to neighbour's property results, he is liable to his neighbour
An owner of property has no right to let off water which has naturally accumulated
therein even for the purpose of protecting his property if this will have the effect of
transferring his misfortune to the property of another.
State of Mysore v Ramchandra (1970) 73 Born LR 732 - The State Govertunent
erected a reservoir adjoining the plaintiffs' land in order to provide drinking water
facilities to a village in the State. Due to very heavy rainfall the water from the
reservoir overflowedand flowed over the plaintiffs' land, causing considerable damage
14
Law of Torts 1 7 3
to the land and the crops standing thereon. Held that the fact that the danger materialized
subsequently by an act of God was not a matter which absolved the State from its
liability for the earlier negligence in that no proper channel for the flow or overflow
of water from the waste-weir was constructed by it in time.
Madras Railway Co. v Zamindar of Carvetnagaram (1874) 1 I.A. 364 (P.C.) - In this
case there was escape of water as a consequence of bursting of two ancient tanks
situated on the respondent's zamindaty. These tanks, which had been in existence
since ages, existed not merely for the benefit of the Zamindar, but also for the benefit
of his ryots (villagers). The escaping water caused damage to the appellant's property.
It was held that because of peculiar Indian conditions, the escape of water collected
for agricultural purposes might not be subject to strict liability. The owner on whose land
such water is collected is liable only if he is negligent A similar view was taken in N
Narrryana Bhattathrippad v Travancore Govt (AIR 1966 Travco. 225).
Rule o f Absolute Liability
In M.C. Mehra v Union of India (AIR 1987 SC 1086), the Supreme Court evolved the
rule of `absolute liability' as part of Indian law in preference to the rule of strict liability
laid down in Rylands v Fletcher. It expressly declared that the new rule was not subject
to any of the exceptions under the Rylands rule. Because those who had established
hazardous industries in and around thickly populated areas could escape the liability for
the havoc caused thereby pleading some exception to the Rylands rule. For instance
when the escape of the substance causing damage is due to the act of a stranger, say
due to sabotage, there is no liability under the Rylands rule.
The Court observed: -This' rule (Rylands v Fletcher) evolved in the 9th century
at a time when all these developments of science and technology had not taken
place....We have to evolve new principles and lay down new norms which would
adequately deal with the new problems which arise in a highly industrialized economy."
The Supreme Court also laid down that the measure of compensation should be
correlated to the magnitude and capacity of the enterprise, so that the compensation
can have the deterrent effect. The larger and more prosperous the enterprise, the
greater must be the amount of compensation payable by it ('Deep pocket' theory).
Thus, unlike the strict liability where ordinary or compensatory damages are awarded,
under absolute liability, exemplary damages are awarded. In Bhopal case (AIR 1990
SC 273), the Metha principle was applied in determining the compensation payable
to the gas victims.
The Bhopal Gas Leak disaster and the Shriram Gas Leak tragedy provided an
impetus for the passing of the Public Liability Insurance Act, 1991. The Act provides
for 'mandatory insurance' for the purpose of providing an immediate relief to the
persons affected by accidents occurring while handling any hazardous substance. The
Act covers every industry, public or private, which handles hazardous substances. The
Act incorporates the 'no-fault' liability standard.
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S. VICARIOUS LIABILITY INCLUDING
STATE LIABILITY
Vicarious Liability
Generally speaking a person is liable for his own acts, but in many cases he may be
held responsible for the torts committed by others. This is known as the 'vicarious
liability' i.e. liability incurred for, or instead of, another. The common examples of
such a liability are: Liability of the principal for the tort of his agent, Liability of
partners for each other's tort, and, Liability of the master for the tort of his servant,
Vicarious liability is a kind of 'strict liability', however, in vicarious liability the
liability arises because of the relationship between the principal and the wrongdoer,
while in the case of strict liability the liability arises out of the wrong itself.
(I) Principal and Agent
When the principal expressly or impliedly authorizes some act to be done he is liable
for such an act of the agent if the same has been in the course of performance of
duties as an agent. Where the owner of a car asked his friend to drive the car and he
causesan accident, the owner will be liable [Ormrod v Crosville Motor Services Ltd)
(2) Partners
If any one of the partners commits any tort in the ordinary course of business of the
firm all the other partners of the firm are liable for that to the same extent as the guilty
partner. The liability of each partner is joint and several.
(3) Master and Servant
A master is liable for the torts committed by his servant while acting in the course
of his employment. The servant is also liable. They are considered to be joint tort.
feasors and their liability is joint and several. The doctrine of liability of the master
for the act of his servant is based on the maxim respondeat superior which means 'let
the principal be liable' and it puts the master in the same position as if he had done
the act himself
It also derives validity from the maxim qui facit per alium facit per se, which
means 'he who does an act through another is deemed in law to do it himself. The
reason for the maxim seems to be the better position of the master to meet the claim
because of his larger pocket and also ability to pass on the burden of liability through
insurance. "Public policy, social convenience and rough justice" is the underlying idea.
Whois a servant?: A servant is a person employed by another to do work under the
directions and control of his employer. A servant should be distinguished from an
independent contractor. A master is liable for the tort committed by his servant only.
An independent contractor is one who undertakes to do certain work and regarding
the manner in which the work is to be done he is his own master and exercises his
own discretion. My car driver, for example, is my servant and for his negligent
driving I will be liable. On the other hand, if I hire a taxi for going from one place
to another the taxi driver is an independent contractor and if he drives negligently
will not be liable for his wrongful act.
15
Law of Torts 1 7 5
In some exceptional cases, an employer can be made liable for the wrongs of
the independent contractor (viz. strict liability). Also, if an employer authorizes the
doing of an illegal act or a tort (e.g. a passenger of a taxi orders the taxi-driver to
drive fast), or subsequently ratifies the same, he can be made liable for such an act.
Further, an employer may be liable for the negligence of independent contractor if the
employer carelessly appoints as independent contractor where the risk of harm, unless
precautions are taken, is foreseeable.
The recent trend is to include even those persons into the category of "servants"
who are not subject to control viz hospital staff (even part-time employees) and
borrowed servants. When a master lends the services of his servant to another person
and the servant then commits a tort the question, which arises, is whether the permanent
master would be liable for the servant's act or the person who is making temporary
use of the servant's services. That one of the two, who has the power to control the
manner in which the act of the servant is to be done, will be liable. In Mersey Docks
& Harbour Board v Coggins & Griffiths (Liverpool) Ltd. (1947) A.C. 1, a harbour
board, let out a mobile crane along with a skilled driver to certain stevedores for
loading a ship. Due to the negligence of the driver, while loading a ship, X was
injured. The harbour board that was permanent employer was held liable.
In Smt. Kundan Kaur v S. Shankar Singh (AIR 1966 Punj. 394) the partners
of a firm temporarily gave their truck along with a driver on hire to a transport
company for transporting certain goods. Due to rash and negligent driving of the
driver the vehicle met with an accident and an employee of the transport company
was killed. The court observed that there was only a transfer of services and not of
control of the driver from the general employer to the hirer of vehicle and as such the
partners of firm were liable. In case of hiring, a presumption has been generally raised
that there is only transfer of services rather than that of the servant.
The course of employment— "A wrong falls within the course of employment of the
servant if it is necessarily incidental to something which servant is employed to do."
Further, an act falls within the course of employment when either the master has
authorized the same or it is a wrongful mode of doing some authorized act e.g., if I
authorize a servant to drive and he drives negligently, or I authorize a servant to deal
with the clients and he deals with them fraudulently. However, if 1 send my servant
to make some purchogos for me from the market and he utters some defamatory words
there, the defamation by my servant is outside the course of employment and I cannot
be made liable for the same. Some more illustrations in this regard are as follows:-
(i) When the managing clerk of a firm of solicitors, while attending a client
on behalf of the firm, fraudulently got the property of the client transferred
in his own name the act was held to be done in the course of his
employment and the firm was held liable (Llyod v Grace, Smith & Co.).
However, if a customer of the bank, gives some amount/ cheque to the
bank employee (in his capacity as a friend) for being deposited in the
account, without obtaining any receipt for the same, the bank employee
is not deemed to be acting within the scope of his employment and if
he misappropriates the amount the bank will not be liable (Slate Bank
of India v Shyama Devi AIR 1978 SC 1263).
(ii) I n Century Insurance Co. Ltd v Northern Ireland R.T.B. (1942) A.C.
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509, A's servant, the driver of a petrol lorry, while transferring petrol
from the lorry to an underground tank struck a match to light a ei
and threw it on the floor. This resulted in the fire and an explosion
causing damage to B's property. The act of the driver was held to be,,,•
the course of employment and A was held liable for the same.
(iii) I n Beard v London General Omnibus Co. (1900) 2 Q.B. 530, at the
of the journey the driver of a bus went to take his dinner. During his
temporary absence the conductor drove the bus in order to turn it round
to make it ready for the next journey and negligently caused an accident.
Since driving was not the kind of act that the conductor was authorized
to do the conductor was acting out of the course o f employment for
which the master was held not liable.
(iv) I f the servant himself negligently delegates his authority and instead of
himself carefully performing the duty allows the same to be negligently
performed by somebody else the master will be liable for such negligence
of the servant. Thus, in the above case, i f the driver had allowed the
conductor to drive the bus, the master would have been liable.
(v) The employer may be liable even if he forbids his servant from doing
certain act. In Limpus v London General Omnibus Co. (1862) H & C.
526, the defendant's driver, in defiance of the express instructions not
to race with other omnibuses, tried to obstruct a rival omnibus and
thereby caused an accident. The driver had been engaged for driving
and the act done on his part was negligent driving. Inspire o f the
prohibition the action was still in the course o f the employment for
which the master was held liable.
However, doing an act which is altogether different from the purpose for which
the servant has been engaged is outside the course of employment and i f the same is
also prohibited (the driver was instructed not to give lift to unauthorized persons), the
master will not be liable. However, it has been held that the mere fact that the person
taking the lift is a stranger should not necessarily means that the driver's act is outside
the course of empolyment. The point is if the servant's act is totally unconcerned with
the master's business (e.g. when he takes his own family in the master's vehicle for
a picnic) the act should be considered to be outside the course o f employment.
Vicarious Liability o f the State
In England, after the passing of the Crown Proceedings Act, 1947, the Crown is liable
for a tort committed by its servants just like a private master. In India, Art. 300 of the
Constitution provides that the Union of India and the States can sue and be sued, but
as to the circumstances under which that can be done, it points to the position prevailing
before the commencement of the Constitution. The Government of India Act, I935 also
laid down a similar provision. The earliest enactments laid down that the Secretary of
State for India could be sued just as the East India Company. Thus, the liability of the
State today is the same as that of the East India Company in its time.
While in England, it is no defence for the State that the tort committed by its
servants was in discharge of obligations imposed by law, in India, the same has been
16
Law of Torts 1 7 7
considered to be a defence in a number of cases. In State of Rajasthan v Vidyawati
(mg 1962 SC 933), the Supreme Court opined that the State should be liable just like
an ordinary employer. However, in Kasturi La! Ralia Ram Jai v State of U.P. (AIR
1965 SC 1039) it stated that if the act of the Government servant was one, which could
be considered to be in delegation of sovereign powers the State would not be liable.
Today, a number of decisions of the Supreme Court have deviated from the ratio
of Kasturilars case. In Nagendra Rao & Co. v State of A.R. (1994) 6 SCC 205, the
Supreme Court held that in the context of modem concept of sovereignty (sovereignty
now vests in the people) the doctrine of "sovereign immunity" stands diluted and the
distinction between sovereign and non-sovereign functions no longer exists. Further, the
functions of modern welfare State are not confined only to maintaining law and order,
but extend to engaging in all activities—economic, social, commercial, etc. The Court
observed that no legal system can place the State above law.
The court held that barring functions such as administration o f justice,
maintenance of law and order, defence and repression of crime (except when Art. 21
of the Constitution breached), which are among the primary and unalienable functions
of a Government, the State couldn't claim any immunity.
Functions relating to trade, business and commerce and welfare activities are
amongst the 'non-sovereign' functions. Broadly speaking such functions in which
private individuals can be engaged in, are not sovereign functions. The Law
Commission of India (First Report, 1956) also recommended four exceptions to the
rule of State liability-
(i) Act o f State - It means an act of the sovereign power directed against
another sovereign power.
(ii) Judicial acts - It means acts done by judicial officers and persons
executing warrants and orders of judicial officers.
(iii) A c t s done in the exercise of political functions o f State e.g. foreign
affairs, war and peace, acts in emergency, etc.
(iv) A c t s done in relation to defence forces.
The following are the instances of "sovereign" functions:
(i) Maintenance o f defence force e.g. construction o f a military road,
distribution o f meals to the army personnel on duty, checking army
personnel on duty [Ban Amrik Singh v Union o f India].
(ii) Maintenance of law and order e.g. if the plaintiff is injured while police
personnel are dispersing unlawful crowd or plaintiff's loudspeaker set is
damaged when the police makes a lathi charge to quell a riot (State of
M.P. v Chironji Lal, AIR 1981 M.P. 85).
The following are the instances of "non-sovereign" functions:
(I) Maintenance of dockyard (P & 0. Steam Navigation Co. case).
(ii) A truck belonging to the public works department carrying material for
the construction of a road bridge (Rup Ram v The Punjab State, AIR
1961 Punj. 336); Famine relief work (Shyam Sunder v State of Rajasthan,
AIR 1964 SC 890).
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(iii) A Government jeep car being taken from the workshop to the Collector, 1SCC 422, the State was ordered to pay compensation to innocent
bungalow for the Collector's use (State of Rajasthan v Vidycnvaii victims of police firing.
AIR
1962 SC 933).
In Sebastian M Hongray v U01 (AIR 1984 SC 1026). exemplary damages
.(iv) Carrying military jawans from Railway Station to the Unit Hearlquarit were awarded for disappearance of two persons in military custody.
(Union of India v Savita Sharma AIR 1979 J. & K. 6). Similarly, carry.:
ration and sepoys within the country during peace time in the course In Bhim Singh v Stare of f. & K. (AIR 1986 SC 494) and Rudd Shah
movement of troops after the hostilities were over. v State of Bihar (AIR 1983 SC 1086). the State was held liable for
wrongful detention and monetary compensation was awarded.
(v) Carrying Air Force officers from one place to another in Delhi fe,
In N. Nagendra Rao & Co. v Slate of A.P. (1994) 6 SCC 205. held that
playing hockey and basket ball (Satya Wall Devi v. U01, AIR 1967 Do
when due to the negligent act of the officers of State a citizen suffers
98), or bringing back military officers from the place of exercise to the
any damage the State will be liable to pay compensation. In this case.
college of combat (Nandram Heeralal v 1101, AIR 1978 M.P. 209).
appellant's huge stocks of food grains and fertilizers were seized. He
(vi) Taking a truck for imparting training to new M.T. Recruits (Jabal Kay, NM later found not guilty of blackmarketing or adulteration. When he
v Chief of Army Staff AIR 1978 All 417). went to take the delivery of the stock he found that the stock has been
(vii) Transporting of a machine, and other equipment to a military training spoilt both in quality and quantity.
school (Union of India v Sugrabai AIR 1969 Born 13).
Where some military jawans found some' firewood lying by river side
and carried the same away for purposes of camp fire and fuel (Roup L,
4. 4 0 1 NT TORTFEASORS
v U01 AIR 1972 3. & K. 22).
The present law relating to the vicarious liability of State is not satisfactory iz
India. A proper legislation is lacking in this regard. It is left to courts to develop alt
All persons who aid, or counsel, or direct or join in the committal of a wrongful act.
law according to the -views of the judges. The position prevailing before the
are joint tortfeasors. Thus, when two or more persons commit a tort acting in the
commencement of the Constitution remains unchanged though the Parliatitent andit
furtherance of a common design, they arc known as *joint tort feasors'. They are to
•State Legislature have been empowered to pass law to change the position (Ankle
be distinguished from 'independent tortfeasors' who act independently of each other
300 of Constitution). In the absence of legislation, it will be in consonance with siA:
but concur to produce a single damage.
justice demanded by the changed conditions and the concept of welfare State that the
courts will follow the recent decisions of the Supreme, Court rather than Kasturi14. For example, tWO motorists driving negligently and coining from the opposite
direction collide and a pedestrian is crushed between the two cars. these motorists are
Torts- Committed in Exercise of Statutory Duties Independent tortfeasors. In Brook v Boot 09281 2 KB 578, A and B entered Z's
In India, tort committed while performing duty in discharge of obligations imposed premises to search for an escape of gas. Each one of them, in turn applied naked light
by law has been considered to be a defence. However, for tharit is necessary that the to the gas pipe. A's application resulted in an explosion, causing damage to Z's
tortious act committed by the servant be in discharge of, sovereign functions. premises. In this case, even though the act of A alone had caused the explosion but
both A and B were considered to be joint tortfeasors and thus liable for the damage.
In Rain Ghtdani v Slate of UP (AIR 1950 MI 206), the police authorities
recoveredsome stolen property and deposited the same in the Malkhana. The propert "Sometimes common design may be imputed to persons who are in control of
animals, i f their animals happen to exhibit such an instinct. For example, i f my dog
wasagain stolen from the Malkhana, The Government of U.P. was held not liable for
or your's jointly worry X's sheep, both of us will be deemed to be joint tortfeasors
thesame to the owner of the property as the government servants were performing
even though none of us had in fact the design to cause injury to X's sheep" (Winfield).
obligations imposed by law. Similarly, in Kasturi La! Rolla Ram fain case, it was
The conunon examples of joint tortteasors are: principal and agent, master and scram,
that the power to arrest a person, to search him, and to seize property found with hint
and partners (vicarious liability I.
arepowers conferred on the specified officers by statute [See also, State of UP
hihi Ram AIR 1971 All 162).
Liability o f Joint Tortfeasors
Recent Trends
(a) Joint tortfeoscus are jointly and severally liable
in i l l Mile of Guiana v Menton M a h o m e d ( A I R 1 9 6 7 S c 8 8 5 ) .
An action may be brought against anyone, any number, or all of them. I t an action
held that afterseizure the position of the Government was that of bailee
is brought against some of them only, it is considered in conunon law that a further
The Government, therefore, had a duty to pay compensation.
aetion could not he Nought against others because there was only one cause o f
I I n PeopleSUnion jar Democratic Rights v Police t D e l l a (19`411
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Guide for Competitive Examinations
action. However, this rule has been abolished by the Law Reform (Married womb
and Tortfeasors) Act, 1935 and an action against one or some of the joint tortreaseen
is no bar to an action against the other tortfeasors, who would also have been liable
for the same damage. A judgment obtained against all of them may be execute .e
fullfulagainst anyone or more of them.
The object of the above stated provision is to avoid hardship to the plaintiff wha
could not recover the amount of the decree because the joint tortfeasor sued was found
insolvent. The fact that the claim is barred by limitation as against one will not in itself
free the others from liability [Harihar Pershad v Bholi Pershad (1907)6 CU 383]
It may be noted that liability of 'independent tortfeasors' is only several (i.e.
there could be as many causes of action as the number of tortfeasors). Since they are
severally liable, an action against one of them is no bar to an action against the other
and a release of one of them do not results in the release of others.
(b) Release of one of the joint tortfeasors releases all others as well
The reason being that the cause of action, which is one and indivisible, having been
released, all persons otherwise liable therefore are consequently released. Although
the release of one of the joint tortfeasors releases others from liability, a mere covenant
or agreement not to sue one of them does not have the same effect. Because such an
agreement (or compromise) merely prevents the cause of action from being enforced
against the particular wrong-doer with whom it is entered into.
Thus, the acceptance of a sum of money from one of the joint tortfeasors in full
discharge of his own personal liability does not operate as a release as far as the other
joint tortfeasors are concerned as there is no full satisfaction of the claim. In Khusro
v N.A.Gazder (AIR 1970 SC 1468), the plaintiffs filed a suit against various defendants
for defamation. Meanwhile one of the defendants tendered an unconditional apology
to the plaintiffs. The plaintiffs accepted the apology and a decree was passed
accordingly. Held that this compromise could not be treated to be a full satisfaction
for the tort alleged to have been committed by the defendants.
(c) Liability of the innocent joint tortfeasor
If, through no fault of his own, a person gets mixed up in the tortious acts of the
others so as to facilitate their wrongdoing, he may incur no personal liability but he
comes under a duty to assist the person who has been wronged by giving him full
information and disclosing the identity of the wrong-doers.
(d)Righu of tortfeasors inter-se contribution and indemnity
At common law no action for contribution was maintainable by one wrong-doer
against another, although the one who sought contribution might have been compelled
to satisfy the full damages. This is known as the rule in Merryweather v Nixan (1799)
8 TR 186. The rule, however, has been abrogated by the Law Reform act, 1935,
according to which if one of the joint tortfeasors has been made to pay more than his
share of damages he can demand contribution in respect of the same from the other
wrong-doers. The amount of contribution recoverable firm any person shall be just
and equitable having regard to the extent of his responsibility for the damage
(apportionment of liability).
18
Law of Torts 1 8 1
There may be situations where the joint tortfeasor, who has been made to pay
for the whole of the loss, may not be guilty at all and some other joint tortfeasor may
be solely to blame for the wrongful act. In such a case the guilty tortfeasor must fully
compensate that one who has actually paid compensation, or in other words, one joint
tortfeasr must indemnifr the other. Thus, an innocent master can claim complete
contribution from his servant whose negligent act had made the master vicariously
liable to the injured party.
The rule laid down in Merryweather case is not applicable in India. The
Allahabad High Court is of the view that the rule is devoid of the basic principle of
equity that there should be an equality of burden and benefit [ DharniDhar v Chandra
Shekhar AIR 1951 All 774].
5. NEGLIGENCE
■
Generally speaking one is responsible for the direct consequences of his negligent
acts where he is placed in such a position with regard to another that it is obvious that
if he does not use due care in his own conduct he will cause injury to another.
Negligence has two meanings in law of torts:
(I) Negligence as state of mind- Negligence is a mode of committing certain
torts, e.g. negligently or carelessly committing trespass, nuisance or
defamation. This is the subjective meaning of negligence advocated by the
Austin, Salmond and Winfield.
(2) Negligence as a type of conduct- Negligence is a conduct, not a state of
mind- conduct, which involves the risk of causing damage. This is the objective
meaning of negligence, which treats negligence as a separate or specific tort.
Actionable negligence consists in the neglect of the use of ordinary care or skill
towards a person to whom the defendant owes the duty of observing ordinary care or
skill, by which neglect the plaintiff has suffered injury, to his person or property
[Heaven v Pender (1883) 11 Q.B.D. 503]. In an action for negligence, the plaintiff
has to prove the following essentials:
(1) That the defendant owed duty of care to the plaintiff.
(2) T h e defendant made a breach of the duty i.e. he failed to exercise due care
and skill.
(3) Plaintiff suffered damage as a consequence thereof.
( I ) Duty o f Care t o the Plaintiff
(i) I t means a legal duty rather than mere moral, religious or social duty. It is not
sufficient to show that the defendant was careless; the plaintiff has to establish
that the defendant owed to the plaintiff a specific legal duty to take care.
In Donoghue v Stevenson (1932) A.C. 562, the appellant plaintiff drank a bottle
of ginger beer which was brought from a retailer by her friend. The bottle in fact
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178 L a w Guide for Competitive E x a m i n a t i o n s Law of Torts _ 1 7 9

(iii) A Government jeep car being taken from the workshop to the Collector, 1SCC 422, the State was ordered to pay compensation to innocent
bungalow for the Collector's use (State of Rajasthan v Vidycnvaii victims of police firing.
AIR
1962 SC 933).
In Sebastian M Hongray v U01 (AIR 1984 SC 1026). exemplary damages
.(iv) Carrying military jawans from Railway Station to the Unit Hearlquarit were awarded for disappearance of two persons in military custody.
(Union of India v Savita Sharma AIR 1979 J. & K. 6). Similarly, carry.:
ration and sepoys within the country during peace time in the course In Bhim Singh v Stare of f. & K. (AIR 1986 SC 494) and Rudd Shah
movement of troops after the hostilities were over. v State of Bihar (AIR 1983 SC 1086). the State was held liable for
wrongful detention and monetary compensation was awarded.
(v) Carrying Air Force officers from one place to another in Delhi fe,
In N. Nagendra Rao & Co. v Slate of A.P. (1994) 6 SCC 205. held that
playing hockey and basket ball (Satya Wall Devi v. U01, AIR 1967 Do
when due to the negligent act of the officers of State a citizen suffers
98), or bringing back military officers from the place of exercise to the
any damage the State will be liable to pay compensation. In this case.
college of combat (Nandram Heeralal v 1101, AIR 1978 M.P. 209).
appellant's huge stocks of food grains and fertilizers were seized. He
(vi) Taking a truck for imparting training to new M.T. Recruits (Jabal Kay, NM later found not guilty of blackmarketing or adulteration. When he
v Chief of Army Staff AIR 1978 All 417). went to take the delivery of the stock he found that the stock has been
(vii) Transporting of a machine, and other equipment to a military training spoilt both in quality and quantity.
school (Union of India v Sugrabai AIR 1969 Born 13).
Where some military jawans found some' firewood lying by river side
and carried the same away for purposes of camp fire and fuel (Roup L,
4. 4 0 1 NT TORTFEASORS
v U01 AIR 1972 3. & K. 22).
The present law relating to the vicarious liability of State is not satisfactory iz
India. A proper legislation is lacking in this regard. It is left to courts to develop alt
All persons who aid, or counsel, or direct or join in the committal of a wrongful act.
law according to the -views of the judges. The position prevailing before the
are joint tortfeasors. Thus, when two or more persons commit a tort acting in the
commencement of the Constitution remains unchanged though the Parliatitent andit
furtherance of a common design, they arc known as *joint tort feasors'. They are to
•State Legislature have been empowered to pass law to change the position (Ankle
be distinguished from 'independent tortfeasors' who act independently of each other
300 of Constitution). In the absence of legislation, it will be in consonance with siA:
but concur to produce a single damage.
justice demanded by the changed conditions and the concept of welfare State that the
courts will follow the recent decisions of the Supreme, Court rather than Kasturi14. For example, tWO motorists driving negligently and coining from the opposite
direction collide and a pedestrian is crushed between the two cars. these motorists are
Torts- Committed in Exercise of Statutory Duties Independent tortfeasors. In Brook v Boot 09281 2 KB 578, A and B entered Z's
In India, tort committed while performing duty in discharge of obligations imposed premises to search for an escape of gas. Each one of them, in turn applied naked light
by law has been considered to be a defence. However, for tharit is necessary that the to the gas pipe. A's application resulted in an explosion, causing damage to Z's
tortious act committed by the servant be in discharge of, sovereign functions. premises. In this case, even though the act of A alone had caused the explosion but
both A and B were considered to be joint tortfeasors and thus liable for the damage.
In Rain Ghtdani v Slate of UP (AIR 1950 MI 206), the police authorities
recoveredsome stolen property and deposited the same in the Malkhana. The propert "Sometimes common design may be imputed to persons who are in control of
animals, i f their animals happen to exhibit such an instinct. For example, i f my dog
wasagain stolen from the Malkhana, The Government of U.P. was held not liable for
or your's jointly worry X's sheep, both of us will be deemed to be joint tortfeasors
thesame to the owner of the property as the government servants were performing
even though none of us had in fact the design to cause injury to X's sheep" (Winfield).
obligations imposed by law. Similarly, in Kasturi La! Rolla Ram fain case, it was
The conunon examples of joint tortteasors are: principal and agent, master and scram,
that the power to arrest a person, to search him, and to seize property found with hint
and partners (vicarious liability I.
arepowers conferred on the specified officers by statute [See also, State of UP
hihi Ram AIR 1971 All 162).
Liability o f Joint Tortfeasors
Recent Trends
(a) Joint tortfeoscus are jointly and severally liable
in i l l Mile of Guiana v Menton M a h o m e d ( A I R 1 9 6 7 S c 8 8 5 ) .
An action may be brought against anyone, any number, or all of them. I t an action
held that afterseizure the position of the Government was that of bailee
is brought against some of them only, it is considered in conunon law that a further
The Government, therefore, had a duty to pay compensation.
aetion could not he Nought against others because there was only one cause o f
I I n PeopleSUnion jar Democratic Rights v Police t D e l l a (19`411
180 L a w https://t.me/RajasthanJudiciaryMaterials
Guide for Competitive Examinations
action. However, this rule has been abolished by the Law Reform (Married womb
and Tortfeasors) Act, 1935 and an action against one or some of the joint tortreaseen
is no bar to an action against the other tortfeasors, who would also have been liable
for the same damage. A judgment obtained against all of them may be execute .e
fullfulagainst anyone or more of them.
The object of the above stated provision is to avoid hardship to the plaintiff wha
could not recover the amount of the decree because the joint tortfeasor sued was found
insolvent. The fact that the claim is barred by limitation as against one will not in itself
free the others from liability [Harihar Pershad v Bholi Pershad (1907)6 CU 383]
It may be noted that liability of 'independent tortfeasors' is only several (i.e.
there could be as many causes of action as the number of tortfeasors). Since they are
severally liable, an action against one of them is no bar to an action against the other
and a release of one of them do not results in the release of others.
(b) Release of one of the joint tortfeasors releases all others as well
The reason being that the cause of action, which is one and indivisible, having been
released, all persons otherwise liable therefore are consequently released. Although
the release of one of the joint tortfeasors releases others from liability, a mere covenant
or agreement not to sue one of them does not have the same effect. Because such an
agreement (or compromise) merely prevents the cause of action from being enforced
against the particular wrong-doer with whom it is entered into.
Thus, the acceptance of a sum of money from one of the joint tortfeasors in full
discharge of his own personal liability does not operate as a release as far as the other
joint tortfeasors are concerned as there is no full satisfaction of the claim. In Khusro
v N.A.Gazder (AIR 1970 SC 1468), the plaintiffs filed a suit against various defendants
for defamation. Meanwhile one of the defendants tendered an unconditional apology
to the plaintiffs. The plaintiffs accepted the apology and a decree was passed
accordingly. Held that this compromise could not be treated to be a full satisfaction
for the tort alleged to have been committed by the defendants.
(c) Liability of the innocent joint tortfeasor
If, through no fault of his own, a person gets mixed up in the tortious acts of the
others so as to facilitate their wrongdoing, he may incur no personal liability but he
comes under a duty to assist the person who has been wronged by giving him full
information and disclosing the identity of the wrong-doers.
(d)Righu of tortfeasors inter-se contribution and indemnity
At common law no action for contribution was maintainable by one wrong-doer
against another, although the one who sought contribution might have been compelled
to satisfy the full damages. This is known as the rule in Merryweather v Nixan (1799)
8 TR 186. The rule, however, has been abrogated by the Law Reform act, 1935,
according to which if one of the joint tortfeasors has been made to pay more than his
share of damages he can demand contribution in respect of the same from the other
wrong-doers. The amount of contribution recoverable firm any person shall be just
and equitable having regard to the extent of his responsibility for the damage
(apportionment of liability).
20
Law of Torts 1 8 1
There may be situations where the joint tortfeasor, who has been made to pay
for the whole of the loss, may not be guilty at all and some other joint tortfeasor may
be solely to blame for the wrongful act. In such a case the guilty tortfeasor must fully
compensate that one who has actually paid compensation, or in other words, one joint
tortfeasr must indemnifr the other. Thus, an innocent master can claim complete
contribution from his servant whose negligent act had made the master vicariously
liable to the injured party.
The rule laid down in Merryweather case is not applicable in India. The
Allahabad High Court is of the view that the rule is devoid of the basic principle of
equity that there should be an equality of burden and benefit [ DharniDhar v Chandra
Shekhar AIR 1951 All 774].
5. NEGLIGENCE
■
Generally speaking one is responsible for the direct consequences of his negligent
acts where he is placed in such a position with regard to another that it is obvious that
if he does not use due care in his own conduct he will cause injury to another.
Negligence has two meanings in law of torts:
(I) Negligence as state of mind- Negligence is a mode of committing certain
torts, e.g. negligently or carelessly committing trespass, nuisance or
defamation. This is the subjective meaning of negligence advocated by the
Austin, Salmond and Winfield.
(2) Negligence as a type of conduct- Negligence is a conduct, not a state of
mind- conduct, which involves the risk of causing damage. This is the objective
meaning of negligence, which treats negligence as a separate or specific tort.
Actionable negligence consists in the neglect of the use of ordinary care or skill
towards a person to whom the defendant owes the duty of observing ordinary care or
skill, by which neglect the plaintiff has suffered injury, to his person or property
[Heaven v Pender (1883) 11 Q.B.D. 503]. In an action for negligence, the plaintiff
has to prove the following essentials:
(1) That the defendant owed duty of care to the plaintiff.
(2) T h e defendant made a breach of the duty i.e. he failed to exercise due care
and skill.
(3) Plaintiff suffered damage as a consequence thereof.
( I ) Duty o f Care t o the Plaintiff
(i) I t means a legal duty rather than mere moral, religious or social duty. It is not
sufficient to show that the defendant was careless; the plaintiff has to establish
that the defendant owed to the plaintiff a specific legal duty to take care.
In Donoghue v Stevenson (1932) A.C. 562, the appellant plaintiff drank a bottle
of ginger beer which was brought from a retailer by her friend. The bottle in fact
180 L a w https://t.me/RajasthanJudiciaryMaterials
Guide for Competitive Examinations
action. However, this rule has been abolished by the Law Reform (Married womb
and Tortfeasors) Act, 1935 and an action against one or some of the joint tortreaseen
is no bar to an action against the other tortfeasors, who would also have been liable
for the same damage. A judgment obtained against all of them may be execute .e
fullfulagainst anyone or more of them.
The object of the above stated provision is to avoid hardship to the plaintiff wha
could not recover the amount of the decree because the joint tortfeasor sued was found
insolvent. The fact that the claim is barred by limitation as against one will not in itself
free the others from liability [Harihar Pershad v Bholi Pershad (1907)6 CU 383]
It may be noted that liability of 'independent tortfeasors' is only several (i.e.
there could be as many causes of action as the number of tortfeasors). Since they are
severally liable, an action against one of them is no bar to an action against the other
and a release of one of them do not results in the release of others.
(b) Release of one of the joint tortfeasors releases all others as well
The reason being that the cause of action, which is one and indivisible, having been
released, all persons otherwise liable therefore are consequently released. Although
the release of one of the joint tortfeasors releases others from liability, a mere covenant
or agreement not to sue one of them does not have the same effect. Because such an
agreement (or compromise) merely prevents the cause of action from being enforced
against the particular wrong-doer with whom it is entered into.
Thus, the acceptance of a sum of money from one of the joint tortfeasors in full
discharge of his own personal liability does not operate as a release as far as the other
joint tortfeasors are concerned as there is no full satisfaction of the claim. In Khusro
v N.A.Gazder (AIR 1970 SC 1468), the plaintiffs filed a suit against various defendants
for defamation. Meanwhile one of the defendants tendered an unconditional apology
to the plaintiffs. The plaintiffs accepted the apology and a decree was passed
accordingly. Held that this compromise could not be treated to be a full satisfaction
for the tort alleged to have been committed by the defendants.
(c) Liability of the innocent joint tortfeasor
If, through no fault of his own, a person gets mixed up in the tortious acts of the
others so as to facilitate their wrongdoing, he may incur no personal liability but he
comes under a duty to assist the person who has been wronged by giving him full
information and disclosing the identity of the wrong-doers.
(d)Righu of tortfeasors inter-se contribution and indemnity
At common law no action for contribution was maintainable by one wrong-doer
against another, although the one who sought contribution might have been compelled
to satisfy the full damages. This is known as the rule in Merryweather v Nixan (1799)
8 TR 186. The rule, however, has been abrogated by the Law Reform act, 1935,
according to which if one of the joint tortfeasors has been made to pay more than his
share of damages he can demand contribution in respect of the same from the other
wrong-doers. The amount of contribution recoverable firm any person shall be just
and equitable having regard to the extent of his responsibility for the damage
(apportionment of liability).
21
Law of Torts 1 8 1
There may be situations where the joint tortfeasor, who has been made to pay
for the whole of the loss, may not be guilty at all and some other joint tortfeasor may
be solely to blame for the wrongful act. In such a case the guilty tortfeasor must fully
compensate that one who has actually paid compensation, or in other words, one joint
tortfeasr must indemnifr the other. Thus, an innocent master can claim complete
contribution from his servant whose negligent act had made the master vicariously
liable to the injured party.
The rule laid down in Merryweather case is not applicable in India. The
Allahabad High Court is of the view that the rule is devoid of the basic principle of
equity that there should be an equality of burden and benefit [ DharniDhar v Chandra
Shekhar AIR 1951 All 774].
5. NEGLIGENCE
■
Generally speaking one is responsible for the direct consequences of his negligent
acts where he is placed in such a position with regard to another that it is obvious that
if he does not use due care in his own conduct he will cause injury to another.
Negligence has two meanings in law of torts:
(I) Negligence as state of mind- Negligence is a mode of committing certain
torts, e.g. negligently or carelessly committing trespass, nuisance or
defamation. This is the subjective meaning of negligence advocated by the
Austin, Salmond and Winfield.
(2) Negligence as a type of conduct- Negligence is a conduct, not a state of
mind- conduct, which involves the risk of causing damage. This is the objective
meaning of negligence, which treats negligence as a separate or specific tort.
Actionable negligence consists in the neglect of the use of ordinary care or skill
towards a person to whom the defendant owes the duty of observing ordinary care or
skill, by which neglect the plaintiff has suffered injury, to his person or property
[Heaven v Pender (1883) 11 Q.B.D. 503]. In an action for negligence, the plaintiff
has to prove the following essentials:
(1) That the defendant owed duty of care to the plaintiff.
(2) T h e defendant made a breach of the duty i.e. he failed to exercise due care
and skill.
(3) Plaintiff suffered damage as a consequence thereof.
( I ) Duty o f Care t o the Plaintiff
(i) I t means a legal duty rather than mere moral, religious or social duty. It is not
sufficient to show that the defendant was careless; the plaintiff has to establish
that the defendant owed to the plaintiff a specific legal duty to take care.
In Donoghue v Stevenson (1932) A.C. 562, the appellant plaintiff drank a bottle
of ginger beer which was brought from a retailer by her friend. The bottle in fact
 https://t.me/RajasthanJudiciaryMaterials
182 L a w Guide for Competitive Examinations
contained the decomposed body of snail, which was found out by her when she had
alreadyconsumed a part of the contents of the bottle. The bottle was of dark opaque
glasssealed with a metal cap so that its contents could not be ascertained by inspection,
Held that the manufacturer of the bottle was responsible for his negligence
towards the plaintiff According to Lord Atkin: "A manufacturer of products, which
hesells in such form as to show that he intends them to reach the ultimate consumer
in the form in which they left him with no reasonable possibility o f intermediate
examination and with the knowledge that the absence of the reasonable care in the
preparation or putting up of the products will result in an injury to consumer's life
or property, owes a duty to the customer to take that reasonable care."
The House of Lords also rejected the plea that there was no contractual
relationship between the manufacturer and plaintiff. Lord Atkin said: "The rule that
you are to love your neighbour becomes in law 'you must not injure your neighbour'.
Neighbours are persons so closely and directly affected by my act that I ought
reasonably to have them in contemplation as being so affected when 1 am directing
my mind to the acts or omissions in question."
(ii) Whether the defendant owes a duty to the plaintiff or not depends on
reasonable foreseeability of the injury to the plaintiff In Heaven v Penden
held that the duty arises only if a person is near to the person or property
of another.
A useful test to decide culpability is to determine what a 'reasonable man' (i.e.
aman of ordinary prudence or intelligence) would have foreseen and behaved under
the circumstances. The standard of foresight of the reasonable man is an impersonal
or objective test as it is independent of the idiosyncracies (patterns of behaviour) of
the particular person whose conduct is in question. The reasonable man is presumed
to be free both from over-apprehension and from over-confidence. However, the
standard of care of the reasonable man involves in its application a subjective element.
In Rural Transport Service v Bezlum Bibi (AIR 1980 Cal 165), the conductor
of anoverloaded bus invited passengers to travel on the roof of the bus. On the way
thebus swerved on the right side to overtake a cart. One of the passengers on the roof
of the bus was struck by an overhanging branch of a tree. He fell down and died
becausa of injuries. Held that there was negligence on the part of both the driver and
conductor of the bus.
In Sushma Ultra v M.P. State Road Transport Ccrpn. (1947 A.C. J. 87 (M.P.).
the plaintiff was resting her elbow on the widow sill. A truck coming from the
opposite direction hit her in her elbow as a result of which she received severe
injuries. It was held that the habit of resting elbow on the widow of the bus is so
common that it must enter into contemplation of a reasonable driver. It is the duty of
the driver to pass on the road at a reasonable distance front the other vehicles.
If thegates of arailway crossing are open and a truck trying to cross the railway
line is hit by an incoming train, the Railway administration is liable for the same.
Therewas negligence on the part of the administration in not closing the level crossing
gate when the train was about to arrive.
fin) When the injury to the plaintiff is not foreseeable, then the defendant is not
liable.
22
Law of Torts 1 8 3
In Glasgow C'orpn. v Muir (1943) 2.A11.E.R. 44, the managers of the defendant
corporation tearooms permitted a picnic party to have their food in the tearoom. Two
members of the picnic party were carrying a big urn containing 6-9, gallons,of,41 to: .
atearoom through a passage where some children were buying sweets and ice creams.
suddenly one o f the persons lost the grip of the handle of urn and six children.includingel
ud the plaintiff, were injured. Held that the managers could not anticipate such
an eventincludingand, therefore, she had no duty to take precautions. Hence, neither she nor
the corporation could be held liable for injury.
(iv) T o establish negligence it is not enough to prove that the injury was
foreseeable, but a reasonable likelihood of the injury has also to be shown.
The duty is to guard against reasonable probabilities rather than bare or
remote or fantastic possibilities.
In Fordo'? v Hcircauri (1932) 146 L.T. 391. the defendant parked his car by the
roadside and left a dog inside the car. The dog jumped out and smashed a glass panel.
A splinter from this glass injured the plaintiff while he was walking past the car. Held
that the accident being very unlikely, the defendant was not liable. Similarly. if a plug
in a pipeline, which has been working satisfactorily, bursts because of exceptionally
severe frost which could not have been anticipated, and the water floods the premises
of the plaintiff, the plaintiff cannot bring an action for negligence [Birth v Birmingham
Waterworks Co. (1856) 11 E. 781].
In Bolton v Stone (1951) A.C. 850, a person on road was injured by a ball hit
by a player on a cricket ground abutting on that highway. The ground had been used
for 90 years and during the last 30 years the ball had been hit in the highway on about
six occasions but no one had been injured. Held that the defendants (committee and
members of cricket club) were not negligent.
(v) When the defendant owed a duty of care to persons rather than the plaintiff,
the plaintiff cannot sue even if he might have been injured by tfie aaeildatiei
act. Thus, the duty must he owed to the plaintiff
In Palsgrcff v Long Island Railroad Co. (1928) 284 N.Y. 339, a passenger carrying
apackage was trying to board a moving train. He seemed to be unsteady as i f about
to fall. A railway guard, with an idea to help him. pushed him from behind. In this act.
the package (of fire works) fell resulting in an explosion; ati`a result of ti.hitit:the
plaintiff was injured. Held that the guard if negligent to the holder of the package was
not negligent in relation to the plaintiff standing far away (about 25 feet).
The proximity in relationship (i.e. parties are so related that it is just and
reasonable that the duty shall exist) is also necessary in an action for negligence. In
Hill v Chief Constable, West Yorkshire (1988) 2 All ER 238, the Constable was held
not liable to the mother who lost her child at the hands of a murderer who couldn't
be detected for his earlier murders on account of errors in investigation.
(vi) Duty in medical protassiim- A surgeon does not undertake that he will perlom
a cure: nor does he undertake to use the highest possible degree of skill; but
lie undertakes to bring a fair. reasonable, and competent degree of skill.
A tiocroi when consulted by a patient owes him certain duties, wiz. a duty of
care in deciding whether to undertake the case, a duty of care in deciding what
treatment to gue and a duty of care in the administration of that treatment. A breach
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Guide for Competitive Examinations
of any of thoseduties gives a right of action for negligence to the patient (phu
India Ltd. v Kunju Punnu AIR 1975 Bom 306). IP1
(2) Breach of Duty
It meansnot taking due care which is required in a particular case. The law requires
taking of two points into consideration to determine the standard of care required:
(i) The importance of the object to be attained- The law permits taking chance
of somemeasure of risk so that in public interest various kinds of activities
shouldgo on.
In Latimer v A.E.C. Ltd. (1953) A.C. 643, due to heavy rain a factory was
flooded with water, which got mixed with some oily substance. The floors in the
factorybecame slippery. The factory owners spread all the available sawdust but
someoily patches still remained there. The plaintiff slipped and was injured. He sued
thedefendantsandcontented that, as a matter of precaution the factory should have
beenclosed down. Held that the risk created was not so great as to justify that
precaution. The defendantshad acted reasonably and, therefore, they were not liable:
(ii) The magnitude of the risk- The degree of care varies according to the
likelihood of harmand seriousness of injury. The driver of a vehicle has to
observegreater care when he is passing through a school zone, or he finds
ablind man, a child or an old man.
In GlasgowCorporation v Taylor (1922) 1 A.C. 44, poisonous berries were group
in a publicgardenunderthecontrol of thedefendant corporation. The berries looked like
cherries. A child, aged 7, ate thoseberries and died. It was found that the shrub bearing
theberries was neither properly fenced nor a notice regarding poisonous benies was
displayed. Held that the defendantshad not taken proper care and so were liable.
(3) Damages
It is also necessary that the defendant's breach of duty must cause damage to the
plaintiff. The plaintiff hasalso to show that the damage thus caused is not too remote
aconsequence of the defendant's negligence.
Res Ipsa Loquitur (Proof of Negligence)
Though,asageneralrule, the plaintiffhasto discharge the burden of proving negligence
onthepart of thedefendant, there are, however, certain cases when the plaintiff need
notprove that and the inference of negligence is drawn from the facts. There is a
presumption of negligenceaccording to the Latin maxim 'res ipsa loquitur' which
meansthe thingspeaks for itself. In such a case, it is sufficient for the plaintiff to
proveaccidentandnothingmore. The defendant can, however, avoid his liability by
disprovingnegligence on his part (rebuttal of the presumption of negligence).
(1) The maxim is nota rule of law. It is a rule of evidence benefiting the plaintiff
bynotrequiring him to prove negligence (because the true cause of accident
may lie solely within the defendant's knowledge). It is a common sense
approach,not limited by technical rules.
(2) The maximapplieswhen- (i) the injurious agency was under the management
23
Law of Torts 1 8 5
or control of the defendant, and (ii) the accident is such as in the ordinary
course of things, does not happen if those who have the management use
proper care.
(3) The rule in Rylands v Fletcher is not an illustration of the mere principle of
res ipso loquitur. The liability arising out of the principle can be repelled by
proof that the defendant was not negligent, whereas under the Rylands rule
it is no defence to say that defendant took every possible precaution to
prevent the escape of the injurious thing.
(4) The principle of res ipsa loquitur has no application where the circumstances
in which the accident has taken place indicate that there must have been
negligence but do not indicate as to who was negligent or when the accident
is capable of two explanations. Also, the maxim does not apply when the
facts are sufficiently known.
In Agya Kaur v Pepsu R.T.C. (AIR 1980 P & H 183), a rickshaw going on the
correct side was hit by a bus coming on the wrong side of the road. The speed of the
bus was so high that it, after hitting the rickshaw, also hit the electric pole on the
wrong side. Held that from these facts the only inference, which could be drawn, was
that the driver of bus was negligent. Where an advertisement banner attached to a
frame overhanging the road fell by a wind velocity of less than 27 miles per hour, the
defendant is clearly negligent and the maxim is applicable to the case (Manindra
Nath Mukherjee v Mathura Das AIR 1946 Cal 175).
If a brick falls from a building and injures a passerby on the highway, or the
goods while in the possession of a bailee are lost, or a stone is found in a bun, or a
busgoing on the road overturns, or death of a person is caused by live broken electric
wire in a street, or portico of a newly constructed hospital building falls down and
results in the death of a person, a presumption of negligence is raised.
In Municipal Corpn., Delhi v Subhagwanti (AIR 1966 SC 1750), due to the
collapse of the Clock Tower situated opposite to Town Hall in the main bazar of
Chandni Chowk, Delhi, a number of persons died. The Clock Tower belonged to the
Municipal Corporation of Delhi and was exclusively under its control. The Supreme
Court explained the legal position as: "There is a special obligation on the owner of
the adjoining premises for the safety of the structures which he keeps beside the
highway. If these structures fall into disrepair so as to be of potential danger to the
passerby or to be a nuisance, the owner is liable to anyone using the highway that is
injured by reason of the disrepair. In such a case it is no defence for the owner to
prove that he neither knew nor ought to have known of the danger. In other words,
the owner is legally responsible irrespective of whether the danger is caused by a
patent or latent (hidden) defect."
In a recent case- Rajkot Municipal Corpn. v Manjulben Jayantilal Nakum
(1997) 9 SCC 552, the deceased while walking on the footpath of a public road was
struck by a roadside tree suddenly felling on him in a still weather condition resulting
in his death. The damages were claimed from the municipal corporation. The Supreme
Court held: "When the defendant was not in know of the discoverable defect or
danger and it caused the damage by accident like sudden fall of tree, it would be
difficult to visualise that the defendant had knowledge of the danger and omitted
to perform the duty of care to prevent its fault. Further, the conditions in India have
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not developed to such an extent that corporation can keep constatvigi
ytesting
the healthy condition of the trees in public places. roadsides, highwaysI frequentedb
by passers-by." Thus, it was held that the corporation is not liable for damages.
Remoteness of Damage (A Limitation to Action for Negligence)
Noperson can be made liable ad it finitunt for all the consequences, which follow his
wrongful act. A person is held responsible in law only for consequences, which are
not remote. The defendant is liable for the wrongful act only if it is the proximate,
direct or immediate cause of injury (causa caimans) and not merely a causa sine qua
non (cause without any other cause).
It is not necessary that the event, which is immediately connected with the
consequences. is proximate and that farther from it is too remote. In Scott v Shepherd
17 W.BI. 892. A threw a lighted squib into a crowd, it fell upon X. X in order to
prevent injury to himself threw it further, it fell upon Y and Y in his turn did the same
thing and it then fell on 13,as result of which B lost one of his eyes. A was held liable
to B. His act was proximate cause of damage even though his act was farthest front
the damage in so far as the acts of X and Y had intervened in between.
Tests of Remoteness of Damage
There are two tests to determine whether the damage is remote or not. It is the test
of reasonable foresight that now holds the field.
(1) Test ofreasonable foresight- According to this test if a reasonable man could
have foreseen the consequences of a wrongful act they are not too remote.
The test of reasonable foresight is also called as the rest of probabila) (a
man is responsible for the probable consequences of his act).
(2) Test of directness- According to this test a person is liable for all the direct
consequences of his wrongful act, whether he could have foreseen them or',
not, because consequences which directly follow a wrongful act are not tool
remote.
In Smith v London & South Western Railway Co. (1870) L.R. 6, C.P. 14. the )
railway company was negligent in allowing a heap of trimmings of hedges and grass
near a railway line. Spark from the railway engine set fire to the material. Due to high
wind the fire was carried to the plaintiff's cottage, which was burnt., The defendants
were held liable even though they could not have foreseen the loss of the cottage.
In Re Polemis and Furness, Withy & Co. (1921) 3 K.B. 560, the defendants
chartered a ship. The cargo to be carried by them included a quantitynf Benzene and
Petrol in tins. Due to leakage in those tins some of their contents collected in the hold
of the ship. Owning to the negligence of the defendant's servants a plank fell into the
hold, a spark was caused and consequently the ship was totally destroyed by fire. It
was held that defendants were liable for all the direct consequences of their servant's
negligent act including destruction of the ship even though consequences could not
have been reasonably anticipated.
In Liesbosch Dredger v Edison (1933) A.C. 448, the 'direct cause' was
interpreted which had the effect of limiting the scope of Re Polemis. In this case.
owing to the negligence of Edison, the dredger Liesbosch was sunk. On account of
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Law of Torts 1 8 7
financial difficulties, the plaintiffs (owners of Liesbosch) could not replace the dredger
and they had to hire another one at a very high rent for the performance of a contract
with a third party.. The plaintiffs therefore suffered a very heavy loss. They sued the
owners of Edison for negligence and their claim for compensation included (i) the
price of the dredger, and (ii) the hire charges which they had to pay from the date of
the sinking to the date they could actually purchase a new dredger. The court accepted
their claim under the first head, but not the second. The reason why the plaintiffs
couldn't purchase a new dredger was their poverty and thus additional less suffered
by them was too remote a consequence of the defendant's act.
The test of directness was rejected in the famous 'Wagon Mound' case, wherein
held that the test o f reasonable foresight is the better test. In Overseas Tankship
(UK.) Ltd v Morns Dock & Engg. Co. Ltd (1961) A.C. 388.. during bunkering
operations in Sydney harbour, a lager quantity of oil was negligently allowed to spill
on the water from the Wagon Mound, a ship under the defendant's control as charterers.
The oil spread to nearby plaintiff's wharf where another ship was being -repaired.
About 60 hours thereafter molten metal from the plaintitrs wharf felt on the floating
cotton waste, which ignited the fuel oil on the water and the tire caused great damage
to the wharf and the equipment.
Held that since a reasonable man could not foresee such injury the appellants
(defendants) were not liable in negligence even though their servant's negligence was
the direct cause of the damage. Referring to the Polemis case, their Lordships said:
-Polemis rule does not seem consonant with current ideas of justice or morality. I f
some limitation must be imposed upon the consequences for which the negligent actor
is to be held responsible, why should that test (reasonable foresceability) he rejected
which corresponds with the common conscience of mankind. and a test (the 'direct'
consequences) be substituted which creates insoluble problems of causation."
The decision in this case has been considered good law in subsequent cases. In
Hughes v Lord Advocate (1963) I All ER 705, the post office employees opened a
manhole for the purpose of maintaining underground telephone equipments. In the
evening they left it under the cover of a tent but unattended, though surrounded by
paraffin lamps to warn the public. An eight year old child entered the tent and started
playing with one of the lamps, which fell into the manhole when the boy stumbled
over it. A violent explosion followed and the boy himself fell into the hole and
sustained serious injuries. It was foreseeable that tampering with the lamp could bum
a child, but the explosion could not be foreseen.
Held that since the kind of damage was foreseeable although the extent was not,
the defendants were liable, i.e. the boy was entitled to recover damages. this case
illustrated that the test of foresetability is satisfied if the damage suffered is similar
in kind (foreseeable and actual injuries were of the same kind) though different in
degree and that the precise sequence of events or the extent of the damage need not
have been foreseeable: but if the damage suffered is altogether different in kind, the
test of furesecahility is not satisfied, and the plaintiff cannot recover.
In S.('..11 ( K . ) Ltd. c IF S a i l . ‘ (1971) I Q13 337. where due to
the defendant's negligence. an electric cable supplying power to the plaintiff's factory
was damaged resulting in loss of production to the factory, held that the defendants
could tOresee the consequences of their act and thus liable. In Mrs Limper, v Eastern
National Omnibus Co. (1954) 1 WI.R 1047, Mrs. Lampert had strained relations with
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Guide for Competitive Examinations
her husband. One day in an accident due to the negligence of the defendants ,
suffered severe disfigurement. Sometime afterwards her husband deserted bee. SheS"
wanted to claim damages for the loss of company of her husband. It was found. "
the real cause of the desertion was not her disfigurement but the estranged relatir,„
i (iv) Judicial acts, executive acts and statutory authority- in very exceptional
between her and her husband, which existed even before the accident. Held that "
the
defendant's act was not the proximate cause of 'loss of company' and damages with
regard to the same were not true. But she can recover damages for her disfiguretnesT
Intended Consequences
Intendedconsequencesare not subject to the doctrine of remoteness. Such consequences
are never too remote. An intentional wrongdoer's liability will cover all consequences
whether foreseeable or not, which result from his wrongful act. This is not affected
by theWagon Mound case. Scott v Shepherd (above) illustrates the extent of intentional
tort, the tort-feasor is liable for all actual damage, whether foreseeable or not, which
directly flows from the fraudulent act.
When the Damages Excluded as Too Remote
Two such situations are: contributory negligence; and, the wrongful act o f en
independent third party.
The principle underlying the maxim novus actus interveniens (new acts
intervening) is that there are circumstances when an intervening act of third party
breaks the chain of causation between the wrongful act and the damage sustained by
the plaintiff. However, damage is recoverable if, despite intervening independent
causes, the defendant ought reasonably to have anticipated such interventions and to
haveforeseen that, it they occurred, the result would be that his wrongful act would
lead to mischief.
In Haynes v Harwood (1935) 1 K. B. 146, the defendant's servants negligently
left a horse van unattended in crowded street. By the throwing of stones at the horses
by a child, they ran away and injured a person. The defendant pleaded the defence
of novus acres interveniens. Held that the defendant was liable. Because such a
mischief on the part of the children was anticipated. The case also illustrates that
children generally do not constitute novus actus when their action is the result of their
mischievous tendencies.
Rescuecases illustrate that a reasonable act done by a person, in consequence
of thewrongful act of the defendant, which results in further damage does not constitute
novus emu breaking the chain of causation.
Where A left a loaded gun negligently and his son found it and pointed it in
play at P who was injured by the going off, held that A is liable to P [Sullivan v Creed
(1904) 2 IR 317]. However, where A sustained serious injuries in a train accident and
also lost the money, which he was carrying, it was held that the loss of currency notes
couldn't be directly connected to the accident. The railway company wouldn't be
liable for loss resulting from the wrongful act (e.g. theft) of a third party. The maxim
novus actus interveniens applies (Secy. of Stale v Gokal Chand AIR 1925 lah 636).
Defences to Negligence
(i) Contributory negligence.
(ii) Valenti non fit injuria.
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(ill) Express contract (clause for contracting out of negligence; the courts,
however, construe such exemption clauses very strictly).
and appropriate cases.
(v) A c t of God.
( vi) Inevitable accident.
Contributory Negligence
in certain circumstances a person who has suffered an injury will not be able to get
damages from another for the reason that his own negligence has contributed to his
injury; every person is expected to take reasonable care of himself. According to John
G. Fleming, "Negligence is conduct that fails to conform to the standards required by
law for safeguarding others (actionable negligence) or oneself (contributory negligence)
against unreasonable risk of injury." Thus, when the plaintiff by his own want of care
contributes to the damage caused by the negligence or wrongful conduct o f the
defendant, he is considered to be guilty of contributory negligence.
For example, a pedestrian tries to cross the road all of a sudden and is hit by
a moving vehicle, he is guilty of contributory negligence. In this case, the defendant
could completely escape his liability for the accident. Take another case, if the conductor
of a bus invites passengers to travel on the roof of the bus, and one of the passengers
travelling on the roof is hit by the branch of a tree and falls down and gets killed after
the driver swerves the bus to the right to overtake a cart, there is not only negligence
on the part of the conductor and driver but also contributory negligence on the part
of the passengers (Rural Transport Service v Bezium Bibi AIR 1980 Cal 165).
Thus, we could visualise three situations regarding the liability for negligence.
The ultimate question is : "who caused the accident?" In other words, -whose act was
decisive cause of the accident"? The three situations are as follows :
(i) If it were the defendant, the plaintiff can recover in spite of his own
negligence (Davies v Mann).
(ii) I f it were the plaintiff, he cannot recover in spite of the defendant's
negligence [Butterfield v Forrester (1809)11 East 60]. In that case, the
defendant wrongfully obstructed a highway by putting a pole across it.
The plaintiff, who was riding violently in the twilight on the road collided
against the pole and was thrown from his horse and injured. I f the
plaintiff had been reasonably careful he could have observed the
obstruction from a distance of 100 yards and thus avoided that accident.
(iii) I f it were both plaintiff and defendant, the plaintiff can recover but there
will be apportionment of liability i.e. the damages will be apportioned
as between them according to the degree of their fault. According to
Winfield, where the plaintiff's negligence was so closely implicated
with the defendant's negligence so as to make it impossible to clPtennine
whose negligence was the decisive cause, the plaintiff cannot recover.
Rules to Determine Contributory Negligence
(1) What the plaintiff negligence means - Negligence of the plaintiff in
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relation to the defence of contributory negligence does nor ha,
samemeaning as is assigned to it as a tort of negligence. Here ttei e the
negligence does not mean breach of duty towards the other re
meansabsence of due care on his part about his own safety b u t it
(2) Plaintiff's negligence must be the operative cause of accident - it 1‘..
also to be proved that it is plaintiff's lack of care which contributed to
the resulting damage. If the defendant's negligence would have ea'
the samedamage even if the plaintiff had been careful and the piajarrti
negligence is not the operative cause o f accident the defence of
contributory negligence cannot be pleaded.
Thus, if the driver of an 'overloaded' rickshaw going on the correct side is hi
by a bus coming at a high speed on the wrong side of the road, there is no contribute;
negligence of rickshaw driver even though the rickshaw is overloaded (Agya Knuru
PR.T.Corpn. AIR 1980 P&H 183). Likewise, the mere fact that the motor cyclist was
carrying three persons on the pillion seat did not lead to the inference of contributor
negligence on his part. The mere refusal of an injured person to undergo surgery eve
when advised by medical expert may not amount to contributory negligence, especial
when he was a diabetic patient.
(3) Test of prudent man - If the plaintiff has taken as much care as
prudent man have taken in a similar situation, there is no contributor
negligence. Thus, merely resting one's elbow on a window sill of It,
bus going on a highway does not amount to contributory negligent,
(Sushma Mara v MP.S.R.T.Corpn. AIR 1974 M.P.68).
(4) Doctrine of alternative danger - Sometimes the plaintiff is permittede
take risk where some dangerous situation has been created by ok
defendant and in such a case he will not be considered to be guilty at
contributory negligence. The judgement of the plaintiff should-AA
however, be rash.
Thus, when a train overshoots a platform a passenger is justified in takinglk
risk of getting down without platform rather than being carried further. Likewise,
when a lady got locked in a public lavatory because of the defective lock and no
attendant outside, and she injured herself while trying to find a way to climb out. she
was entitled to recover.
(5) Presumption that others are corefid/Slatutory negligence- There are
many circumstances when the plaintiff can take for granted that the
defendant will be careful. The plaintiff is not liable o f contributor)
negligence in such a case.
In Gee v Metropolitan Rly. Co. (1873) 8 QB 161, the plaintiff (a passenger!
lightly leaned against the door of acarriage not long after the train had left the station
The door was negligently fastened and the same fell open with the result the passenger
fell off the train. The plaintiff was entitled to recover. In the case o f •statuton
negligence', the same having been arisen out of breach of a statutory obligation. the
defence of contributory negligence cannot be availed of by the wrongdoer (defendant'
(6) Contributory negligence of children - What amounts to contributor)
negligence in the case of an adult may not be so in the case of a child
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If, however, a child is capable of appreciating the danger he may be held
guilty of contributory negligence.
In Yachuk v Oliver Blias Co. Ltd. (1949) A.C.386, the defendant's servants
sold some gasoline to two boys aged .7 and 9 years. The boys falsely stated that they
needed the same for their mother's car. They actually used it for their play and one
of them got injured. The Privy Council found that there was no evidence to show that
the infant plaintiff appreciated the dangerous nature of gasoline and the defendant was
held liable in full for the loss.
(7) Doctrine of identification (Imputed contributory negligence) - It implies
that i f the independent contractor employed by the plaintiff has been
negligent, the plaintiff would be identified with him and met with the
defence of contributory negligence. The doctrine, however, has been
overruled since an employer does not have control over the independent
contractor. It has been held that in Indian conditions no passenger can
be held liable for contributory negligence for the omission of the car
driver or the truck driver/bus driver or train driver or a pilot.
In Oliver v Birmingham & Midland Omnibus Co. (1933) 1 KB 35. a four year
old child was crossing the road along with his grandfather. Suddenly the defendant's
omnibus came there and in panic the grandfather left the child in the middle of the
road and himself jumped off the road. The child got injured; but he was not identified
with his grandfather and inspite of the contributory negligence on the latter's part the
child was entitled to recover compensation from the defendant.
The Last Opportunity Rule (How for Contributory Negligence is a Defence?)
At common law, contributory negligence was a complete defence, and the negligent
plaintiff could not claim any compensation from the defendant (See Butterfield v
Forrester). The courts modified the rule and introduced the so-called rule or 'last
opportunity' or 'last chance.'
The last opportunity rule may be stated as : "When an accident happens through
the combined negligence of two persons, he alone is liable to the other who had the
last opportunity of avoiding the accident by reasonable care". The rule was applied
in Davies v Mann (1882) 10 M&W 546; in that case, the plaintiff fettered the forefeet
of his donkey and left it in a narrow highway. The defendant was driving his wagon
too fast and the donkey was run over and killed. Inspite of his own negligence the
plaintiff was entitled to claim compensation because the defendant had the last
opportunity to avoid the accident.
In Rainey v L.& N 117Rtt; (1876) AC 759, the plaintiffs loaded a truck so high
that it was obstructed by a bridge owned by them, but the defendents' servant (an
engine driver) gave momenttun to the engine and tried to make it pass through the
bridge without ascertaining the nature of the obstruction. The bridge was knocked
down. Inspite of negligence on the plaintiffs' part in overloading the truck they were
entitled to recover from the defendants because by an ordinary care the defendants
could have averted the mischief.
The rule was thrther defined in the case of British Columbia Electric Co. v
Loach (1916)1 AC 719, "a defendant. who had not in fact the last opportunity to
avoid the accident, will nevertheless be liable if he would have that opportunity but
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for his negligence" ('Constructive Last Opportunity'). The rule of last oppuctty
uni
alsowas very unsatisfactory because the party whose act of negligence was earlier
altogether escaped the responsibility. The law was changed in England. The Law
Reform (Contributory Negligence) Act, 1945 provides that when both parties are
negligent and they have contributed to some damage the damage will be apportioned
asbetween them according to the degree of their fault.
Thesame is considered to be the position in India as well. The Kerala Tons
(Miscellaneous Provisions) Act, 1976 contains provisions for apportionment of liability
in case of contributory negligence (Sec. 8). In India, contributory negligence has been
considered as a defence to the extent the plaintiff is at fault. Thus, if in an accident
the plaintiff is as much at fault as the defendant the compensation to which he would
otherwise be entitled will be reduced by 50%. In a recent Australian case, March VE
& MIL Stramare Pty. Ltd. (1991) 65 ALJ 334, it was held that "the end result of
apportionment legislation is to abolish not only the defence of contributory negligence
but also the last opportunity rule."
Theories of Contributory Negligence
Various theories havebeen advanced by jurists as to the 'basic principle' of contributory
negligence: Penal theory (a negligent person should be punished severely and not to
be permitted to recover damages); Public policy; Joint tortfeasor's principle; Voenti
non fit injuria; and, Causation. The causation theory seems to be the best one to
explain the basic principle of contributory negligence. It is negligence which 'contributes
to cause' the injury. The question, as in all questions of liability for a tortious act, is
not, who had the last opportunity of avoiding the mischief, but whose act caused the
wrong (Boy Andrews v St. Roguvald (1947) 2 All ER 350).
Composite Negligence
When the negligence of two or more persons result in the same damage to a third
person there is said to be 'composite negligence', and the persons responsible are
known as 'composite tort-feasors'. In England there are two types of' composite tort-
feasors, i.e. joint tort-feasors and independent tort-feasors, the liability of them being
different. In India, such distinction is not very much relevant and so far as their
liability is concerned, the term "composite negligence" is used to cover the negligence
of tort-feasors, whether they are joint or independent.
In case of 'contributory negligence', there is negligence on the part o f the
defendant as well as the plaintiff Plaintiff's own negligence contributes to the harm
which he has suffered. In the case of 'composite negligence', there is negligence of
two or more persons towards the plaintiff, and the plaintiff himself is not to be
blamed. While contributory negligence is a defence available to the defendant to
overcome or reduce his liability in relation to the plaintiff, the composite negligence
is not a defence.
In case of 'contributory negligence', there is apportionment of damages according
to the fault of the plaintiff and the defendant. Plaintiff's claim is reduced to the extent
he himself is at fault. In case of 'composite negligence', there is no apportionment of
damagesbetween various tortfeasors according to their fault. There is a decree for the
whole amount creating joint and several liability of all the defendants. If, however,
one tortfeasor is made to pay more than his share of the damages, he can claim
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compensation from the other tortfeasors. In a case of composite negligence, the court
may reduce the damages payable on account of contributory negligence.
Nervous Shock (Reasonably Foreseeable Consequence of Negligence)
The common law gives no damages for grief, emotional distress, anxiety etc. Under
'nervous shock', a claim for damages can be made without showing direct impact or
fear of immediate personal (bodily) injuries. But it is only the shock, which can be
measured by direct consequences on bodily activity, which can form the basis for an
action. The rationale behind is that the body is controlled by its nervous system.
Causing of nervous shock itself is not enough to make it an actionable tort, some
injury or illness must take place as a result of emotional disturbance, fear or sorrow.
It may be noted that this branch of law is comparatively of recent origin. The
courts have been quite reluctant to award damages for emotional disturbances, such
as the difficulty of proving the link between the defendant's conduct and the shock
to the plaintiff, the risk of fictitious claim and excessive litigation. The nervous shock
may arise due to negligence or intentional wrongdoing.
The plaintiff could suffer nervous shock by witnessing (seeing or hearing)
personal injury (or an accident) or destruction of his property caused by the defendant's
wrongful act. The plaintiff must be so placed where injury through nervous shock can
be foreseen by a reasonable man. [Bourhill (or Hay) v Young (1943) A.C. 92]. The
plaintiff need not be in the area of physical injury to himself but his proximity to the
accident should be sufficiently close in time and space.
The primary victim need not be a near relative of the plaintiff. Thus, where a
crane driver (plaintiff) suffered a nervous shock when he saw that by the breaking of
arope of crane its load fell into a ship where some men were at work was allowed
damages. However, where plaintiffs suffered nervous shock when disaster at a football
match was televised live and in news bulletins, they were not allowed damages.
In Dulieu v White (1901) 2 K.B.669, a pregnant woman who was standing
behind the bar o f a public house, suffered shock when the defendant's servants
negligently drove a horse van into that house. The defendant was held liable. In
Hambrook v Stokes Bros. (1925) 1 K.B. 141, held that it is not necessary that shock
must be such as arises from reasonable fear of immediate personal injury to oneself.
In this case, a motor lorry, left unattended with the engine running, started off by itself
and ran violently down the incline. A lady, who had been walking up the street with
her children, had just parted with them at the point where the lorry was heading. A
bystander told her that a child answering the description of one of her children had
been injured. She suffered shock and died. The defendant was held liable.
However, in King v Phillips (1953) 1 Q.B. 429, the defendant was held not
liable on the ground that the mother was wholly outside the area o f reasonable
apprehension. In this case, a taxi driver backed his taxicab negligently and ran into
a child on a tricycle immediately behind him. The child's mother, who was in her
house, 70 or 80 yards away, heard him scream and looking out of a window saw the
cab back into a tricycle, but she could not see the child. She suffered nervous shock.
This case requires consideration (Winfield).
In Bourhill v Young. a motorcyclist collided with a motorcar and was killed.
The plaintiff, a fishwife, standing about 45 feet from the point of impact heard the
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noise. After the body of the motorcyclist had been removed she happened to go ,
thescene of the accident and saw the blood on the road. She suffered nervous shoe'.
It was held that the deceased could not be expected to foresee any injury to the.
plaintiff. And, thus, he did not owe any duty of care to her.
In McLoughlin v 0, Brian (1982) 2 All ER 298, the plaintiff's husband and
three children were involved in an accident caused by the defendant's negligence, in
which one child was killed and others were seriously injured. After being told or the
accident, the plaintiff was taken to the hospital where she saw the injured husband and
children and heard about the death of her daughter. She suffered nervous shock. She
was allowed damages even though she was not at or near the scene of the accident
at that time or shortly afterwards.
In Ownes v Liverpool Corpn. (1939) 1 K.B. 394, a funeral procession was
going along a road, a tram-car violently collided with a hearse and caused the coffin
to be overturned as a result of which the mourners at the funeral suffered shock. The
mournerswere allowed damages for mental shock, although there was no apprehension,
or actual sight, of injury to a human being.
Negligence and Occupier's Liability for Dangerous Premises
An occupier of premises or of other structures like cars, ships, aeroplanes or lifts
owesan obligation to the persons who enter those premises, or structures, in respect
of their personal safety and the safety of their property there. The obligation of the
occupier of certain premises vary according to the type of visitor on the land. The
visitor may be (i) a lawful visitor, (ii) a trespasser, or (iii) a child.
In order to be an 'occupier' it is not necessary for a person to have entire
control over the premises. Suffice it that he has some degree of control. The expression
'premises' includes not only land and buildings but also vehicles, railway carriages,
lifts, etc. The liability of occupiers of premises is now governed under the English law
by the Occupiers Liability Act, 1957 amended by the Occupiers Liability Act, 1984.
The principles of the English Act are followed by the courts in India.
(I) Obligation Towards Lawful Visitors
Prior to the passing of the Occupiers Liability Act, the common law classified the
lawful visitors into two categories - invitees ( when the occupier and the visitors had
acommon interest) and licensees ( the visitors alone had an interest, viz. a customer
at a shop, a sales-man, a guest invited for a dinner). The common law laid down
separate rules for obligations towards each one of them.
In the case of an 'invitee', the occupier's duty was "to use reasonable care to
preventdamage from unusual danger, which he knows or ought to know" In contrast
asagainst a 'licensee', the occupier's duty was to warn him of any latent defect or
concealed danger which he actually knew. He was also not liable f o r any danger
which was obvious and the licensee must've appreciated the same.
In Cates v Mongini Bros. (1971)19 Born LR 778, the plaintiff went to the
defendant's restaurant to take lunch and took a seat under a ceiling fan. The fan fell
on her whereby she was injured. It was found that the fan had felled due to a latent
defect in the suspension rod which could not have been discovered by reasonable
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care. The defendants were held not liable. In Fairman v Perpetual Investment Building
Society (1923) AC 74, the defendant were in possession of the common staircase.
O n g to wearing away of cement, there was a depression in one of the stairs, the
plaintiff's heel was caught in it, she fell down and got injured. It was held that the
plaintiff being a licencee the defendant could be made liable towards her only for a
concealed danger, while in this case the injury to the plaintiff was due to danger
which was obvious and could have been observed by the plaintiff.
A 'licensee' is a person who enters on premises under a licence from the
occupier, either express or implied. A bare licensee is only entitled to use the place
as he finds it. The licensee or guest must take care of himself and no action will lie
unless the accident by which he sustained the injury has been caused by the owner's
negligence. The duty of the occupier is: (i) to caution him against any known insecurity
or hidden danger which the occupier was aware but the party was ignorant; (ii) not
to alter the character of the place by placing on it dangerous obstructions. The position
of a licensee is better than that of a trespasser in that he is entitled not to have the
condition of the premises so altered as to set up a trap for him.
The classification of lawful visitors into invitees and licensees has now been
done away with by the Occupiers Liability Act, 1957, under which an occupier is
expected to observe towards the lawful visitors a "common duty of care": "a duty to
take such care as in all the circumstances of the case is reasonable to see that the
visitor will be reasonably safe in using the premisesfor the purpose for which he is
invited or permitted to t h e r e . " The duty is not to ensure the visitor's safety, but
only to take reasonable care.
The common duty of care, however, may be extended, restricted, modified or
excluded by an agreement between the parties. An occupier is supposed to take
special care for the safety of the children. When a householder calls in a specialist
to deal with a defective installation on his premises, he can reasonably expect the
specialist to appreciate and guard against the dangers arising from the defect. In Roles
v Nathan (1963) 2 All ER 908, two chimney sweepers were killed by CO gas while
trying to seal a sweep hole in the chimney of a cokefired boiler while the fire was
still alight and the occupier was held not liable.
The occupier cannot exempt himself by giving a `warning of the danger' to the
visitor. The presence of warning will be only one fact to be considered in the text of
reasonableness. Knowledge or notice of the danger is only a defence when the plaintiff
is free to act upon that knowledge or notice so as to avoid the danger. So if there is
only one way of getting in or out of premises and it was by a foot-bridge over a rotten
/ dangerous stream, the visitor if injured can make the occupier liable even though he
is warned of the danger or has otherwise knowledge of it.
Structures Adjoining Highways
The owners of structures adjoining highways have a duty to maintain them properly
so that there is no damage to the users of highways. Thus, if a person is not maintaining
his building properly he would be liable by the fall of the wall adjoining highway [
Kallulal v Hemchand AIR 1958 M.P.48]. In Municipal Corpn., Delhi v Subhagwanti
(AIR 1966 SC 1750), the defendants were held liable for the death of a number of
persons by the fall of the Clock Tower which was situated in the heart of the city.
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If the owner has maintained the structure with a due care and he does not int
ow
about the dangerous condition of the structure and the same cannot be discovered
inspite of reasonable inspection on his part he will not be liable if the structure raps
without any fault on his part. In Noble v Harrison (1926)2 KB 332, the branch of :
hugetree, which was growing on the defendant's land and overhanging on the highway
suddenly broke off due to some latent defect, and fell on the plaintiff's vehicle'
passing along the highway, it was held that the defendant was not liable.
In Milder v Associated Portland Cement Mfrs. Ltd. (1961) 3 All ER 709, the
defendants were owners and occupiers of premises including a grassland called Green,
oneside of which adjoin a busy highway. Children up to 10 or 11 years were permitted
to play on the Green and the defendants knew that they regularly played there with
afootball which often went over the wall which separated the Green from the highway
andhad to be retrieved from the highway. Once the foot-ball went over the wall on
the highway and injured a motor-cyclist. Held that defendants were liable as they
ought to have realised that children playing in this manner constituted a risk to the
persons using the highway.
Liability of Landlord
When a tenant is in charge of a building and its dangerous condition causes the
damage to a visitor the tenant is liable for the same. In certain cases the liability may
also be cast upon the landlord even though it is the tenant and not the landlord who
is the occupier of the building. The landlord is liable when he has undertaken a duty
to repair the same whenever necessary, and has expressly or impliedly reserved the
right to enter the premises.
(2) Obligation Towards Trespassers
A trespasser has been defined as "one who goes upon land without invitation of any
son and whosepresence is either unknown to the proprietor, or, if known, is particularly
objected to." Thus, a trespasser is a person who enters into another's property without
any right or permission.
The general rule is that there is no duty of care towards a trespasser. He who
enters wrongfully does so at his own risk in all respects. There must be some act done
with the deliberate intention of doing harm to the trespasser, or at least some act done
with reckless disregard of the presence of the trespasser [Robert Addie & Sons v
Dumbreck (1929) AC 358]. Thus, he must avoid endangering the safety of trespassers
by concealed dangers in the nature of a trap, or such as would be likely to punish
intruders in a cruel manner, viz. naked live electric wire (Cherubin v State of Bihar
AIR 1964 SC 205), or setting up spring guns [Bird v Holbrook; Illot v Wilkes]. Only
reasonable force can be used to expel the trespasser from the premises, viz. use of
/spikes or broken pieces of glass on the top of the wall.
In British Railway Board v Herrington (1972) 1 All ER 749 (HL), holding the
Railway Board at fault and liable in allowing the fence in a broken down condition
having regard to the dangerous nature of the live rail and its perils for a small child,
the court ruled that if the presence of the trespasser was known to or reasonably to
be anticipated by the occupier, then the occupier did owe to the trespasser a duty TO
treat him with ordinary humanity which was a lower and less onerous duty than a
general duty of care or the common duty of care owed to lawful visitors.
29
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Herrington s care influenced the enactment of the Occupiers Liability Act, 1984
which imposes duty towards trespassers if the following conditions are satisfied : (a)
the occupier should have knowledge of the existence of the danger on his land, (b)
that the entrant is in the vicinity of danger, and (c) the risk is such that it can be
reasonably expected that the occupier should provide him some help. The Errington.s
case was considered in Kumari Alka v Union of India (AIR 1993 Del 267).
(3) Obligation Towards Children
If the children are trespassers the only duty of the landowner is not to injure them
intentionally, or to put dangerous traps for them intending to injure them. He is under
no liability i f in trespassing, they injure themselves on objects legitimately on his
land, viz a heap of stones. To make a landowner liable for injury to children on his
land, it must be proved that he expressly or impliedly invited them on to his land, and
either did an act which caused damage with knowledge that it might injure them, or
knowingly permitted the existence on his land of a hidden danger or trap.
In Phipps v Rochester Corpn. (1955) 1 QB 450, the plaintiff, a child aged five,
went with his sister aged seven, to an open space on a building site of the defendants
and there the plaintiff fell down in an open trench and broke the leg. The defendants
were held not liable for there was no reason to suppose that children of tender age
will be allowed to wander over the site unaccompanied by a proper guardian. But this
rule will not apply to a case where, to the knowledge of the occupier, little children
are permitted by their parents to go unaccompanied in the reasonable belief that they
would be safe, e.g. a recognised playground.
6. D E FA M AT I O N
Every man has a 'right to reputation'. Defamation is a tort which injures reputation
and is therefore actionable. As stated in Dixon v Holden (1869) 7 Eq. 488, "A man's
reputation is his property, and if, possible, more valuable, than other property".
Winfield has defined defamation as "publication of statement which tends to
lower a person in the estimation of tight thinking members of society generally or
which makes them shun or avoid that person". It is not only the injury which a man
may himself suffer, it includes any injury to the reputation of his wife, his children
or dependants if the injury suffered by them has a direct bearing on the reputation of
the man who alleges to have suffered an injury.
It is important to note that defamation is both a civil and a criminal wrong. A
person can institute criminal proceedings against the writer or the publisher or he can
sue him in a civil action for damages in tort for the injury he has suffered. The law
of defamation like many other branches of the law of torts provides for balancing of
interests (i.e. reputation v freedom of speech). Defamation is a reasonable restriction,
on the fundamental right of freedom of speech and expression [Art. 19(1)(a) o f
Constitution] and is saved by Article 19(2).
198 L a w Guide for Competitive Examinations https://t.me/RajasthanJudiciaryMaterials
If the owner has maintained the structure with a due care and he does not int
ow
about the dangerous condition of the structure and the same cannot be discovered
inspite of reasonable inspection on his part he will not be liable if the structure raps
without any fault on his part. In Noble v Harrison (1926)2 KB 332, the branch of :
hugetree, which was growing on the defendant's land and overhanging on the highway
suddenly broke off due to some latent defect, and fell on the plaintiff's vehicle'
passing along the highway, it was held that the defendant was not liable.
In Milder v Associated Portland Cement Mfrs. Ltd. (1961) 3 All ER 709, the
defendants were owners and occupiers of premises including a grassland called Green,
oneside of which adjoin a busy highway. Children up to 10 or 11 years were permitted
to play on the Green and the defendants knew that they regularly played there with
afootball which often went over the wall which separated the Green from the highway
andhad to be retrieved from the highway. Once the foot-ball went over the wall on
the highway and injured a motor-cyclist. Held that defendants were liable as they
ought to have realised that children playing in this manner constituted a risk to the
persons using the highway.
Liability of Landlord
When a tenant is in charge of a building and its dangerous condition causes the
damage to a visitor the tenant is liable for the same. In certain cases the liability may
also be cast upon the landlord even though it is the tenant and not the landlord who
is the occupier of the building. The landlord is liable when he has undertaken a duty
to repair the same whenever necessary, and has expressly or impliedly reserved the
right to enter the premises.
(2) Obligation Towards Trespassers
A trespasser has been defined as "one who goes upon land without invitation of any
son and whosepresence is either unknown to the proprietor, or, if known, is particularly
objected to." Thus, a trespasser is a person who enters into another's property without
any right or permission.
The general rule is that there is no duty of care towards a trespasser. He who
enters wrongfully does so at his own risk in all respects. There must be some act done
with the deliberate intention of doing harm to the trespasser, or at least some act done
with reckless disregard of the presence of the trespasser [Robert Addie & Sons v
Dumbreck (1929) AC 358]. Thus, he must avoid endangering the safety of trespassers
by concealed dangers in the nature of a trap, or such as would be likely to punish
intruders in a cruel manner, viz. naked live electric wire (Cherubin v State of Bihar
AIR 1964 SC 205), or setting up spring guns [Bird v Holbrook; Illot v Wilkes]. Only
reasonable force can be used to expel the trespasser from the premises, viz. use of
/spikes or broken pieces of glass on the top of the wall.
In British Railway Board v Herrington (1972) 1 All ER 749 (HL), holding the
Railway Board at fault and liable in allowing the fence in a broken down condition
having regard to the dangerous nature of the live rail and its perils for a small child,
the court ruled that if the presence of the trespasser was known to or reasonably to
be anticipated by the occupier, then the occupier did owe to the trespasser a duty TO
treat him with ordinary humanity which was a lower and less onerous duty than a
general duty of care or the common duty of care owed to lawful visitors.
30
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Herrington s care influenced the enactment of the Occupiers Liability Act, 1984
which imposes duty towards trespassers if the following conditions are satisfied : (a)
the occupier should have knowledge of the existence of the danger on his land, (b)
that the entrant is in the vicinity of danger, and (c) the risk is such that it can be
reasonably expected that the occupier should provide him some help. The Errington.s
case was considered in Kumari Alka v Union of India (AIR 1993 Del 267).
(3) Obligation Towards Children
If the children are trespassers the only duty of the landowner is not to injure them
intentionally, or to put dangerous traps for them intending to injure them. He is under
no liability i f in trespassing, they injure themselves on objects legitimately on his
land, viz a heap of stones. To make a landowner liable for injury to children on his
land, it must be proved that he expressly or impliedly invited them on to his land, and
either did an act which caused damage with knowledge that it might injure them, or
knowingly permitted the existence on his land of a hidden danger or trap.
In Phipps v Rochester Corpn. (1955) 1 QB 450, the plaintiff, a child aged five,
went with his sister aged seven, to an open space on a building site of the defendants
and there the plaintiff fell down in an open trench and broke the leg. The defendants
were held not liable for there was no reason to suppose that children of tender age
will be allowed to wander over the site unaccompanied by a proper guardian. But this
rule will not apply to a case where, to the knowledge of the occupier, little children
are permitted by their parents to go unaccompanied in the reasonable belief that they
would be safe, e.g. a recognised playground.
6. D E FA M AT I O N
Every man has a 'right to reputation'. Defamation is a tort which injures reputation
and is therefore actionable. As stated in Dixon v Holden (1869) 7 Eq. 488, "A man's
reputation is his property, and if, possible, more valuable, than other property".
Winfield has defined defamation as "publication of statement which tends to
lower a person in the estimation of tight thinking members of society generally or
which makes them shun or avoid that person". It is not only the injury which a man
may himself suffer, it includes any injury to the reputation of his wife, his children
or dependants if the injury suffered by them has a direct bearing on the reputation of
the man who alleges to have suffered an injury.
It is important to note that defamation is both a civil and a criminal wrong. A
person can institute criminal proceedings against the writer or the publisher or he can
sue him in a civil action for damages in tort for the injury he has suffered. The law
of defamation like many other branches of the law of torts provides for balancing of
interests (i.e. reputation v freedom of speech). Defamation is a reasonable restriction,
on the fundamental right of freedom of speech and expression [Art. 19(1)(a) o f
Constitution] and is saved by Article 19(2).
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Guide for Competitive Examinations
Libel and Slander
English law divides actions for defamation into libel and slander. Libel
representation made in some permanent form e.g. writing, printing, picture. oil Is
statue. Slander is the publication of defamatory statement in a transient form o r
spoken words or gestures. Slander is like rumours and gossips addressed to the ears
of the listeners (libel is addressed to the eye).
While libel is both a civil and criminal wrong and offence, slander is merely
a civil wrong, except in certain cases where the spoken words are blasphernous,
seditious, and obscene and such as may amount to contempt of the court.
The above stated distinctions do not find any place in India. Under Indiat
criminal law, libel and slander are treated alike, both of them are considered to be a4
offence. Moreover, weight of various decisions in India is to make slander like libel
actionable per se. The limitation period for filing an action for libel as well as slander
is one year.
Essentials of Defamation
(1) The words must be false and defamatory;
(2) The said words must refer to the plaintiff; and
(3) The words must be published.
(I) The Words Must be Defamatory
Defamatory statement is one, which tends to injure the reputation or character of die
plaintiff. Whether a statement is defamatory or not 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. A statement is
defamatory: (a) if most citizens would shun or avoid a person in consequence of the
statement, (b) if a substantial and respectable proportion of society would think less
of a person.
The meaning of words in a libel action "is a matter of impression as an ordinary
mangets on the first reading not on a later analysis" (the question is not of construction
in the legal sense). When the statement causes any one to be regarded with feelings
of hatred, contempt, ridicule, fear, dislike or disesteem, it is defamatory. No action for
damages can lie for mere insult. If, however, the insulting words are also likely to
cause ridicule and humiliation they are actionable. Further, to say that a product does
not answer its purpose is not defamatory but to say that a baker's bread is always
unwholesome is defamatory.
In South India Railway Co. v Ramakrishna I.L.R. (1890) 13 Mad. 34, the
railway guard, while checking the tickets and calling upon the plaintiff to produce his
ticket said to him in the presence of the other passengers, "I suspect you are travelling
with a wrong (or false) ticket." The plaintiff produced the ticket, which was in order.
Held that the words spoken by the guard were spoken bona fide and under the
circumstances of the case there was no defamation.
In Sim v Stretch (1936) 2 All ER 1237 (HL), the plaintiff's house-maid left
service and joined the defendant. In a telegram by the defendant, it was written "Edith
has resumed her service with us today. Please send her possessions and the moneY
31
Law of Torts 1 9 9
borrowed, also her wages." The plaintiff claimed damages, alleging that these words
were defamatory in as much as they implied that the plaintiff was in such financial
difficulties that he had gone to the extent of borrowing money from his servant. It was
held that the words were not reasonably capable of any defamatory meaning.
The Innuendo
Sometimes the statement may prima facie be innocent (i.e. natural and ordinary
meaning is not defamatory) but because of some latent or secondary meaning it may
be considered to be defamatory. Even a statement of commendation may be defamatory
in the context in which it is said. The statement that a lady has given birth to a child
is defamatory when the lady is unmarried.
In Tolley v J. S. Fry & Sons, Ltd (1931) A.C. 333, the defendants issued an
advertisement in which a famous amateur golf champion was shown (without his
consent) as a caricature, playing golf with a packet of chocolate protruding from his
pocket and a comic caddy saying that the chocolate was excellent as the plaintiff's
drive. The ad was held to be defamatory.
Intention to defame is not necessary— When the words are considered to be defamatory
by the persons to whom the statement is published there is defamation, even though
the persons, making the statement believed it to be innocent. In Cassidy v Daily
Mirror Newspapers Ltd. (1929) 2 K.B. 331, Mr. Cassidy did not live with his lawful
wife (Mrs. Cassidy) but occasionally came and stayed with her at her flat. The
defendants published in their newspaper a photograph of Mr. Cassidy and Miss 'X'
with the following words underneath: "Mr. M. Cassidy, the race house owner, and
Miss 'X', whose engagement has been announced." Mrs. Cassidy sued the defendant
for libel alleging that the innuendo was that Mr. Cassidy was not her husband and he
lived with her in immoral cohabitation. Held that the innuendo was established
(2) The Words Must Refer to the Plaintiff
In Halton & Co. v Jones (1910) A.D. 20, the defendants, newspaper proprietors,
published a fictional article in their newspaper by which imputations were cast on the
morals of a fictitious person—Artemus Jones. A real person of the same name i.e.
Artemus Jones, brought an action for libel. His friends, who read that article, swore
that they believed that the article referred to him. The defendants were held liable.
Section 4 of the Defamation Act, 1952 (English) lays down the procedure by
which an innocent author or publisher can avoid his liability. The defendant must
prove: (i) that the words which had been published by him were published innocently,
and (ii) that as soon as he came to know that these words published by him resulted
in the defamation of the plaintiff, an offer of amends (a suitable correction and an
apology) was made. In India, law is possibly the same.
Defamation of a class of persons—Defamation is an injury to a man's reputation,
which is a tight in rem. By its very nature, reputation for the purpose of the law of
torts is that of an individual and not a class of persons. However, I f a man wrote that
all lawyers were thieves, no particular lawyer could sue him unless there was something
to point to the particular individual." It has been 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. It may be noted that no suit for defamation
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is maintainable by a partnership firm as it is not a legal person. The
individual
partners may bring suit in such a case.
Defamation of the deceased—Defaming a deceased person is no tort. Under erithtn,,t.
law, it may amount to defamation to impute anything to a deceased person i f -'416.
imputation would harm the reputation of that person if living, and is intended to ye
hurtful to the feelings of his family/other near relatives (Sec. 499, Explanation, p
• .C.).
(3) The Words Must be Published
Publication means making the defamatory matter known to some person other than
the person defamed. Sending the defamatory letter to the plaintiff is no defamation
It is defamation only if more than two persons are involved. If a third person wrongful'''.Y
reads a letter meant for the plaintiff the defendant is not liable. It is no publication
as it is unauthorized [Huth v Huth (1915) K.B. 32]. But if a defamatory letter sett
to the plaintiff is likely to be read by somebody else (e.g. clerk or spouse) there is
a publication [Theaker v Richardson (1962) 1 WLR 151]. When the defamatory
matter is contained in a postcard or a telegram, the defendant is liable even without
a proof that somebody else read it.
In the eyes of law, husband and wife are one person and the communication of
adefamatory matter from the husband to the wife or vice versa is no publication, in
T J Ponnen v M.C. Verghese (AIR 1970 SC 1876), the question was whether a letter
from the husband to the wife containing defamatory matter concerning the father-in,
law (wife's father) could be proved in an action by the father-in-law against his son.
in-law. His wife had passed on those letters to her father (M.C. Verghese). The
husband (Ponnen) contended that the letters addressed by him to his wife are not
except with his consent, admissible in evidence by virtue of Sec. 122, Evidence Act
Held that the husband is liable for defamation but the defamatory statement has to be
proved from evidence other than that of the wife.
It is important to note that the communication of amatter defamatory of one spouse
to the other is sufficient publication. In Theaker v Richardson, defendant wrote a letter
to the plaintiff making false allegations of her being a prostitute. The letter was sent under
the circumstances that the plaintiff's husband in all probability would have read the same
The plaintiff's husband opened and read it. The defendant was held liable.
In Nemi Chand v Khemraj (AIR 1973 Raj. 240), the defendants called a meeting
against the plaintiff andmade wild imputations against him. One of the defendants got
thesespeeches printed and the printouts were lying in his godown. The plaintiff argued
that even printing constitutes publication. Held that mere printing is not actionable
Defences to Defamation
(I) justification or Truth
In a civil action for defamation truth of the defamatory matter is complete defence
(under criminal law, besides being true the imputation must be shown to have been
made for public good). The reason for the defence is that "the law will not permit a
man to recover damages in respect of an injury to a character which he either does
not or ought not to possess." The defence is available even though the publication
wasmade maliciously.
32
Law of Torts 2 0 1
If the statement is false, it is no justification that the defendant honestly and on
reasonable grounds believed it to be true. In Radheyshyam Trwcrri v Eknath (AIR
1985 Bom. 285), the defendant, who was editor, printer and publisher of a newspaper
published a series of articles against the plaintiff, a Block Development Officer,
alleging that the plaintiff had issued false certificates, accepted bribe and adopted
illegal means in various matters. In an action for defamation, the defendant could not
prove that the facts published by him were true and therefore, he was held liable.
(2) Fair Comment
It is generally a defence available to authors, editors, critics, etc. I t is critical
appreciation of existing facts and not invention of new facts. Further, the comment
must be `fair' i.e. without malice. Finally, this comment must be in public interest.
Administration of Government departments, public companies, public institutions and
local authorities, public meetings, pictures, theatres, public entertainment, text books,
novels, etc. are considered to be matters of public interest.
'Comment' means an expression of opinion on certain facts rather than making
a statement of fact. A fair comment is a defence by itself whereas if it is a statement
of fact that can be excused only if justification or privilege is proved regarding that.
For example, A says of a book published by Z — "Z's book is foolish: Z must be a
weak man." It is a comment based on Z's book and A will be protected if he has said
that in good faith. But i f A says - "I am not surprised that Z's book is foolish, for
he is a weak man." It is not a comment but a statement of fact, and cannot be called
a fair comment.
In McQuire v Western Morning News Co. (1903) 2 K.B. 100, the comment in
question was "A three act musical absurdity, written and composed by T.C. McQuire is
composed of nothing but nonsense of a not very humorous character, whilst the music
is far from attractive." Held that the words may be fairly called criticism. However,
criticism could not be used as a cloak for mere invective (sarcasm or satire); an art
critic's opinion of a prominent dancer's performances that the world would be happier
place if her feet had ambitions other than dancing amounts to sarcasm.
The comment could not be fair when it is based upon untrue facts. In Tushar Kanti
Ghash v Bina Bhowmic (1953) 57 C.W.N. 378, the Amrit Bazar Patrika published a news
item which contained statements like `day light robbery' which were factually incorrect
As they were untrue statement of fact, the defence of fair comment was defeated.
(3) Privilege
There are certain occasions when the law recognizes that the right of free speech
outweighs the plaintiff's right to reputation: the law treats such occasions to be
"privileged" and a defamatory statement made on such occasion is not actionable.
Privilege may be either 'Absolute' or 'Qualified'.
Absolute privilege — It is an absolute defence as under it no action lies for the
defamatory statement even though the statement is false or has been made maliciously.
It is recognized in 'Parliamentary proceedings', 'Judicial proceedings', and 'State
communications'.
In Judicial proceedings, there can be no action against judges, counsels, witnesses,
or parties for words (written or spoken) in course of any proceedings before any
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court, even though the words were written or spoken maliciously, without
justification or excuse. However, a remark by a witness which is wholly irrelevai""Y
re
n could damage one's reputation. Further, in all cases of joint publication each defendant
the matter of enquiry is not privileged.
Qualified privilege— It is different from the defence of absolute privilege in
respects. First, in this case it is necessary that the statement must've been " . ' °
without malice. Second, there must be an occasion for making the statement. GennZe,
such a privilege is available either when the statement is made in discharge 0,71
or protection of an interest, or the publication is in the form of report of par-Batten:1Y.
judicial or other public proceedings. A privileged occasion (in reference to quaii-fili
privilege) is an occasion where the person who makes a communication has an interest
or a duty (legal, social or moral) and the person to whom it is made has a corresponding
interest or a duty to receive it. This reciprocity is essential [Adam v Ward (1917) At.
309]. The following illustrations will clear the point:
(i) A, a shopkeeper, says to B, who manages his business— "Sell nothing
to Z unless he pays you ready money, for I have no opinion of his
honesty." A is protected if he has made this imputation on Z in gond
faith for the protection of his own interest.
(ii) A former employer has a moral duty to state a servant's character to a
person who is going to employ the servant. But i f a former employer,
without any enquiry, publishes the character of his servant with a motive
to harm the servant, the defence of qualified privilege cannot be take&
(iii) I n the case of publication of defamatory matter in a newspaper, if duty10
the public exists (RK Karanjiav KMD. Thackrsey AIR 1970 Born 424)
(iv) Such communication may be made in cases of confidential relationships
like those of husband and wife, father and his son and daughter, guardian
and ward, master and servant or agent, solicitor and his client, partner
or even close friends. Thus, a father may acquaint his daughter about the
character of a man whom she is going to many.
The presence of 'malice' destroy the defence of qualified privilege. The plaintiff
must prove actual or express 'malice' or 'malice in fact' (i.e. actual wrong state of
mind) as distinguished from 'implied malice' which the law presumes from the mere
publication of defamatory matter. In Horrocks v Lawe (1964) 1 All ER 662, held that
howsoever prejudiced the defendant may have been or howsoever irrational in leaping
to conclusions, unfavourable to plaintiff, but if he believed in the truth of what he had
said on privileged occasion that entitled him to succeed in his defence of privilege
Burden of Proof
The burden of proof is on the plaintiff. Thus, for pleading an innuendo, the plaintiff
must make out the special circumstances which made the words actionable and he
mustset forth in his pleading the defamatory sense, he attributes to them.When the
defence to defamation is taken, the burden of proof is on the defendant. In a defence
of fair comment, the defendant has to show that his comments contain no misstatements
of fact. In a defence of privilege (qualified), the defendant has to prove that the
occasion is privileged.
It is important to note that in a case of libel it is not necessary to prove the
actual loss of reputation; it is sufficient to establish that the defamatory statements I
33
Law of Torts 2 0 3
is liable for all the ensuing damage (viz for a libel in a newspaper, the editor, the
printer and the publisher are liable to be sued either separately or together).
Who can sue— The publication of defamation can seldom give a right of action to
any one but the person defamed. The fact that a defamatory statement has caused
damage to other persons does not entitle them to sue. Thus a brother cannot sue for
slander of his sister, nor a father for defaming his daughter, nor the heir and nearest
relation of a deceased person for defamatory words spoken of the deceased. The
Calcutta High Court permits the husband to sue where unchastity is imputed to his
wife, but the Madras High Court not.
7. CONSPIRACY
When two or more persons without lawful justification, combine for the purpose of
wilfully causing damage to the plaintiff, and actual damage results therefrom, they
commit the tort of conspiracy. It may consist in the agreement of two or more to do
an unlawful act or to do a lawful act by unlawful means.
Conspiracy is both a tort and a crime; it is a stautory offence. However, under
criminal law merely an agreement between the parties to do an illegal act or a legal
act by illegal means is actionable; it is not necessary that the conspirators must have
acted in pursuance of their agreement. The tort of conspiracy i s not committed by
a mere agreement between the parties, the tort is completed only when actual damage
results to the plaintiff by some overt act or acts of the defendants. The mere act of
conspiracy is not subject of civil action.
A conspiracy to injure differs widely from an invasion of civil rights by a single
individual because a number of things not in themselves unlawful if done separately
may with conspiracy become dangerous and alarming.
Conspiracy to Injure
The tort of conspiracy necessarily involves advertence to and affirmation of the
object of the combination being infliction of damage or destruction on the plaintiff.
When the object of persons combining is to protect or further their own legitimate
interest rather than causing damage to the plaintiff that is a justification for their
combination and they will not be liable even though their concerted act causes
damage to the plaintiff; however, for that the means adopted by them should not be
unlawful (violence, fraud, etc.) and they do not infringe rights of other people.
In Sorrel v Smith (1925) AC 700, the plaintiff, a retail newsagent, who was
accustomed to take his newspapers from R withdraw his custom from Rand started
taking the newspapers from W. The defendants, members of a committee of circulation
managers of London daily papers, threatened the cutting of the supply of newspaper
to W if W continued to supply newspapers to the plaintiff. Since the defendants had
acted to promote their business interests they were held not liable.
But a combination, not in pursuit of trade interests, but in pursuit merely of
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court, even though the words were written or spoken maliciously, without
justification or excuse. However, a remark by a witness which is wholly irrelevai""Y
re
n could damage one's reputation. Further, in all cases of joint publication each defendant
the matter of enquiry is not privileged.
Qualified privilege— It is different from the defence of absolute privilege in
respects. First, in this case it is necessary that the statement must've been " . ' °
without malice. Second, there must be an occasion for making the statement. GennZe,
such a privilege is available either when the statement is made in discharge 0,71
or protection of an interest, or the publication is in the form of report of par-Batten:1Y.
judicial or other public proceedings. A privileged occasion (in reference to quaii-fili
privilege) is an occasion where the person who makes a communication has an interest
or a duty (legal, social or moral) and the person to whom it is made has a corresponding
interest or a duty to receive it. This reciprocity is essential [Adam v Ward (1917) At.
309]. The following illustrations will clear the point:
(i) A, a shopkeeper, says to B, who manages his business— "Sell nothing
to Z unless he pays you ready money, for I have no opinion of his
honesty." A is protected if he has made this imputation on Z in gond
faith for the protection of his own interest.
(ii) A former employer has a moral duty to state a servant's character to a
person who is going to employ the servant. But i f a former employer,
without any enquiry, publishes the character of his servant with a motive
to harm the servant, the defence of qualified privilege cannot be take&
(iii) I n the case of publication of defamatory matter in a newspaper, if duty10
the public exists (RK Karanjiav KMD. Thackrsey AIR 1970 Born 424)
(iv) Such communication may be made in cases of confidential relationships
like those of husband and wife, father and his son and daughter, guardian
and ward, master and servant or agent, solicitor and his client, partner
or even close friends. Thus, a father may acquaint his daughter about the
character of a man whom she is going to many.
The presence of 'malice' destroy the defence of qualified privilege. The plaintiff
must prove actual or express 'malice' or 'malice in fact' (i.e. actual wrong state of
mind) as distinguished from 'implied malice' which the law presumes from the mere
publication of defamatory matter. In Horrocks v Lawe (1964) 1 All ER 662, held that
howsoever prejudiced the defendant may have been or howsoever irrational in leaping
to conclusions, unfavourable to plaintiff, but if he believed in the truth of what he had
said on privileged occasion that entitled him to succeed in his defence of privilege
Burden of Proof
The burden of proof is on the plaintiff. Thus, for pleading an innuendo, the plaintiff
must make out the special circumstances which made the words actionable and he
mustset forth in his pleading the defamatory sense, he attributes to them.When the
defence to defamation is taken, the burden of proof is on the defendant. In a defence
of fair comment, the defendant has to show that his comments contain no misstatements
of fact. In a defence of privilege (qualified), the defendant has to prove that the
occasion is privileged.
It is important to note that in a case of libel it is not necessary to prove the
actual loss of reputation; it is sufficient to establish that the defamatory statements I
34
Law of Torts 2 0 3
is liable for all the ensuing damage (viz for a libel in a newspaper, the editor, the
printer and the publisher are liable to be sued either separately or together).
Who can sue— The publication of defamation can seldom give a right of action to
any one but the person defamed. The fact that a defamatory statement has caused
damage to other persons does not entitle them to sue. Thus a brother cannot sue for
slander of his sister, nor a father for defaming his daughter, nor the heir and nearest
relation of a deceased person for defamatory words spoken of the deceased. The
Calcutta High Court permits the husband to sue where unchastity is imputed to his
wife, but the Madras High Court not.
7. CONSPIRACY
When two or more persons without lawful justification, combine for the purpose of
wilfully causing damage to the plaintiff, and actual damage results therefrom, they
commit the tort of conspiracy. It may consist in the agreement of two or more to do
an unlawful act or to do a lawful act by unlawful means.
Conspiracy is both a tort and a crime; it is a stautory offence. However, under
criminal law merely an agreement between the parties to do an illegal act or a legal
act by illegal means is actionable; it is not necessary that the conspirators must have
acted in pursuance of their agreement. The tort of conspiracy i s not committed by
a mere agreement between the parties, the tort is completed only when actual damage
results to the plaintiff by some overt act or acts of the defendants. The mere act of
conspiracy is not subject of civil action.
A conspiracy to injure differs widely from an invasion of civil rights by a single
individual because a number of things not in themselves unlawful if done separately
may with conspiracy become dangerous and alarming.
Conspiracy to Injure
The tort of conspiracy necessarily involves advertence to and affirmation of the
object of the combination being infliction of damage or destruction on the plaintiff.
When the object of persons combining is to protect or further their own legitimate
interest rather than causing damage to the plaintiff that is a justification for their
combination and they will not be liable even though their concerted act causes
damage to the plaintiff; however, for that the means adopted by them should not be
unlawful (violence, fraud, etc.) and they do not infringe rights of other people.
In Sorrel v Smith (1925) AC 700, the plaintiff, a retail newsagent, who was
accustomed to take his newspapers from R withdraw his custom from Rand started
taking the newspapers from W. The defendants, members of a committee of circulation
managers of London daily papers, threatened the cutting of the supply of newspaper
to W if W continued to supply newspapers to the plaintiff. Since the defendants had
acted to promote their business interests they were held not liable.
But a combination, not in pursuit of trade interests, but in pursuit merely of
204 L a w https://t.me/RajasthanJudiciaryMaterials
Guide for Competitive Examinations
malicious purpose to injure another would be clearly unlawful, and if an
resulted, an action lies, e.g. a combination without justification or excuse to inin,..413
man in his trade by inducing his customers or servants to break their contracts' a
him, or not to deal with him or continue in his employment [Quinn v Leathern 090With
AC 495]. However, malice is not an essential requirement of the tort of con, l )
'"Pmacy
Where the plaintiff appeared in character upon the stage, and thereupon
ib
defendants, with other persons, hissed and hooted at the plaintiff, so as to compel h;14
to desist from the performance and thereby caused the plaintiff to lose his engage
it was held that a good cause of action was shown [Gregory v Duke of Brunswic7:
"The Hissing case" (1844) 6 M&G 205].
In Huntley v Thornton (1957)1 All ER 234, the plaintiff, a member of a union-'
refused to comply with the union's call for strike. The defendants, the secretary and
somemembers of the union, wanted his expulsion from the union but the executive
council of the union decided not to do that. The defendants acting out of grudge
against the plaintiff made efforts to see that the plaintiff remained out of work. The
defendants were liable as their acts were not in furtherance of any union interest bee
were actuated by malice and grudge.
Unlawful Means in Conspiracy
Where the aim is good but the means employed are unlawful, for example, illegal
labour strike for a good cause, the result depends upon facts. Unless the predominant
purpose is to injure the plaintiff, there is no liability for the tort of conspiracy although
the means employed by the combination are unlawful (See [English] Trade Disputes
Act, 1905 and the [Indian] Industrial Disputes Act).
In Rohtas Industries Ltd v Rohtas Industries Staff Union (1976)2 SCC 82, it
was held that if the object of a strike by workmen belonging to a Union is to bring
the employer to terms with the employees or to bully the rival Trade Union inn
submission, there cannot be an actionable combination in tort although the strike is
illegal under the Industrial law. Held that the tort of conspiracy was not made out for
the object of the combiners was not to harm the management but to benefit themselves,
The tort of conspiracy to injure by unlawful means is not complete without
pecuniary loss. Damages for injury to reputation or feelings can only be recovered in
action for defamation and not in an action for conspiracy to injure by unlawful means
[Lonrho Plc. v Fayed (1994)1 All ER 188 (CA).
Tort of Conspiracy in India
How far the English tort of conspiracy can be transplanted in the Indian law is no
yet settled. Krishna lyer 1. observed : "Whatever the merits of the norms, violation
of which constituted 'conspiracy' in English law, it is a problem for creative Indian
jurisprudence to consider, detached from anglophonic inclination, how far a mete
combination of men working for furthering certain objectives can be prohibited as a
tort, according to the Indian value system." The court, however, in Rohlas Industries
Ltd. case proceeded to apply the English law.
35
Law of Torts 2 0 5
8. NUISANCE
S
The term 'nuisance' has exhaustive and diverse definitions. The word 'nuisance' is
derived from the French word moire, to do hurt, or to annoy. In Durga Prasad v State
(AIR 1962 Raj 92), it was observed that 'nuisance' ordinarily means anything, which
annoys, hurts or that which is offensive.
Nuisance as a tort means an unlawful interference with a person's use or
enjoyment of land, or some right over, or in connection with it (Winfield). Acts
interfering with the comfort, health or safety are the examples of it. Nuisance is the
wrong done to a man by unlawfully disturbing him in the enjoyment of his property,
or, in some cases, in the exercise of a common right (Pollock).
Nuisance may be caused by negligence, but it is no branch of negligence and it
is no defence that all reasonable care to prevent it is taken. Nuisance is generally a
continuing wrong (state of affairs). It must not be momentary though it could be temporary.
A constant noise, smell or vibration is a nuisance and ordinarily an isolated act of
escape of noise cannot be considered to be a nuisance e.g., an isolated act of hitting a
cricket ball on to a road. However, in Dollman v Hillman Ltd. (1941) 1 All ER 355,
the defendant was held liable for the isolated act, when the plaintiff slipped on a piece
of fat lying outside the defendant's butcher's shop, in nuisance and negligence.
Kinds o f Nuisance
Nuisance is of two kinds: Public or common nuisance and private nuisance. Public
nuisance is a crime (Sec. 268, IPC) whereas private nuisance is a tort or civil wrong.
Public Nuisance
A public nuisance can be defined as an unreasonable interference with a right common
to general public. Obstructing a public way by digging a trench, carrying on trades
which cause offensive smells or intolerable noises, etc. are examples of public truiwtor,
Thus, the acts constituting public nuisance are all of them unlawful acts; those, which
constitute private nuisance, are not necessarily or usually unlawful. Public nuisance
does not create a civil cause of action for any person. In order that an individual may
have a private right of action in respect of a public nuisance -
(i) He must show special and particular injury to himself beyond that
which is suffered by the rest of public.
(ii) Such injury must be direct, and not a mere consequential injury; as,
where one way is obstructed, but another is left open.
(iii) T h e injury must be shown to be of a substantial character.
In Dr. Ram Raj Singh v Babulal (AIR 1982 All 285), the defendant erected a
brick grinding machine adjoining the premises of the plaintiff, who was a doctor. The
dust generated by the machine entered the plaintiff's chamber and caused physical
inconvenience to him and his patients. It was held that special damage to the plaintiff
had been proved.
In Campbell v Paddington Corp». (1911) 1 K.B. 869, an uninterrupted view of
the funeral procession of King Edward VIII could be had from the window of the
204 L a w https://t.me/RajasthanJudiciaryMaterials
Guide for Competitive Examinations
malicious purpose to injure another would be clearly unlawful, and if an
resulted, an action lies, e.g. a combination without justification or excuse to inin,..413
man in his trade by inducing his customers or servants to break their contracts' a
him, or not to deal with him or continue in his employment [Quinn v Leathern 090With
AC 495]. However, malice is not an essential requirement of the tort of con, l )
'"Pmacy
Where the plaintiff appeared in character upon the stage, and thereupon
ib
defendants, with other persons, hissed and hooted at the plaintiff, so as to compel h;14
to desist from the performance and thereby caused the plaintiff to lose his engage
it was held that a good cause of action was shown [Gregory v Duke of Brunswic7:
"The Hissing case" (1844) 6 M&G 205].
In Huntley v Thornton (1957)1 All ER 234, the plaintiff, a member of a union-'
refused to comply with the union's call for strike. The defendants, the secretary and
somemembers of the union, wanted his expulsion from the union but the executive
council of the union decided not to do that. The defendants acting out of grudge
against the plaintiff made efforts to see that the plaintiff remained out of work. The
defendants were liable as their acts were not in furtherance of any union interest bee
were actuated by malice and grudge.
Unlawful Means in Conspiracy
Where the aim is good but the means employed are unlawful, for example, illegal
labour strike for a good cause, the result depends upon facts. Unless the predominant
purpose is to injure the plaintiff, there is no liability for the tort of conspiracy although
the means employed by the combination are unlawful (See [English] Trade Disputes
Act, 1905 and the [Indian] Industrial Disputes Act).
In Rohtas Industries Ltd v Rohtas Industries Staff Union (1976)2 SCC 82, it
was held that if the object of a strike by workmen belonging to a Union is to bring
the employer to terms with the employees or to bully the rival Trade Union inn
submission, there cannot be an actionable combination in tort although the strike is
illegal under the Industrial law. Held that the tort of conspiracy was not made out for
the object of the combiners was not to harm the management but to benefit themselves,
The tort of conspiracy to injure by unlawful means is not complete without
pecuniary loss. Damages for injury to reputation or feelings can only be recovered in
action for defamation and not in an action for conspiracy to injure by unlawful means
[Lonrho Plc. v Fayed (1994)1 All ER 188 (CA).
Tort of Conspiracy in India
How far the English tort of conspiracy can be transplanted in the Indian law is no
yet settled. Krishna lyer 1. observed : "Whatever the merits of the norms, violation
of which constituted 'conspiracy' in English law, it is a problem for creative Indian
jurisprudence to consider, detached from anglophonic inclination, how far a mete
combination of men working for furthering certain objectives can be prohibited as a
tort, according to the Indian value system." The court, however, in Rohlas Industries
Ltd. case proceeded to apply the English law.
36
Law of Torts 2 0 5
8. NUISANCE
S
The term 'nuisance' has exhaustive and diverse definitions. The word 'nuisance' is
derived from the French word moire, to do hurt, or to annoy. In Durga Prasad v State
(AIR 1962 Raj 92), it was observed that 'nuisance' ordinarily means anything, which
annoys, hurts or that which is offensive.
Nuisance as a tort means an unlawful interference with a person's use or
enjoyment of land, or some right over, or in connection with it (Winfield). Acts
interfering with the comfort, health or safety are the examples of it. Nuisance is the
wrong done to a man by unlawfully disturbing him in the enjoyment of his property,
or, in some cases, in the exercise of a common right (Pollock).
Nuisance may be caused by negligence, but it is no branch of negligence and it
is no defence that all reasonable care to prevent it is taken. Nuisance is generally a
continuing wrong (state of affairs). It must not be momentary though it could be temporary.
A constant noise, smell or vibration is a nuisance and ordinarily an isolated act of
escape of noise cannot be considered to be a nuisance e.g., an isolated act of hitting a
cricket ball on to a road. However, in Dollman v Hillman Ltd. (1941) 1 All ER 355,
the defendant was held liable for the isolated act, when the plaintiff slipped on a piece
of fat lying outside the defendant's butcher's shop, in nuisance and negligence.
Kinds o f Nuisance
Nuisance is of two kinds: Public or common nuisance and private nuisance. Public
nuisance is a crime (Sec. 268, IPC) whereas private nuisance is a tort or civil wrong.
Public Nuisance
A public nuisance can be defined as an unreasonable interference with a right common
to general public. Obstructing a public way by digging a trench, carrying on trades
which cause offensive smells or intolerable noises, etc. are examples of public truiwtor,
Thus, the acts constituting public nuisance are all of them unlawful acts; those, which
constitute private nuisance, are not necessarily or usually unlawful. Public nuisance
does not create a civil cause of action for any person. In order that an individual may
have a private right of action in respect of a public nuisance -
(i) He must show special and particular injury to himself beyond that
which is suffered by the rest of public.
(ii) Such injury must be direct, and not a mere consequential injury; as,
where one way is obstructed, but another is left open.
(iii) T h e injury must be shown to be of a substantial character.
In Dr. Ram Raj Singh v Babulal (AIR 1982 All 285), the defendant erected a
brick grinding machine adjoining the premises of the plaintiff, who was a doctor. The
dust generated by the machine entered the plaintiff's chamber and caused physical
inconvenience to him and his patients. It was held that special damage to the plaintiff
had been proved.
In Campbell v Paddington Corp». (1911) 1 K.B. 869, an uninterrupted view of
the funeral procession of King Edward VIII could be had from the window of the
208 L a w https://t.me/RajasthanJudiciaryMaterials
Guide for Competitive Examinations
plaintiff's building. The plaintiff accepted certain payments from certain persons and
permitted them to occupy seats in her building. Before the date of the said processi,
thedefendant corporation constructed a stand on the highway in front of the plaintiff,"8
building, which obstructed the view. Held, the plaintiff was entitled to compensaejok
Private Nuisance (Tort of Nuisance)
To constitute the tort of nuisance the following essentials are required to be proved.
(i) Unreasonale interference- Interference may cause damage to the
plaintiff's property or may cause personal discomfort to him in the
enjoyment of the property. Every interference is not a nuisance. Thus
aperson having a house by the roadside must put up with suet;
inconvenience, which is incidental to the traffic. Running a flour mill in
aresidential area has been held to be nuisance (Radhey Shyam v Gw.
Prasad AIR. 1978 All 86).
In Sadleigh v 0' Callageham (1940) AC 880, held that the test of reasonableness
is according to the ordinary usages of mankind living in society. An act, which is
otherwise reasonable, doesn't become unreasonable and actionable due to the
sensitiveness of the plaintiff. If certain kind of traffic is no nuisance for a healthy mark
it will not entitle a sick men to bring an action if he suffers thereby, even though the
damage is substantial.
(ii) Interference with the use or enjoyment of land- Interference may cause
either injury to the property itself (for example, by allowing the branches
of a tree to overhang on the land of another person, or the escape of the
roots of a tree, water, gas, smoke or fumes, etc. on the neighbour's land
or even by vibrations) or injury to comfort or health of occupants of
certain property.
In Noble v Harrison (1926) 2 KB 332, however, held that the fact that the
branch of tree was overhanging on the highway was not nuisance, nor was the nuisance
created by its fall as the defendant neither knew or could have known that the branch
would break and fall. However, projections on private land constitute nuisance, as
there is an interference with enjoyment of one's property.
It is to be noted that only substantial interference with comfort and conveniexe
in using the premises is actionable as a nuisance. A mere trifling or fanciful
inconvenience is not enough. Inconvenience and discomfort from the point of view
of a particular plaintiff is not the test of nuisance but the test is how an average man
residing in the same area take it. Disturbances to neighbours throughout the night by
the noises of horses in a building converted into a stable was nuisance (Ball v Ray).
Similarly, attraction of large and noisy crowd outside a club kept open till 3 a.m. was
held to be nuisance (Bellamy v Wells).
Under the tort of nuisance, a person cannot increase the liabilities of his neighbour
by applying his property to special uses, whether for business or pleasure. Thus, 0
person carrying on an exceptionally delicate trade cannot complain i f an injury Is
caused by his neighbour doing something lawful on his property (Robinson v Kilvert).
Damages in Nuisance
In an action for nuisance, actual damage is required to be proved. In the case of
37
Law of Torts 2 0 7
public nuisance. the plaintiff can bring an action in tort only when he proves a special
damage to him. In private nuisance, although damage is one of the essentials, the law
will often presume it.
Defences t o Nuisance
(i) Prescription- A right to do an act, which would otherwise be a private
nuisance, may be acquired by prescription (i.e. by elapse of certain
number of years). 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 of right for a period of 20 years.
(ii) Statutory authority- An act done under the authority of a statute is a
complete defence.
However, there are certain ineffectual defences to nuisance:
(i) Nuisance due to act of others- Sometimes the act of two or more persons,
acting independently of each other, may constitute a nuisance although
the act of any one of them alone would not be so.
(ii) Public good- It is no defence to say that what is a nuisance to a particular
plaintiff is beneficial to the public in general, otherwise, the public
utility undertaking could be held liable for the unlawful interference
with the rights of individuals.
(iii) Reasonable care- Use of reasonable care to prevent nuisance is generally
no defence.
(iv) 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 nuisance already exists.
Even in a noisy locality, i f there is a substantial addition to the noise by
introduction of some machine, etc. at defendant's premises which material affects the
physical comforts of the occupants of the plaintiff's house, then also noise will amount
to actionable nuisance (Dhanna Lal v Thakur Chittar Singh AIR 1959 M.P. 240).
Abatement of Nuisance
An occupier of land is permitted to abate, i.e. to terminate by his own act, nuisance
which is affecting his land. For example, he may cut the branches (overhanging) or
the roots of the neighbour's trees which have escaped to his land. Generally before
abatement is made, a 'notice' to the other party is required unless the nuisance
constitute a danger to the life or property. When the abatement is possible without
going on the wrongdoer's land, the same may be done without notice.
It is a remedy which is not favoured by the law as it may lead to breach of the
peace. The party abating a nuisance must be careful not to interfere with the property
of the wrong-doer (thus the abater should not appropriate to himself the branches of
the overhanging tree or even the fruits found on them) in excess of what is necessary
to abate the nuisance, and i f there are alternative methods of abatement the least
injurious method must be adopted. A private individual cannot abate a public nuisance,
unless it causes him some special and peculiar harm; the remedy lies in the wit.
208 L a w Guide for Competitive Examinations
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9. FALSE I M P R I S O N M E N T A N D
OTHER FORMS O F T R E S PA S S
■ be, viz. a few minutes [Mee v Cruikshank (1902)86 LT 708]. I f there are =risky
Trespass, in its widest sense, signifies any transgression or offence against the law of
nature, of society, or of the country, whether relating to a man's person or to his
property. The principle of 'trespass' was that any direct invasion o f a protected
interest from a positive act was actionable subject to justification. But the most
obvious acts of trespass are:
(1) Trespass viet armis or Trespass to Person.
(2) Trespass quare clausum fergit or Trespass to Land.
(3) Tresspass de bonis asportatis or Trespass to Goods or Chattels.
There are two important rules of trespass: (i) that it is for the defendant to plead
and prove justification and not for the plaintiff to show that the defendant's conduct
wasunreasonable; and (ii) that damage is not an essential element and need not be
proved by the plaintiff. The importance of trespass lies in that it can be used for the
protection of one's liberty and vindication of constitutional rights. "Trespass trips up
the zealous bureaucrat, the eager policeman and the officious citizen".
[ I ] Trespass to Person
The three chief forms of trespass to person are: Assault, Battery and False
Imprisonment.
(a) False Imprisonment
False imprisonment consists in the imposition of a total restraint for some period,
however short, upon the liberty of another, without sufficient lawful justification. "Every
restraint of the liberty of one person by another is in law an imprisonment and, if
imposed without lawful cause, constitutes a false imprisonment which is both a criminal
offence and an actionable tort" (Ram Pyare La! v Om Prakash 1977 Cr LI 1984).
To constitute this wrong 'imprisonment' in the ordinary sense is not required,
asa person may be falsely imprisoned, viz. by being confined within the four walls
or by being prevented from leaving the place where he is (that may be his own house
or an open field or a bus/train). The detention of the person may be either (a) actual,
i.e. physical (laying hands upon a person), or (b) constructive, i.e. by mere show of
authority (an officer telling any one that he is wanted and making him accompany).
Total Restraint
Under criminal law whether the restraint is total ('wrongful confinement', Sec.340,
IPC) or partial ('wrongful restraint', Sec.339, IPC), the same is actionable. A Partial
restraint is not actionable under the civil law. Thus, when a man is prevented from
going to a particular direction but is free to go to any other direction or to go back,
there is no false imprisonment. In Bird v Jones (1845) 7 QB 742, the plaintiff was
not allowed by the defendants to cross a bridge through footway but he was tree to
cross the same through the carriage way. Since the restraint was not total there was
held to be no false imprisonment.
38
Law of Torts 2 0 9
The total restraint results in false imprisonment, however, short its duration may
'means of escape' the restraint cannot be termed as total.
Knowledge of a person that he has been imprisoned is not required and a
person may be imprisoned without his knowing it, e.g. while he is asleep, drunk, or
unconscious. In Merring v Grahame White Aviation Co. (1920) 121 LT 44, an employee
suspected of having stolen the company's property was called to the company's office
and was asked to stay in the waiting room, one or two employees remained outside
the room. It was held that the plaintiff's detention by the company's officers before
the police had arrived was wrongful and amounted to false imprisonment.
Unlawful Detention
For false imprisonment the detention should be without any lawful justification. Making
a false complaint to the police by the defendants leading to the arrest of the plaintiffs,
if without any justification, will make the defendants liable for false imprisonment. A
person may be liable for false imprisonment not only when he directly arrests/detains
the plaintiff, but also when he was "active in promoting or causing" the arrest or
detention. Bad faith is not necessary to be proved.
If a police officer orders an arrest without having such a power or 'reasonable
suspicion' he is responsible for the same. If reasonable suspicion arises subsequent
to the arrest as a result of questioning the accused, the arrest and detention till that
stage would be invalid. A pc !icemen should disclose the reason for the arrest. Otherwise
he will be liable for false imprisonment. Similarly, when a prisoner's jail sentence is
over, his detention thereafter will result in false imprisonment.
A person arrested by the orders of a judicial officer cannot sue the judicial
officer for false imprisonment, unless the judicial officer acts recklessly, illegally or
maliciously, i.e. cannot be said to be acting judicially [Anwar Hussain v Ajoy Kumar
AIR 1965 SC 1651]. A person detained by a private individual must be quickly
handed over to the police, otherwise it will amount to false imprisonment.
When detention is justified- I f a man entered certain premises subject to certain
reasonable conditions it is no wrong to prevent him from leaving those premises until
and unless those conditions are fulfilled. Thus, not allowing a person to go until he
pays reasonable charges is no false imprisonment.
Similarly, when there is volenti non fit injuria on the part of the plaintiff, the
defendant cannot be made liable. Thus, a miner going into coal mine by his own
consent cannot sue for false imprisonment i f he himself wrongfully stops the work
and wants to be taken out before the usual time.
Law permits the arrest of a person when he has committed some offence. Such
arrest may be made by a magistrate, a police officer or a private individual according
to the circumstances. In John Lewis & Co. v Times (1952)1 All ER 1203, the plaintiff
and her daughter went to a shop, where the daughter committed theft. Both of them
were detained in the office and were told to wait for managing director's decision,
where they remained for an hour. He decided to hand over them to the police. On trial
the daughter was found guilty of theft, but the mother not. The mother sued for false
imprisonment. The defendants were held not liable, in as much as she was not detained
beyond a reasonable time for the managing director to make the decision.
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Remedies:False Imprisonment
(i) Action for damages - The plaintiff is entitled to recover by wo,,
general damages compensation for the indignity or suffering which' the
false imprisonment has caused. They. should be exemplary where the
plaintiff's complaint is oppressive, arbitrary and unconstitutional actin
by the State or its servants.
In an action for trespass the burden to prove justification is on the defend
Thus, in case of false imprisonment, the plaintiff is only required to prove that he w.,';
imprisoned by the defendant; he is not required to prove special damage. It is then
for the defendant to prove the lawful justification for the same and it is not for the
plaintiff to prove its absence. It is not necessary for the plaintiff to prove any wron
intention, malice, negligence, etc. on the defendant's part.
(ii) Self-help - A person is authorised to use reasonable force in order to
have an escape from detention instead of waiting for a legal action.
ac
(iii) Habeas Corpus - It is a speedier remedy for procuring the release of a
person wrongfully detained (Arts. 32/226 of the Constitution). Byti this.
writ the person detaining is required to produce the detained person
before the court and justify the detention.
(b) Battery
A 'battery' is "intentional and direct application of force to another person without
any lawful justification". Use of force, however, trivial, is enough; physical hurt need
not be there. Least touching of another in anger is a battery (Cole v Turner 87 ER
907). Battery requires actual contact (may be indirect) with the body of another
person so a seizing and laying hold of a person so as to restrain him, spitting in the
face, throwing over a chair or carriage in which another person is sitting, throwing
water over a person, taking a person by the collar, causing another to be medically
examined against his or her will; are all held to amount to battery.
The force may be used through any object like stick, bullet, or any other
missile. Infliction of heat, light, electricity, gas, odour, etc. would probably be battery
if it can result in physical injury or personal discomfort (Winfield). Mere passive
obstruction, Rice a door/wall, however, cannot be considered as the use of force [In
boles v Ifjdie (1844)1 C & K 257, a policeman unlawfully prevented the plaintiff
from entering the club premises].
An unwanted kiss will be battery. However, touching a person in a friendly
manner or calling his attention to something is not battery. Putting handcuffs to an
undertrial prisoner and then chaining him like a dangerous animal is an unjustifiable
use of force. Harm which is unintentional or caused by pure accident is not actionable.
Thus, where A fired at a pheasant but the pellet accidentally wounded a person, A is
not liable for battery unless the A's act is wilful or negligent.
(c) Assault
Assault is an act of the defendant which causes to the plaintiff reasonable apprehension
of the infliction of battery on him by the defendant (Winfield). An assault is an
attempt or a threat to do a corporeal hurt to another, coupled with an apparent present
ability and intention to do the act. The menacing attitude and hostile purpose go
39
Law of Torts 2 1 1
make the assault unlawful; the actual contact is not necessary in an assault. The word
assault' is incorrectly used by laymen as meaning the actual infliction of force by
one person on another such as when A beats B. Thus 'popular assault begins when
legal aistsiasu:litsoenecIs'.
essential that there should be prima facie ability to do the harm. If the
fist or the cane is shown from such a distance that the threat cannot be executed, there
is no assault. Similarly, mere verbal threat is no assault unless it creates reasonable
apprehension in the plaintiff's mind that immediate force will also be used. Pointing
a loaded pistol at another is an assault. If the pistol is not loaded then even it may be
an assault, if pointed at such a distance that, if loaded, it may cause injury. If the plaintiff
knows that the pistol is unloaded there is no assault.
Interception of a blow aimed at the plaintiff by a third person will not absolve
the defendant from liability. It was so held in Stephens v Myers (1830)4 C &P 349.
The plaintiff was in the chair at a parish meeting. The defendant who sat seven places
away on the same table proved unruly, whereupon a resolution to eject him was
passed. Then the defendant said that he would rather pull the plaintiff out of the chair,
he moved towards the chair with clenched fists upon the plaintiff but he was
stopped.The defendant was held liable for assault.
Distinction between Assault and Battery
In assault, actual contact or infliction of force is not necessary though it is in a battery.
Generally assault precedes battery. Showing a clenched fist is an assault but actual
striking amounts to battery. Throwing water upon a person is an assault but as soon
as the water falls on him it becomes battery. I f the person is about to sit on a chair
and the chair is pulled, there is assault so long as he is in the process of falling on
the ground but as soon as his body touches the floor, it will be battery.
It is, however, not necessary that every battery should include assault. A blow
from behind, without the prior knowledge of the person hit, results in a battery
without being preceded by an assault. It may be noted that besides a civil action for
an assault and battery, the criminal proceedings may also be taken against the wrong-
doer. Assault is defined in the Indian Penal Code, Sec. 351; while battery is equivalent
to criminal force which is defined in Sec. 350, IPC.
[2] Trespass to Land
Trespass to land means "interference with the possession of land without justification."
To constitute the wrong of trespass neither force, nor unlawful intention, nor actual
damage is necessary. "Every invasion of a private property, be it even so minute, is
atrespass." "If the defendant places a part of his foot in the plaintiffs land unlawfully,
it is in law as much a trespass as if he had walked half a mile on it" [Ellis v Loftus
Iron Co. (1874) LR 10 CP 10]. Trespass may be committed (1) by entering upon the
land of plaintiff, or (2) by remaining there, or (3) by doing an act affecting the sole
possession of the plaintiff, in each case without justification.
Trespass could be committed either by a person himself or doing the same
through some material object e.g. throwing of stones on another person's land, driving
nails into the wall, allowing the diffusion of gas or invisible fumes, leaving debris
upon the roof, allowing cattle to stray on another person's land. It is, however, no
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trespass when there is no interference with the possession and the defendant has been
merely deprived of certain facilities like gas and electricity.
A man is not liable for trespass committed involuntarily (e.g. when he is film._
upon the land by someone else), but he is liable if the entry is intentional, even tbnju,
made under a mistake, e.g. if in moving in his own land, a man inadvertently allows'
his blade to cut through into his neighbour's field, he is guilty of a trespass. An entry
upon another's land constitutes trespass to land whether or not the entrant knows that
he is trespassing [ J o l * v Willmett & Co. (1971)1 A l l ER 478]. I f the defendant
consciously enters upon a land believing it to be his own but which turns out to be
of the plaintiff, he is liable for trespass. The defendant may successfully plead inevitable
accident in his defence. Trespass in civil law differs from that in criminal law on this
point. According to Sec. 441, IPC the offence of criminal trespass consists in entering
or remaining on the land of another person with an intent to commit an offence or
intimidate, insult or annoy any person in possession of such property.
Trespass i s a wrong against possession rather t h a n ownership.
Therefore, a person in actual possession can bring an action even though, against the
true owner, his possession was wrongful. An owner of land who neither has possession
nor any immediate right to possess it, cannot bring an action for trespass.
Trespass ab initio
When a person enters certain premises under the authority of some law and after
having entered there abuses that authority by committing some wrongful act there, he
will be considered to be a trespasser ab initio to that property. It is necessary that the
person to be made liable as trespasser ab initio must do some positive wrongful act
(misfeasance) rather than a mere omission to do his duty (non-feasance). Thus, refusing
to pay for the refreshment in an inn does not make the visitor a trespasser ab initio
asnon-payment is a mere act of non-feasance which is not enough for a trespass ab
initio [Six Carpenter r case (1610) 8 Co. Rep. 146a].
Defences to Trespass
Any justifiable entry cr interference will negative liability for trespass. Justification
by law, private defence, inevitable accident, necessity and parental authority, etc. are
well recognised lawful defences for trespass. It may be noted that every continuance
of trespass is a 'fresh' trespass, in respect of which a new cause of action arises from
day to day as long as the trespass continues.
Remedies for Trespass
(i) Re-entry - The person entitled to possession can enter or re-enter the
premises in a peaceable manner.
(Ii) Action for ejectment - A person in lawful possession when dispossessed
of certain immovable property without due course of law, can recover
back the property by Sling a suit within 6 months of his dispossession.
(iii) Action for mense profits - Apart from the right of recovery of land by
getting the trespasser ejected a person who was wrongly dispossessed of
his land may also claim compensation for the loss which he has suffered
r during the period of dispossession. Mense profits refers to the profits
taken by the defendant during the period of his occupancy.
40
Law of Torts 2 1 3
(iv) Distress damage feasant - This right authorises a person in possession
of land to seize the trespassing cattle or other chattels. He can detain
them until compensation has been paid to him for the damage done.
[3] Trespass to Goods
Trespass to goods is wrongful direct physical interference with the possession of
them, viz throwing stones on car, shooting birds, beating animals, removing or injuring
or destroying goods, infecting the animals with disease or chasing animals to make
them run away from its owner's possession. The plaintiff must at the time of trespass
have the present possession of goods, either actual or constructive (e.g. an agent, a
bailee), or a legal right to the immediate possession (the proof of title to the goods
not required).
The wrong may be committed intentionally, negligently, or even by a honest
mistake. In Kirk v Gregory (1876)1 Ex D 55, on A's death his sister-in-law removed
some jewellery from the room where his dead body was lying, to another room under
areasonable but mistaken belief that the same was necessary for its safety. The
jewellery got stolen. A's sister-in-law was held liable for the trespass of jewellery.
Detinue
Detention is the adverse withholding of the goods of another. Detinue is an action
under which the plaintiff (lawfully entitled to possession) can recover the goods from
the defendant when the same are being wrongfully detained by the latter. The injury
complained of is not the taking, not the misuse and appropriation of the goods, but
only the detention. Where the defendant having taken a cycle on hire from the plaintiff
failed to return the same, he was held liable to pay the plaintiff the estimated value of the
cycle i.e. Rs.300, under an action for detinue.
If the original possession is lawful but subsequently the goods are wrongfully
detained, an action for detinue can be brought. Thus, if a bailee refuses to deliver the
goods after the bailment is determined he is liable in detinue. It may be noted that
trespass de bonis asportatis, i.e. wrongful taking of goods is wrongful ab initio, whilst
in detinue possession is acquired rightfully but detention of the goods is wrongful.
A lien on the goods by the defendant is a good answer (justification). It may
be noted that when the goods are returned to the plaintiff in a damaged condition, the
remedy of detinue is of no help to the plaintiff. Detinue stands abolished in England
by the Torts (Interference with Goods) Act,1977 which however allows for conversion
remedies that were available under common law for detinue. There is no corresponding
Act in India. Sections 7 and 8 of the Specific Relief Act, 1963 provide for the
recovery of specific movable property at the suit of a person entitled to immediate
possession generally when the defendant is an agent or a trustee for the plaintiff.
Conversion
Conversion (also called `Troyer') consists in wilfully and without any justification
dealing with goods in such a manner that another person, who is entitled to immediate
use and possession of the same, is deprived of them. It is dealing with the goods in
a manner which is inconsistent with the right of the owner. Keeping and refusing to
deliver the plaintiff's goods, putting them to one's own use or consuming them,
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214 L a w Guido fix Competitive ecominations
destroyingthem or damaging them in a way that they lose their identity, etc., all
amount to conversion.
InRichanisonv Atkinson (1723)1 Sum 576, the defendant drew out somevvioe out
oftheplaintiff'scaskandmixed water with the remainder to make good the deficie„,
liewasheld liable for theconversion of the whole cask as he had converted parr of.4
contentsbytakingthemaway and the remaining part by destroying their identity,
Apersondealing with the goods of another person in a wrongful way does
athisown peril and it is no defence that he honestly believed that he has a right to
dealwith thegoods or he had no knowledge of the owner's right in them. According
toLord Porter, "Conversionconsists in an act intentionally done inconsistent with the
owner's right, thoughthe doer may not know of, or intend to challenge, the peopen)
orpossession of the true owner."
"If I snatchyour hat from your head and throw it at any other person that is
trespassto your hat, but it is not conversion, for I am not questioning your title to a
But if I take it from you with intent to steal it, that is conversion as well as trespass',
(Winfield). However, a mere taking unaccompanied by an intention to exercise
permanent or temporary dominion may be a trespass, but is no conversion [Fouldes
v *Wong* (1841)8 M & W 501.
A wrongful sale of goods is conversion. The owner may also recover from the
purchaserbecausethe general rule protects interest of the owner as against the buyer,
If awarehousemanmisdeliversgoodseven by mistake he will be liable for conversion
[Devereaux v Barclay (1819)2 B & Ald 7021. The payee of acrossedcheque especially
endorsed it to the plaintiffs, a stranger who having obtained possession of the cheque
endorsed it in the favour of himselfandpresented it at the defendants' bank and thus
got it encashed, it washeld that the defendants were liable to the plaintiffs in an action
forconversion for the amount of the cheque.
The law, however, excuses certain acts, and if they were done in bona fide
ignorance of the plaintiff's title there may be no conversion. The finder of goods is
justified in taking steps for their protection and safe custody till he finds the true
owner. For an action for conversion it is also necessary that the plaintiff must've a
right to the immediatepossession of thegoods at the time of their conversion. Such
anactionmay be brought by a finder of goods, a bailee or pledgee of the goods,an '
auctioneer, a person in possessionunder a hiring agreement, or master of a ship. If
the plaintiff cannotprove his right of possession, an action for conversion will fail.
Thefinder ofgoodsis a `person in possession' (unless he is a trespasser). Thus,
inArmory v Delamirie (1721)1 Str 505, the chimney sweeper's boy, who after finding
ajewel had given it to a jeweller to be valued, was held entitled to recover its full
valuefrom the jeweller on his refusing to return the same.
Distinction between Trespass and Conversion
(I) Trespass is essentially a wrong to the actual possessor and therefore
cannot be committed by a person in possession. Conversion, on the
otherhand, is a wrong to the person entitled to immediate possession.
(2) To damage or meddle with the chattel of another, but without intending
toexercise an adversepossession over it, is a trespass. In an action for
41
Lawof Torts 2 1 5
conversion, the defendant's intended act must amount to denial to the
plaintiff's right /title to the goods to which he is lawfully entitled. Thus,
removing the goods from one place to nother may be trespass but it is
not conversion.
(3) The gist of the action, in trespass is the force and direct injury inflicted;
in conversion, it is the deprivation of the goods or thcir use. If a person
snatches my gold ring with a view to steal it, the act amounts to both
trespass and conversion. But if a person borrows my ring for his use but
later on sells it he will be liable for conversion only.
Distinction between Detinue and Conversion
Dentine is distinct from conversion in that the latter is never available where there is
mere detention without any wrong to the plaintiff's title, as conversion is essentially a
wrong to one's ownership of goods and involves misuse and appropriation of goods. It
may be noted that under old English law, detinue had a great disadvantage in that a
defendant under that action can defeat the plaintiff's claim by getting a number of
compurgators to swear in his favour although in fact they knew nothing of the facts of
thecase. No wonder, that in course of time, honest sufferers when faced with such a
risk gave up this remedy and began to favour the more effective remedy of conversion.
10. MALICIOUS PROSECUTION
Malicious prosecution consists in instituting unsuccessful criminal, or bankruptcy, or
liquidation proceedings, maliciously and without reasonable and probable cause. When
such prosecution causes actual damage to the party prosecuted, it is a tort for which
he can bring an action.
This tort balances two competing principles, namely the freedom that every
person should have in bringing criminals to justice and the need for restraining false
accusation against innocent persons. The foundation of the action lies in abuse of
the process of the court by wrongfully setting the law in motion and it is designed
to discourage the perversion of the machinery of justice for an improper purpose
[Mohd. Amin v Jogendra Kumar AIR 1947 PC 1081. In an action for malicious
prosecution the following essentials have got to be proved by the plaintiff:
( I ) Prosecution by the Defendant
It involve two elements, first that the plaintiff was prosecuted and secondly, that the
defendant was the prosecutor. An action not extending to any arrest or seizure of
property is not a good cause of action for malicious prosecution howsoever unfounded
or malicious it might be.
Prosecution means criminal proceedings against a person in a court of' law. A
prosecution is there when a criminal charge is made before a judicial officer or a
tribunal. In Nagendra Nath Rao v Basanta Des Bairagya, ILR (1929)47 Cal 25, after
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214 L a w Guido fix Competitive ecominations
destroyingthem or damaging them in a way that they lose their identity, etc., all
amount to conversion.
InRichanisonv Atkinson (1723)1 Sum 576, the defendant drew out somevvioe out
oftheplaintiff'scaskandmixed water with the remainder to make good the deficie„,
liewasheld liable for theconversion of the whole cask as he had converted parr of.4
contentsbytakingthemaway and the remaining part by destroying their identity,
Apersondealing with the goods of another person in a wrongful way does
athisown peril and it is no defence that he honestly believed that he has a right to
dealwith thegoods or he had no knowledge of the owner's right in them. According
toLord Porter, "Conversionconsists in an act intentionally done inconsistent with the
owner's right, thoughthe doer may not know of, or intend to challenge, the peopen)
orpossession of the true owner."
"If I snatchyour hat from your head and throw it at any other person that is
trespassto your hat, but it is not conversion, for I am not questioning your title to a
But if I take it from you with intent to steal it, that is conversion as well as trespass',
(Winfield). However, a mere taking unaccompanied by an intention to exercise
permanent or temporary dominion may be a trespass, but is no conversion [Fouldes
v *Wong* (1841)8 M & W 501.
A wrongful sale of goods is conversion. The owner may also recover from the
purchaserbecausethe general rule protects interest of the owner as against the buyer,
If awarehousemanmisdeliversgoodseven by mistake he will be liable for conversion
[Devereaux v Barclay (1819)2 B & Ald 7021. The payee of acrossedcheque especially
endorsed it to the plaintiffs, a stranger who having obtained possession of the cheque
endorsed it in the favour of himselfandpresented it at the defendants' bank and thus
got it encashed, it washeld that the defendants were liable to the plaintiffs in an action
forconversion for the amount of the cheque.
The law, however, excuses certain acts, and if they were done in bona fide
ignorance of the plaintiff's title there may be no conversion. The finder of goods is
justified in taking steps for their protection and safe custody till he finds the true
owner. For an action for conversion it is also necessary that the plaintiff must've a
right to the immediatepossession of thegoods at the time of their conversion. Such
anactionmay be brought by a finder of goods, a bailee or pledgee of the goods,an '
auctioneer, a person in possessionunder a hiring agreement, or master of a ship. If
the plaintiff cannotprove his right of possession, an action for conversion will fail.
Thefinder ofgoodsis a `person in possession' (unless he is a trespasser). Thus,
inArmory v Delamirie (1721)1 Str 505, the chimney sweeper's boy, who after finding
ajewel had given it to a jeweller to be valued, was held entitled to recover its full
valuefrom the jeweller on his refusing to return the same.
Distinction between Trespass and Conversion
(I) Trespass is essentially a wrong to the actual possessor and therefore
cannot be committed by a person in possession. Conversion, on the
otherhand, is a wrong to the person entitled to immediate possession.
(2) To damage or meddle with the chattel of another, but without intending
toexercise an adversepossession over it, is a trespass. In an action for
42
Lawof Torts 2 1 5
conversion, the defendant's intended act must amount to denial to the
plaintiff's right /title to the goods to which he is lawfully entitled. Thus,
removing the goods from one place to nother may be trespass but it is
not conversion.
(3) The gist of the action, in trespass is the force and direct injury inflicted;
in conversion, it is the deprivation of the goods or thcir use. If a person
snatches my gold ring with a view to steal it, the act amounts to both
trespass and conversion. But if a person borrows my ring for his use but
later on sells it he will be liable for conversion only.
Distinction between Detinue and Conversion
Dentine is distinct from conversion in that the latter is never available where there is
mere detention without any wrong to the plaintiff's title, as conversion is essentially a
wrong to one's ownership of goods and involves misuse and appropriation of goods. It
may be noted that under old English law, detinue had a great disadvantage in that a
defendant under that action can defeat the plaintiff's claim by getting a number of
compurgators to swear in his favour although in fact they knew nothing of the facts of
thecase. No wonder, that in course of time, honest sufferers when faced with such a
risk gave up this remedy and began to favour the more effective remedy of conversion.
10. MALICIOUS PROSECUTION
Malicious prosecution consists in instituting unsuccessful criminal, or bankruptcy, or
liquidation proceedings, maliciously and without reasonable and probable cause. When
such prosecution causes actual damage to the party prosecuted, it is a tort for which
he can bring an action.
This tort balances two competing principles, namely the freedom that every
person should have in bringing criminals to justice and the need for restraining false
accusation against innocent persons. The foundation of the action lies in abuse of
the process of the court by wrongfully setting the law in motion and it is designed
to discourage the perversion of the machinery of justice for an improper purpose
[Mohd. Amin v Jogendra Kumar AIR 1947 PC 1081. In an action for malicious
prosecution the following essentials have got to be proved by the plaintiff:
( I ) Prosecution by the Defendant
It involve two elements, first that the plaintiff was prosecuted and secondly, that the
defendant was the prosecutor. An action not extending to any arrest or seizure of
property is not a good cause of action for malicious prosecution howsoever unfounded
or malicious it might be.
Prosecution means criminal proceedings against a person in a court of' law. A
prosecution is there when a criminal charge is made before a judicial officer or a
tribunal. In Nagendra Nath Rao v Basanta Des Bairagya, ILR (1929)47 Cal 25, after
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Guide for Competitive Examinations
a theft had been committed in the defendant's house he informed the police that
suspected the plaintiff for the same. The plaintiff was arrested by the police b h e
ut
subsequently discharged by the magistrate. In a suit for malicious prosecution
it
held that it was not maintainable as there was no prosecution at all because in
police proceedings are not the same thing as prosecution. e r e
Prosecution should be made by the defendant. A 'prosecutor' is a person who
is actively instrumental in putting the law in force for prosecuting another. If /
tell
apoliceman that I have had a particular thing stolen from me and that it was seen •in
X's possession and the policeman without any further instructions on my part makes
inquiries and arrests, it is not I who have instituted the prosecution. I certainly set the
stone rolling but it was a stone of suspicion only. In order that a private person can
be termed as 'prosecutor' he must've done something more than merely lodging the
complaint with the police, he must've been actively instrumental in the proceedings
and must've made his best efforts (e.g. procures false evidence) to see that the piainna
is convicted for the offence.
An investigating officer is nut liable unless he was a party to the falsity of the
case. A pathologist preparing a postmortem report or a person appearing merely as
awitness cannot be held to be a prosecutor. A malicious reporter to the police for
getting a prosecution launched on the basis of his evidence is within the catch of the
principle [Martin v Watson (1995)3 All ER 559(HL)].
(2) Absence of Reasonable and Probable Cause
The plaintiff has also to prove that the defendant prosecuted him without reasonable
and probable cause. The defendant will be deemed to have made reasonable and
probable cause when - (a) he took care to be informed of the facts, (b) he honestly
believed his allegation to be true, and (c) the facts were such as to constitute a prim
facie case. The prosecutor's belief should be based on due enquiry.
Reasonable and probable cause means that there are sufficient grounds far
thinking that the accused was probably guilty but not that the prosecutor necessarily
believed in the probability of conviction. "Probable cause" is not the same thing as
"sufficient cause." The prosecutor should honestly believe in the story on which he
acts and in believing in the story he must act like a reasonable prudent man. The test,
therefore, is both subjective and objective [Corea v Peiris (1909) AC 549].
Theabsence of reasonable and probable cause should not be presumed from the
dismissal of aprosecution or acquittal of the accused. In Abrath v North Eastern Rly.
(1833) 11 QBD 440, one M recovered compensation from the defendant company for
personal injuries in a railway collision. Subsequently, the railway company got the
information that M's injuries had been artificially created by Dr. Abrath (M's surgeon).
The directors of the railway company made enquiries and obtained legal advice which
suggested that Dr. Abrath should be prosecuted. Dr. Abrath was accordingly sued, but
wasacquitted. He brought an action for malicious prosecution. The court found that
the railway company had taken reasonable care to inform itself of the true facts and
they honestly believed in their allegations and, therefore they were held not liable.
43
Law of Torts 2 1 7
(3) Malice
It is also for the plaintiff to prove that the defendant acted maliciously in prosecuting
hint However, if a prosecutor honestly thinks that the accused has been guilty of a
criminal offence he cannot be initiator of a malicious prosecution [Braj Sunder Deb
v Bamder Das AIR 1944 PC 1]. The malice to be established is not 'malice in law'
such as may be assumed from a wrongful act, done intentionally, without just cause
or excuse, but 'malice in fact' (males animus) - indicating that the party was actuated
either by spite or t o w a r d s an individual. In England whether there was malice
in the defendant is a question of fact for the jury. In India it is a question of law.
Absence of reasonable and probable cause and existence of malice have to be
P l y proved. From a want of reasonable and probable cause a court may infer
malice,se
l°lebut not e contra. However, the absence of reasonable and probable cause is
not per se evidence of malice. Conversely, the most express malice will not give a
cause of action if reasonable and probable cause existed.
(4) Termination o f Proceedings in Favour of Plaintiff
It is also essential that the prosecution terminate in favour of the plaintiff. I f the
plaintiff has been convicted by the court he cannot bring an action for malicious
prosecution even though he can prove his innocence and also that the accusation was
malicious and unfounded. The proceedings terminate in favour of the plaintiff if he
has been acquitted on technical grounds, conviction has been quashed, or the
prosecution has been discontinued or the accused is discharged. Even if the plaintiff
is convicted by the trial court but the conviction is set aside in appeal, the plaintiff
can sue for malicious prosecution.
When the plaintiff is acquitted of the offence for which he is prosecuted but is
convicted of a lesser offence, he may still sue for malicious prosecution of the graver
offence of which he is acquitted. No action can be brought when prosecution or the
proceedings are still pending. In an action for malicious prosecution, the cause of
action arises, not on the date of institution of the proceeding complained of, but on
the date when the proceeding terminates in favour of the plaintiff.
(5) Damage t o the Plaintiff
It has also to be proved that the plaintiff suffered damage as a consequence of the
prosecution complained of. Though the prosecution ends in acquittal, the plaintiff
may have suffered damage to his person (deprived of his liberty and mental stress),
prdperty or reputation by it for which he can claim compensation. Malicious prosecution
is one of the torts in which aggravated damages are permissible.
Distinction between False Imprisonment and Malicious Prosecution
False imprisonment is wrongfully restraining the personal liberty of the
plaintiff; malicious prosecution is wrongfully setting the criminal law in
motion.
(2) I n false imprisonment the personal liberty of the plaintiff may have been
wrongfully restrained by a private individual or setting a ministerial
officer in motion. While in malicious prosecution it is the judicial officer
who is set in motion.
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LAW OF TORTS
NATURE OF A TORT
A N D T O R T IO U S L I A B I L I T Y

In Jayalakshmi Salt Works Pvt. Ltd. v State o f G ujarat (1994) 4 SCC 1, the apex
court observed: 'Tort' dictionarily means "breach o f duty' leading to damage". The same
meaning attaches to it in law. In general, tort consists o f some act done without just cause
or excuse. "The law o f torts exists for the purpose o f preventing men from hurting one
another whether in respect o f their property, their presence, their reputations or anything
which is theirs” .
The basic ingredients o f torts are injury and damage due to failure to observe
duty. The liability in tort may be “ strict lia b ility", "absolute liability” or "special use
bringing with it increased dangers to others” (Rylunds v Fletcher) or "fault liability".
Such liability gives rise to action in torts. Since duty is the primary yardstick to
determine the tortious liability its ambit keeps on widening on the touchstone o f
fairness, practicality o f the situation, etc.
Truly speaking entire law o f torts is founded and structured on m orality that
no one has a right to injure or harm others intentionally or even innocently. Therefore,
it would be primitive to class strictly or close fin a lly the ever-expanding and growing
horizon o f tortious liability. Even for social development, orderly growth o f the
society and cultural refineness, the liberal approach to tortious lia b ility by courts is
more conducive.
In a welfare society construction o f dam or hundh for the sake o f community
is essential function and use o f land or accumulation o f water for the benefit o f
society cannot be non-natural user. But that cannot absolve the State from its duty
o f being responsible to its citizens for such violations as are actionable and result
in damage, loss or injury. What is fundamental is injury and not the manner in which
it has been caused. In the present case, the appellant suffered loss due to action o f
Government’s officers both at the stage o f construction o f dam and failure to taken
steps even at the last moment (viz. flood situation), it was liable to be compensated.

P u rp o s e o f t h e L a w o f T o rts is to A d ju s t D is tr ib u t io n Losses
In Rajkot Municipal Corpn. v Manjutben J a y a n tila l Nakum (1997) 9 SCC 552,
the apex court observed: “ The law o f tort prevents hurting one another. A ll torts
consist o f violation o f a right in the plaintiff. Tort law, therefore, is prim arily evolved
to compensate the injured by compelling the wrongdoer to pay for the damage done.
Since distributive losses are an inevitable by-product o f modern livin g in allocating
the risk, the law o f tort makes less and less allowance to punishment, admonition and
deterrence found in criminal law. The purpose o f the law o f tort is to adjust these
losses and offer compensation for injuries by one person as a result o f another’s
conduct.

T o rt a n d C o n tra c t a re D is tin g u is h a b le

In Rajkot Munic. Corpn. v Manjulben J. Nakum (1997) 9 SCC 552, the Supreme
Court observed: “ In tort, liability is primarily fixed by law while in contract, they are
fixed by the parties themselves. In tort, the duly is towards the persons generally
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while in contract it is towards specific person or persons. I f the claim depends upon
proof o f the contract, action does not lie in tort. I f the claim arises, from the relationship
between the parties, independent o f the contract, an action would lie in tort at the
election o f the p la in tiff, although he might alternatively have pleaded in contract.”

T o rt L ia b ili t y A r is in g o u t o f C o n tr a c t: E q u ity s te p s in
In M anju Bhatia v New Delhi Munic. Corpn. (1997) 6 SCC 370, a building contract
was entered into by a builder and the allottees. The allottees paid the amount and the
building was constructed. However, as the building was constructed by the builder in
violation o f municipal regulations, the Munioipal Corporation demolished the flats o f
top four floor. The allottee-owners o f the demolished flats, having not been informed
by the builder about the illegal construction and not given notice o f caveat emptor,
suffered loss and therefore they sued the builder for damages in tort. It was held by
the Supreme Court that the builder is liable to pay damages up to Rs. 60 lakhs including
the amount paid by the allottees.
The Supreme Court observed: “ In the tort liability arising out o f contract, equity
steps in and tort takes over and imposes liability upon the defendant for un-quantified
damages for the breach o f the duty owed by the defendant to the plain tiff. Equity
steps in and relieves the hardships o f the p la in tiff in a common law action for
damages and enjoins upon the defendant to make the damages suffered by the
p la in tiff on account o f the negligence in the case o f the duties o r breach o f the
obligation undertaken or failure to truthfully inform the warranty o f title and other
allied circumstances” .

M a lic e and T o r tio u s L ia b ilit y

In State o f A.P. v Goverdhantal P itti (AIR 2003 SC 1941), the State was a tenant
o f premises (an old school building) belonging to a private party. An eviction order
was passed against the State and it gave an undertaking to vacate. However, soon
thereafter, it initiated proceedings under the Land Acquisition A ct, 1894 fo r the
purpose o f acquisition o f premises. It was held that the Government's action cannot
be said to be vitiated by malice in law. The eviction order and undertaking to vacate
provided just, reasonable and proximate cause to resort to the acquisition proceedings.
There existed genuine public purpose o f fu lfillin g the educational needs o f the
children in that part o f the city.
The court observed: The legal meaning o f malice is “ ill w ill or spite towards a
party and any indirect o r improper motive in taking an action". This is sometimes
described as “ malice in fact” . “ Legal malice” or “ malice in law” means "something
done without lawful excuse.” In other words, " it is an act done wrongfully or w illfu lly
without reasonable or probable cause, and not necessarily an act done from ill feeling
and spite. It is a deliberate act in disregard o f the rights o f others” .
Where malice is attributed to the State, it can never be a case o f personal ill w ill
or spite on the part o f the State. I f at all it is malice in legal sense it can be described
as an act which is taken w ith an oblique or indirect object. The legal malice, therefore,
on the part o f the State as attributed to it should be understood to mean that the action
o f the State is not taken bona fide for the purpose o f the Land Acquisition A ct and
it has been taken only to frustrate the favourable decisions obtained by the owner o f
the property against the State in the eviction and writ proceedings.
In Balak Glass Emporium v United India Ins. Co. Ltd. (AIR 1993 Ker
342), the water from the upper storey o f the building under the defendant’s control
escaped to the lower floor, occupied by the plaintiff. There was evidence o f ill w ill
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between the p la in tiff and the defendant. It was found that not only the tap on the
upper floor was left fully open, but the outlet o f the tank was also closed. Thus, it
was clear that the said act was done by the defendant with the wrongful intention
or evil motive, and hence, the p la in tiff was held entitled to get damages for the same.

G E N E R A L D E F E N C E S : IN E V IT A B L E A C C ID E N T
In Assam State Coop. Ltd. v Smt. Anubha Sinha (AIR 2001 Gauh 18), the
defendant tenant requested the p la in tiff landlord to repair the defective electric wiring.
But the latter failed to do so. There occurred an accidental fire in the premises
probably due to short circuit o f electric connection. There was found to be no
negligence on the tenant’s part. In an action by the landlord to claim compensation
from the tenant, it was held that since it was a case o f inevitable accident, the tenant
was not liable.

N E G L IG E N C E
In Dr. At. Mayi Gowda v State. II (1996) C.P.J. 307 (Karnt), certain persons having
a joy-ride on an elephant in Mysore Dasara Exhibition Ground got seriously injured
when the elephant became panicky in the rush hours and ran forward.' It was found
that the elephant had participated in such rides and festivals for 13 years. Held that
there was no negligence on the part o f the opposite parties who had organized the
joy-ride. The reason o f the accident was unusual and unfortunate behaviour o f the
elephant, and therefore, the complaint was dismissed.
In New India Assurance Co. v D.R. Ramesh (A IR 2006 Karnt 169), it has
been held that in the case o f death o f p illio n rider due to misjudgment o f rider, the
tortuous liability arises though his crim inal prosecution is not warranted.
In N itin Walia v Union o f India (AIR 2001 Del 140), a child visiter o f Delhi
zoo aged 3 years put his hand inside the iron bars where a tigress was kept and his
hand was crushed by the tigress. It was held that the zoo authorities should've put
iron mesh on the rods and were liable in damages for the injury and the child was
not guilty o f any contributory' negligence.
In S. Dhanaveni v S tate o f Tamil Nadu (AIR 1997 Mad 257), the deceased
slipped into a pit filled with rainwater in the night. He caught hold o f a nearby electric
pole to avert a fall. Due to leakage o f electricity in the pole, he was electrocuted. The
respondent, who maintained the electric pole was considered negligent, and was held
liable for the death o f the deceased.
In Shaymal Baran Saha v State o f W.B. (AIR 1998 Cal. 203), the p la in tiff
(a young boy) was standing in a queue for purchasing ticket o f cricket match. A rrival
o f very large number o f people into the queue ended in a stampede. The boy trampled
under the feet o f panic-stricken crowd. The incident occurred due to failure o f Cricket
Association conducting the match and State Govt, to ensure safety/security o f
people in queue and to provide proper facilities such as tickets, drinking water and
medical relief. There was no evidence to show that Cricket Association demanded
increase in Police arrangement in view o f the large crowd. The defence by State
behind the shield o f delegated sovereign power was held to be untenable. The
defendants. Cricket Association and State Govt., thus, liable in negligence for breach
o f their lawful duties towards the plaintiff. The principle o f res ipsa loquitur clearly
applies here.
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Liability o f A d v o c a te s f o r N e g lig e n c e
Barristers and S olicitor Advocates t ill recently were immune under the English law
from being sued for professional negligence. But the House o f Lords in A rth u r J.S.
H all & Co. v Simons (2000) 3 A ll ER 673, took away this immunity on the ground
that neither public policy nor public interest now ju stifie d its continuance.
In India, a legal practitioner (an advocate, vakil or attorney o f any High Court,
a pleader, mukhlar or revenue agent) is liable for any negligence in the conduct o f
his professional duties. In At. Veerappa v Evelyn Squeria (AIR 1988 SC 506), the
Supreme Court held that an advocate who has been engaged to act is clearly liable
for negligence to his client.
In Raman Services Pvt. Ltd. v Subhash Kapoor (AIR 2001 SC 207), the
apex court held that i f an advocate fails to appear due to strike call given by the bar,
lie can be made liable for the costs which the litigant has to-pay for setting aside
an ex parte decree. The litigant who suffers entirely on account o f his advocate’s
non-appearance in court, has also the remedy to sue the advocate fo r damages.

M e d ic a l N e g lig e n c e
In State o f Haryana v Smt. Santra (A IR 2000 SC 1488), the question concerned
as to what damages are recoverable in case o f unwanted pregnancy resulting from
medical negligence in sterilization operation. The Supreme Court noticed that there
was no unanimity on this point in different countries but upheld the p la in tiff’s claim
both against the doctor and the Government for damages for rearing up the child up
to the age o f puberty. In holding so the court observed that “ the damages for the
birth o f an unwanted child may not be o f any value for those who are already liv in g
in affluent conditions but those who live below the poverty line o r who belong to
the labour class who earn their livelihood on daily basis by taking up the jo b o f an
ordinary labour, cannot be denied the claim fo r damages on account o f medical
negligence.”
In an English decision - McFarlane v Tayside H e a lth Board (1994) 4 A ll ER
961 (HL), it was however held that on principle it was not fair, ju s t or reasonable
to impose on the doctor or his employer the lia b ility for damages fo r the economic
loss o f bringing up a healthy child which must be held to fa ll outside the duty o f
care which was owed to the parents. In holding so the House o f Lords took into
account that in return fo r the love and expenses in caring, a healthy child also gives
pleasure and affection to the parents and the value attached to these benefits is
incalculable.
In a recent case, the Supreme Court o f India has sim ilarly held. In S ta te o f
Punjab v Shiv Ram (A IR 2005 SC 3280), it was held that a claim in to rt in case o f
medical negligence can be sustained only i f there is negligence on part o f the
surgeon perform ing the surgery. M erely because a woman having undergone
sterilization operation becomes pregnant and delivers a child, the operating surgeon
cannot be held liable for compensation. Failure due to natural causes w ould not
provide any ground for a claim. It is for the woman who has conceived the ch ild
to go or not to go for medical termination o f pregnancy. I f the couple opts for
bearing the child it ceases to be an unwanted child. Compensation fo r maintenance
and upbringing o f such a child cannot be claimed.
In Pinnamaneni Narasimha Rao v G. Jayaprakasu (A IR 1990 A.P. 207). the
plaintiff, a student aged 17 years, suffered irreparable damage in the brain due to
negligence o f the surgeon and the anesthetist. In this case, a proper diagnosis was
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not done, and i f the surgeon had not performed the operation, there was every
possibility o f the p la in tiff being saved from the brain damage. The anesthetist was
also negligent in so far as he failed to administer respiratory resuscitation by oxygenating
the patient with a mask,' bag. which is an act o f per se negligence in the circumstances.
The court observed: "A person engaged in some particular profession is
supposed to have the requisite knowledge and skill needed fo r the purpose and he
has a duty to exercise reasonable degree o f care in the conduct o f his duties. The
standard o f care needed in a particular case depends on the professional sk ill expected
from persons belonging to a particular class. A surgeon or anesthetist w ill be judged
by the standard o f an average practitioner o f class to which he belongs o r holds
him self out to belong.”
In Jacob Mathew v State o f Punjab (2005) 6 SCC I. on 15-2-1995. the
informant's father, late Jiwan Lai Sharma was admitted as a patient in a private ward
o f CMC Hospital. Ludhiana. On 22-2-1995 at about N p m . Jiwan Lai felt difficulty
in breathing. The complainant's elder brother. Vijay Sharma who was present in the
room contacted the duty nurse, who in her turn called some doctor to attend to the
patient. No doctor turned up for about 20 to 25 minutes. Then. Dr. Jacob Mathew,
the appellant and. Dr. Allen Joseph came to the room o f the patient. An oxygen
cylinder was bought and connected to the mouth o f the patient but the breathing
problem increased further. The patient tried to get up but the medical staff asked him
to remain in bed. The oxygen cylinder was found to be empty. There was no other
gas cylinder available in the room. Vijay Sharma went to the adjoining room and
brought a gas cylinder therefrom. However, there was no arrangement to make the
gas cylinder functional and in-between, 5 to 7 minutes were wasted. By this time,
another doctor came who declared that the patient was dead.
The appellant, when charged with medical negligence, placed reliance on a two-
Judge Bench decision o f this court in Suresh Gupta (Dr.) v Govt, o f NCT o f Delhi.
In Dr. Suresh Gupta case, the patient, a young man with no history o f any heart
ailment, was subjected to an operation performed by Dr. Suresh Gupta for nasal
deformity. The operation was neither complicated nor serious. The patient died. On
investigation, the cause o f death was found to be “ not introducing a cuffed
endo’tracheal tube o f proper size as to prevent asphyxiation o f blood from the wound
in the respiratory passage” . The Bench formed an opinion that this act attributed to
the doctor, even i f accepted to be true, could be described as an act o f negligence
as there was lack o f due care and precaution. But, the court categorically held: For
this act o f negligence he may be liable in tort but his carelessness o r want o f due
attention and skill cannot be described to be so reckless or grossly negligent as to
make him criminally liable.
The court observed: The term “ negligence” is used for the purpose o f fastening
the defendant with liability under the civil law and. at times, under the crim inal law.
However, a clear distinction exists between “ simple lack o f care” incurring c iv il
liability and “ very high degree o f negligence".
The court further observed: In the law o f negligence, professionals such as
lawyers, doctors, architects and other are included in the category o f persons professing
some special skill or skilled person generally. A lawyer does not tell his client that
the client shall win the case in all circumstances. A physician would not assure the
patient o f full recovery in every case. A surgeon cannot and does not guarantee that
the result o f surgery would invariably be beneficial, much less to the extent o f 100%
for the person operated on. The only assurance which such a professional can give
o f can be understood to have given by implication is that he is possessed o f the
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requisite skill in that branch o f profession which he is practising and w hile undertaking
the performance o f the task entrusted to him he would be exercising his s k ill w ith
reasonable competence. This is all what the person approaching the professional can
expect.
The court, in the present case, made the fo llo w in g conclusions:

( 1) Negligence is the breach o f a duty caused by omission to do something

which a reasonable man guided by those considerations which o rd in arily
regulate the conduct o f human affairs would do. o r doing something which
a prudent and reasonable man would not do. Negligence becomes actionable
on account o f in jury resulting from the act o r omission am ounting to
negligence attributable to the person sued. The essential components o f
negligence are three: "d u ty", “ breach” and "resulting damage” . -
(2) Negligence in the context o f the medical profession necessarily calls fo r a
treatment w ith a difference. To infer rashness or negligence on the part o f
a professional, in particular a doctor, additional considerations apply. A case
o f occupational negligence is different from one o f professional negligence.
A simple lack o f care, an error o f judgment o r an accident, is not p ro o f o f
negligence on the part o f a medical professional. So long as a doctor fo llo w s
a practice acceptable to the medical profession o f that day. he cannot be held
liable for negligence merely because a better alternative course o f method
o f treatment was also available or simply because a more skilled doctor
would not have chosen to fo llo w o r resort to that practice o r procedure
which the accused follow ed. When it comes to the fa ilu re o f ta k in g
precautions, what has to be seen is whether those precautions were taken
which the ordinary experience o f men has found to be sufficient: a failure
to use special or extraordinary precautions which m ight have prevented the
p a rticu la r happening cannot be the standard fo r ju d g in g the alleg ed
negligence. So also, the standard o f care, while assessing the practice as
adopted, is judged in the light o f knowledge available at the tim e o f the
incident, and not at the date o f trial. Similarly, when the charge o f negligence
arises out o f failure to use some particular equipment, the charge w ould fa il
i f the equipment was not generally available at that particular tim e (that is.
the time o f the incident) at which it is suggested it should have been used.
(3) A professional may be held liable for negligence on one o f the tw o findings:
either he was not possessed o f the requisite skill which he professed to have
possessed, or. he did not exercise, with reasonable competence in the given
case, the skill which he did possess. The standard to be applied fo r ju d g in g ,
whether the person charged has been negligent or not, would be that o f an
ordinary competent person exercising ordinary skill in that profession. It is
not possible for every professional to possess the highest level o f expertise
or skills in that branch which he practices. A highly skilled professional may
be possessed o f better qualities, but that cannot be made the basis o r the
yardstick fo rju d g in g the performance o f the professional proceeded against
on indictment o f negligence.
(4) The jurisprudential concept o f negligence differs in c iv il and crim in a l law.
What may be negligence in c iv il law may not necessarily be negligence in
criminal law. For negligence to amount to an offence, the element o f mens
rea must be shown to exist. For an act to amount to crim inal negligence, the
degree o f negligence should be much higher i.e. gross or o f a very high
degree. Negligence which is neither gross nor o f a higher degree may
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provide a ground for action in c iv il law but cannot form the basis f0r
prosecution.
(5) The word “ gross” has not been used in Sec. 304-A, IPC, yet it is settled that
in criminal law negligence or recklessness, to be so held, must be o f such
a high degree as to be "gross” . The expression “ rash or negligent act” as
occurring in Sec. 304-A has to be read as qualified by the word "grossly”
(6) To prosecute a medical professioital for negligence under crim inal law it must
be shown that the accused did something or failed to do something which
in the given facts and circumstances no medical professional in his ordinary
senses and prudence would have done or failed to do. The hazard taken by
the accused doctor should be o f such a nature that the injury which resulted
was most likely imminent.
(7) Res ipsa loquitur is only a rule o f evidence and operates in the domain of
civil law, especially in cases o f torts and helps in determining the onus o f
proof in actions relating to negligence. It cannot be pressed in service for
determining per se the liability for negligence within the domain o f criminal
law. Res ipsa loquitur has, i f at all, a limited application in trial on a charge
o f criminal negligence.
Decision-. It is not the case o f the complainant that the accused-appellant was not
a doctor qualified to treat the patient whom he agreed to treat. It is a case o f non­
availability o f oxygen cylinder either because o f the hospital having failed to keep
available a gas cylinder or because o f the gas cylinder being found empty. Then,
probably the hospital may be liable in civil law (or may not be - we express no opinion
thereon) but the accused-appellant cannot be proceeded against under Section 304-
A, IPC.]

L ia b ilit y o f P u b lic A u t h o r it y f o r N e g lig e n c e

In Municipal Corpn., Delhi v Sushila Devi (1999) 4 SCC 317, the p la in tiff passing
by the road died due to injury sustained by the fall o f a branch o f a tree. The
Corporation was sued. The court found the Corporation liable and observed that the
law is well settled that i f there is a tree standing on the defendant’s land which is
dried or dead and for that reason may fall or the defect is one which is either known
or should have been known to the defendant then the defendant is liable for any
injury' caused by the tree’s fall. The injury was caused due to non-action o f the
municipality. It is no defence to say that the Corporation had employed a competent
person to keep the premises in safe repairs. The premises must be maintained in a
safe state o f repair.

REM OTENESS OF DAM AG E

In Smith v Leech Brain h Co. Ltd. (1962) 2 QB 405 (“ Eggshell S kull" case), it
was laid down that i f the p la in tiff suffers personal injury from the wrongful act o f the
defendant, it is no answer to the claim that the p la in tiff would have suffered less
injury “ i f he had not unusually thin skull or an unusually weak heart” , A tort-feasor
takes his victim as he finds him.
In this case, a workman o f the defendants because o f their negligence suffered
a burn injury on his lower lip which promoted cancer at the site o f the burn resulting
in his death. But for the burn, the cancer might have never developed, though there
was a pre-malignant condition and there was likelihood that it would have done so
at some stage in his life. In an action by the widow o f the deceased workman, the
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defendants were held liable for his death on the principle that a tort-feasor must take
his victim as he finds him.
Smith’s case was followed in Robinson v The Post O ffice (1974) 2 A ll ER
737 (CA). In this case, it was held that it was foreseeable that i f a workman slipped
from a ladder made slippery because o f the negligence o f the employer, the workman
was likely to suffer in jury needing medical treatment in the form o f injection o f ATS.
Although it was not foreseeable that the injection given even w ithout any negligence
on the doctor’s part would cause encephalitis to the workman because he was allergic
to the second dose o f ATS yet the Post O ffice were held liable on the principle that
they were bound to take the p la in tiff as they found him.

NERVOUS SHOCK
In Hevican v Ruane (1991) 3 A ll ER 65 (QBD). the p la in tiff’s son was k ille d when
the school minibus in which he was travelling collided w ith a lorry as the result o f
the minibus drive r’s negligence. The p la in tiff was told shortly after the collision that
the minibus had been involved in a serious accident and was driven to a police
station where he was told that his son was dead. He then went to the mortuary, where
he saw his son’s body. He continued working for about another tw o months but
found he was unable to cope and was made redundant. He was diagnosed as
suffering from continuing reactive depression which prevented him from returning to
work. He brought an action against the minibus driver's estate claim ing damages fo r
his reactive depression.
The court held in favour o f the plaintiff. It observed that the defendant’s duty
must depend on reasonable foreseeability and must necessarily be adjudicated only
upon a case-by-case basis. What has to be reasonably foreseeable as a lik e ly
consequence o f bad driving is emotional trauma or nervous shock to near relatives
o f those likely to be killed or injured by negligent driving. A p la in tiff who sustains
a mental shock as a predictable result o f learning o f a loved one’s death o r in jury
and in consequence becomes ill either in the mind, as here, o r in the body, for example
by suffering a heart attack, is entitled to recover damages against a defendant whose
negligent act caused the death or injuiy.
In Ravenscroft v Rederiaktiebolaget Transatlantic (1991) 3 A ll ER 73
(QBD), again the issue was whether the liability for nervous shock extends to psychiatric
illness arising from being told o f the tragedy and thereafter failing to cope w ith its
consequences. It was held that the reasonable foreseeability o f the harm, the proxim ity
o f the relationship and the concepts o f reasonableness, justice and fairness compels
one to add to this category o f negligence that increment o f liability which may arise
when the psychiatric illness is caused by being told o f the disaster though not
witnessing it or its aftermath.
In Page v Smith [(1995) 2 A ll ER 736 (HL); (1996) 3 A ll ER 272 (CA)],
the p la in tiff who was involved in a motor accident due to negligence o f the defendant
did not suffer any physical injury. He though in a position o f primary victim , being
directly involved in the accident, remained unhurt. He. however, suffered 'm yalgic
encephalomyelitis', a psychiatric illness with which he had earlier suffered but which
was then in remission. This illness which the plaintiff' suffered as a result o f m otor
accident was not foreseeable in a person o f ordinary fortitude but as personal injury
o f physical harm which the p la in tiff did not suffer was foreseeable, the p la in tiff
succeeded in recovering damages for psychiatric illness suffered by him. The balance
o f medical opinion was to the effect that the accident could have m aterially contributed
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to the recrudescence o f p la in tiffs illness and the p la in tiff was awarded damages on
that basis.
The case also highlights the principle that the defendant’s w rongful act need
not have been the sole or principal cause o f the damage. The defendant would be
liable for the damage i f his wrongful act caused or m aterially contributed to it
notwithstanding that there were other factors for which he was not responsible which
had contributed to the damage.
In White v Chief Constable o f the South Yorkshire Police (1999) l A ll e r
1, a landmark case, the House o f Lords reviewed and restated the common law
regarding compensation for pure psychiatric injury or nervous shock. The court
noticed that this branch o f law “ is a patch work quilt o f distinctions which are difficult
to ju stify” . The court, however, declined to reform the law leaving this task to
Parliament.
According to White's case, mental suffering has to be divided into different
categories. Mental suffering following from foreseeable physical injury is routinely
compensated under the head ‘ pain and suffering’ while awarding compensation for
personal injury. Mental suffering, which is not a concomitant o f physical injury, is
further subdivided into two groups. The firs t group embraces that mental suffering
which does not amount to a recognizable psychiatric illness even i f it consists o f
extreme grief and the sufferer is debilitating. The second group consists o f that mental
suffering which amounts to a recognizable psychiatric illness. The difference between
the two groups is often difficult to draw and is a matter for expert psychiatric evidence.
Mental suffering not follow ing physical injury which does not amount to a
recognizable psychiatric illness is not redressable under the common law. W hile that
amounting to a recognizable psychiatric illness is redressable in a limited number o f
cases for which purpose the sufferers are divided into primary and secondary victims.
‘ Primary’ victims are those who are participants in the event o r are in tire actual
area o f danger o f receiving foreseeable personal injury but suffer only a recognizable
psychiatric illness and escape personal injury by chance or good fortune. They are
entitled to receive compensation for mental suffering even i f psychiatric illness was
not foreseeable.
A ‘secondary’ victim is one who is not a participant in the event or is not in the
area o f danger o f receiving foreseeable personal injury but yet suffer recognizable psychiatric
illness. He can he allowed damages i f the following conditions known as control mechanism
are satisfied: (i) The plaintiff must’ve close ties o f love and affection with the main victim.
Such ties may be presumed in some cases (e.g. spouses, parent and child) but must
otherwise be established by evidence, (ii) The plaintiff must’ ve been present at the
accident or its immediate aftermath (viz. an employee o f the tort-feasor, a rescuer, etc.),
(iii) The psychiatric injury must’ve been caused by direct perception o f the accident or
its immediate aftermath and not upon hearing about it from someone else.
The effect o f the decision in White's case is to fina lly replace the test o f
foreseeability o f psychiatric injury to a person o f normal fortitude which started from
Hay (or Bourhill) v Young, by the test o f foreseeability o f personal injury in case o f
primary victims and by the control mechanisms mentioned above in case o f secondary
victims. These tests which are reaffirmed in this case have their origin in Alcock 's case
and Page v Smith. Policy considerations have played an important role in treating
pure psychiatric injury' different from personal injury and in limiting the area within
which compensation can be claimed for the former [Rantanlal & D hirajlal, The Lem'
o f Torts, 24lh ed.. pp. 200-201).
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D E F A M A T IO N
In S .N .M . Abdi v P ra fu lla K. M ohanta (AIR 2002 G auh 75), it was held that it
was not necessary that the defamatory statement show a tendency o f im putation to
prejudice the p la in tiff in the eyes o f everyone in the community or all o f his associates.
It is suffice to establish that the published material tends to lower him in the eyes
o f substantial, respectable group, even though they are m inority o f the total com m unity
or o f the p la in tiff’s associates.
In the present case, an article published in the Illustrated Weekly o f India
(dated 8-9-1990) made certain allegations o f misuse o f man and muscle power by the
deposed C h ief M in ister o f Assam. Prafulla K. Mohanta. The article was held to be
defamatory in nature and the p la in tiff was awarded damages amounting to Rs. 5,00,000.
In Reynolds v Times Newspaper Ltd. (1999) 4 A ll ER 609. the House o f
Lords did not accepted that political inform ation' should be developed as a new
category o f qualified privilege, whatever the circumstances. Such a development
according to the court, would not provide adequate protection fo r reputation w hich
was an integral part o f the dignity o f the individual and that it was unsound in
principle to distinguish political discussion from discussion o f other matters o f
serious public concern.
In M elepurath Sankunni Ezhuthassan v T h e k ittil C eopalankutty N a ir (1986)
1 SCC 118. the question was whether in a defamation action the rig ht to sue survives
i f the p la in tiff dies. The court observed that under the Common Law. a cause o f action
for defamation abates on the death o f a person suing. Sec. 306, Indian Succession
Act, 1925 and Rules I and 11 o f Order X X II. C.P.C. make it clear that a cause o f action
for defamation does not survive the death o f the appellant.
I f a suit fo r defamation is decreed in favour o f the p la in tiff and the p la in tiff dies
pending an appeal against the decree, the suit w ill nut abate but i f the su it is
dismissed and the p la in tiff dies pending an appeal filed by him, the appeal w ill abate.
Because in the former case, the cause o f action has merged in the decree and the
decretal debt forms part o f the plain tiff's estate devolving on his death on his heirs,
executors or administrators.

V I C A R IO U S L I A B I L I T Y

M a s te r a n d S e rv a n t
In R. 5. R. T. C. v K. N. Kothari (AIR 1997 SC 3444), the apex court held that the
transfer o f effective control over a servant would make the transferee o f the vehicle liable
for vicarious liability. In this case, the RSRTC hired a bus and a driver for running a bus
on a specified route. The Corporation also engaged a conductor, who managed the bus,
collected fare tiom passengers and also exercised control over the driver. Held that for
an accident caused by the driver, the hirer (RSRTC) was vicariously liable, notwithstanding
the fact that the driver continued to be on the pay roll o f the original owner.

D o c tr in e o f S o v e re ig n Im m u n ity
Although the decision o f the Supreme Court in Kasturi L a is case is yet to be
overruled, subsequent decisions o f the court have greatly undennined its authority
and attenuated the sphere o f sovereign immunity . In Common Cause, A R e g iste re d
Society v UOI (AIR 1999 SC 2979), the court observed that "the doctrine o f
sovereign immunity has no relevance in the present day context. Much o f K a s liiriL il's
efficacy as a binding precedent has been eroded".
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In A.H. K h o d w v State o f Maharashtra, 1996 ACJ 505 (SC), the doctor

o f a Government hospital, while performing sterilization operation o f a lady patient,
left a mop (towel) inside her abdomen. The patient developed peritonitis resulting jn
her death. The Supreme Court held that running a hospital was a “ non-sovereign"
function and the State was vicariously liable for the same.
In State o f Assam v Md. Nizamuddin Ahmed (AIR 1999 Gauh 62), the plaintiff
was carrying on business in sale o f seeds o f various agricultural products without a
licence. The police seized the seeds from the p lain tiffs shop. Due to negligence and lack
o f storage facilities, the seeds got damaged in the police custody. The p la in tiff claimed
compensation from the State. I leld that the seizure o f the seeds was in the exercise o f
fsovereign” power. Thus, the plaintiff was not entitled to claim any damages for the same.
In State o f Gujarat v Govindbhai (AIR 1999 G uj 316), the Gujarat High
Court held that the doctrine o f sovereign immunity is subject to fundamental right
to life and personal liberty contained in Art. 21 o f the Constitution. In this case, the
p la in tiff was wrongfully seriously wounded by a gunshot fired by police constable.
The said injury resulted in the amputation o f the p la in tiffs right leg. That was held
to be violation o f fundamental right to life o f the victim . The State Government was
held to be vicariously liable.
In S ta te o f A.P v Challa Ramakrishna Reddy (AIR 2000 SC 2083), a
prisoner in ja il as under-trial died as a bomb was throw n by some miscreants in
the cell where he was lodged. It was found that the ja il authorities were negligent
in properly guarding the ja il inspite o f warning that some miscreants were like ly
to make an attempt on the life o f the prisoner. On these facts the doctrine o f
sovereign im m unity was held to have no application as this was a case o f a
violation o f the fundamental right to life under A rt. 21 o f the C onstitution.
In Krishan Kaushik v Union o f India (A IR 2005 Del 276), it was held that a
misfeasance by postal employee is vicarious lia b ility o f the Post O ffice.
In P. Gangadharan Pitlai v State o f Kerala (AIR 1996 Ker 71), the petitioner’s
hotel was ransacked in a mob attack. The police authorities had sufficient warning
o f the likelihood o f riots and consequent loss and damage by rioters, as in the present
case. The State was held liable for having failed to render protection to the petitioner’s
hotel, because this resulted in the infringement o f the petitioner’s right to carry on
business and trade, as contained in Art, I9 (l)(g ) o f the Constitution. The State was
directed to pay compensation to the petitioner.
In Chairman, Railway Board v Chandrima Das (AIR 2000 SC 988), a Bangladeshi
woman was gang raped by railway employees in Yairi Niwas, a railway building, at
the Howarlt Railway Station. The Central Government was held liable to pay damages
to the person wronged by the Railway employees. It was contended by the appellants
that the liability under the law o f torts would arise only when the act complained o f
was performed in the course o f official duty and since ‘ rape’ cannot be said to be
an official act. the Central government would not be liable vicariously.
The court rejecting this contention observed: “ The theory o f sovereign power
which was propounded in Kasluri Lai case has yielded to new theories and is no
longer available in a welfare State. The functions o f the State not only relate to the
defence o f the country' or the administration o f justice, but they extend to many other
spheres as. for example, education, commercial, social, economic, political and even
marital. These activities cannot be said to be related to sovereign power.”
It held. Running o f the railway s is a commercial activity. The employees ol <I,L
Union o f India who are deputed to run the Railways and to manage the establishmen.
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Recent Cases on Contract. Torts & Indian Penal Code 523

including the railw ay stalions and Ihc Yatri Ntwas. arc essential components o f the
government machinery which carries on the commercial activity. I f any o f such
employees commits an act o f tort, the Union Government, o f which they are the
employees, can be held vicariously liable in damages to the person wronged by these
employees. 1 he employees utilized their o ffic ia l position and got a room in the Yatri
Ninas booked in their own name where the act complained o f was com m itted.

S T R IC T A N D A B S O L U T E L IA B I L I T Y '
In Kusuma Begum (S m t.) v The New India Assurance Co. L td . (AIR 2001 SC
485). the apex court extended the strict lia b ility rule laid down in Rvlands v Fletcher.
It applied it to accidents arising out o f use o f m otor vehicles on the road, in ad dition
to no fault lia b ility statutorily provided in the M o to r Vehicles A ct, w ith o u t the
necessity o f establishing any negligence on the part o f the d rive r o f the m otor vehicle
causing the accident.
However, this decision is open to criticism . It is d iffic u lt to see how the
conditions for applicability o f the rule o f RylanJs are satisfied in case o f an accident
arising out o f the use o f a m otor vehicle on the road. Use o f a m otor vehicle on the
road cannot be said to be in modern times non-natural use o f either the vehicle o r
the road and a m otor vehicle causing the accident on the road cannot also be said
to have escaped from land/ premises in occupation o f the ow ner o f the m o to r vehicle.
In Indian Council fo r Enviro Legal Action v UOI (AIR 1996 SC 1446). the apex
court, approving the rule laid down in SJiriruin case (A IR 1987 SC 1086). reiterated that
once the activity carried on is hazardous o r inherently dangerous, the person carrying
on such activity is liable to make good the loss caused to any other person by his activity
irrespective o f the fact whether the reasonable care he took while carrying on his activity
is by tar the most appropriate one. It is the enterprise alone that has the resource to
discover and guard against hazards or dangers and not the person affected and the
practical difficulty (on the part o f the affected person) in establishing the absence o f
reasonable care or that the damage to him was foreseeable by the enterprise.
Thus, the respondents, in this case, were held absolutely liable to compensate
for the harm caused by them to villagers in the affected area, to the soil and to the
underground water and hence, are bound to take all necessary measures to remove
the sludge/ other pollutants lying in the affected area, and also liable to the cost o f
the remedial measures required to restore the ecology o f the affected area.

E le c t r i c it y is a H a z a rd o u s S u b s ta n c e
In U.P. State E le c tric ity Board v Dist. M agistrate. D ehradun (AIR 1998 A ll. 1),
the High Court observed that it is beyond doubt that electricity is ‘ hazardous’ since
it can injure or even k ill people i f not properly handled. Further, electricity is a
‘substance’ since electrons which constitute it. are material particles having specific
physico-chemical properties. Thus, electricity is a ‘ hazardous substance'.
In M.P. E le c tric ity Board v Shail Kumar (A IR 2002 SC 5 5 1). the apex court
applied the rule o f strict liability. The defence o f the dangerous being an ‘ act o f the
stranger' was not allowed because the same could have been foreseen. The deceased
was riding on his bicycle while returning from his factory' in night. A snapped live
electric w ire was lying on ihe road. There was rain and the road was p a rtia lly fille d
with water. The cyclist could not notice the electric w ire and as he came in contact
with the same, he died instantaneously due to electrocution. An action was brought
against the M.P. Electricity Board.
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The court held that the Board had statutory duty to supply electricity in the
area. I f the energy so transmitted causes injury or death o f a human being, who gets
unknowingly trapped into it. the electric supplier shall be liable for the same. I f the
electric wire was snapped the current should have been autom atically cut off.
Authorities manning such dangerous commodities have extra duty to chalk out
measures to prevent such mishaps. The defence that the snapping o f w ire was due
to the act o f the stranger who might have tried to pilfer the electricity was rejected.
Such act should have been foreseen by the Electricity Board and at any rate, the
consequences o f the stranger’s act should have been prevented by the Board. Merely
because the illegal act could be attributed to a stranger is not enough to absolve the
liability o f the Board regarding the live wire lying on the road.
The Privy Council has observed in Quebec Railway, Light Heat & Power
Co. Ltd. v Vandry 6 Others (AIR 1920 PC 181) that the company supplying
electricity is liable for the damage without pro of that they had been negligent. Even
the defence that the cables were disrupted on account o f a violent wind and high
tension current found its way through the low tension cable into the premises o f the
respondents was held to be nui a justifiable defence.

N U IS A N C E
In A.L. Ranjane v Ravindra Ishwardas Sethna (2003) 1 SCC 379, it was held that
a tea stall whose clients and miscellaneous articles belonging to stall owner took up
significant amount o f space outside stall, and which was a cause o f hindrance to free
flow o f traffic, was a nuisance on the road as well as a source o f nuisance to the
plain tiff as it abutted on the side o f the building owned by him.
In Kuldip Singh v Subhash Chander Jain (AIR 2000 SC 1410). it was held
that an injunction to prevent an apprehended or future nuisance w ill generally not
be granted unless the threat be imminent or likely to cause such damage as would
be irreparable once it is allowed to occur.
Another category o f ‘ future’ nuisance may be when the likely act o f the
defendant is inherently dangerous or injurious such as digging a ditch across a
highway or in the vicinity o f a children's school or opening a shop dealing with
highly inflammable pruducls in the midst o f a residential locality.