VANAJ VIDYAN

3/1/2019
● A tort is a civil wrong.
○ DIfferent from contract, crime and trust.
● Unliquidated damages.
● Judge made law.
● There needs to be breach of a legal right.
○ Bhim Singh vs State of Jammu and Kashmir.
○ Ashby vs White.
● Section 2(m) of the Limitation Act defines what is a tort.
○ "tort" means a civil wrong which is not exclusively the breach of a contract or the breach
of trust;

10/1/2019
EVOLUTION OF TORTS
In medieval India, the idea of justice was to punish the wrongdoer. Giving
compensation was not the scenario, partly because a welfare State did not exist,
and the basic function of the State was to protect the life and property of the
citizen.
The concept of tort came to India with the British. The law of torts in India is basically
the one of England, in addition to some local conditions. The British laws were
applied in the Indian societal concept.
This started with the establishment of British courts in India. First, there were mayor
courts in the three Presidency courts. Then the Supreme Court of Calcutta and
High Courts came up.
Generally, a written law is applied to the facts. But when law not applied, decisions
on the basis of ​justice, equity, and good conscience. ​The Privy council
interpreted the phrase, that the rule of English law will be applied, if found
applicable to Indian society and circumstances.
The Indian judiciary had to check whether the English precedent suited Indian
conditions or not. For instance​, ​section 20 of the Administration of Justice
Act, 1920​ ​provides that interim compensation or relief can be provided when a
tort case is pending, in England. No such written law in India, but this has been
applied in India as well.
However, this should not be interpreted to mean that Indian courts have to blindly
follow, since English courts are very flexible. With time, now Indian courts have
come up with their own doctrines, in cases of torts. For instance, in ​MC Mehta vs
Union of India​, the Supreme Court of India came up with the doctrine of
absolute liability. To quote from this judgement, Justice Bhagwati said, “This rule
of ​Rylands vs Fletcher ​came up in the 19th century, when this development of
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science and technology is not conducive of this rule….Different circumstances...

Law has to grow… The law has to be evolved to meet the situations of new
circumstances… The courts in India are not bound, and I propose… absolute
liability, not present in courts of England.” He said that the development of Indian
law in torts could not be held back by some foreign jurisprudence. Thus, they
came up with the concept of absolute liability.

Jayalakshmi Salt Works Pvt Ltd vs State of Gujarat​, 1994

In this case, Justice Shahi said that, “​Truly speaking the entire law of torts is founded
on structuren on morality, that no one has the right to harm intentionally or
innocently​. Therefore, it would be primitive to enclose… tortious liability.” He said
that the whole of the tort law is based on some sort of morality, and the courts
have to take a liberal approach.

The problem with tort is that it is not defined, and exists without a bare act. The
definition and constituents of tort are highly debated. However, certain basic
elements have been agreed upon by different scholars.

DEFINITIONS
● Salmond:​ ​It is a ​civil wrong​ for which the remedy is a ​common law action for
unliquidated damages​, and which is ​not exclusively the breach of a contract or
the breach of a trust, or other merely equitable obligations.
● Winfield: ​Tortious liability arises from the ​breach of a duty primarily fixed by law​.
This duty is ​towards persons​ generally and its ​breach is re-addressable by​ an
action for unliquidated damage​.
● In India, ​section 2(m) ​of the​ Limitation Act, 1963​: Tort means a civil wrong
which is not exclusively a breach of contract or breach of trust.

COMMON ELEMENTS
● Civil wrong;
● Civil wrong apart from law of contract and trust;
● Unliquidated damages;

LAW OF TORT AND LAW OF TORTS

Salmond ​gave the pigeon hole theory, and it was countered by ​Winfield.
Pigeons make a hole and ​fit ​inside.
This question was asked by Salmond. Salmond states that there has to be a tort,
and the particular act has to fit inside it, and only then would there be a remedy.
This is the pigeon hole theory.
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Winfield states that it is not necessary for an act to fit in the hole. If right is violated,
you will have a remedy, irrespective of whether it fits in some hole or concept.

Salmond posed a question- ​Does the law of tortS consist of​ fundamental general
principle that it is wrongful to cause harm to other persons in the absence
of some specific ground of justification or excuse​, or does it consist of ​a
number of specific rules prohibiting certain kind of harmful activity and
leaving all the residue outside the sphere of legal responsibility​?
The first part of the question states that the law of torts is based on some principle
that is my legal right is violated, compensation has to be provided. If my right is
violated, I will have a remedy.
Or, is it law of torts, where some specific wrongs or crimes committed will I have a
remedy?
Salmond prefers the second option, calling it law of torts. The law of torts consist of
some specific torts, and to prove I have faced a wrong, I have to prove that the
wrong committed falls in one of these categories. This theory is thus called the
pigeon hole theory by Salmond​. There are a number of holes in the wall. Each
hole stands for one tort. The wrong I have faced must fit inside one of those
holes.

The counter question- ​Whether it is a law of tort? A general principle? ​Winfield

supported this view, or the first part of the question. If legal right has been
violated, a legal wrong has been committed, I will have a remedy. It is not a
question whether this wrong has a name or meaning not. All that matters is that
violation of my legal right gives me a remedy under tort.

Salmond believed, that like crimes, the wrong should be specified. However,
Winfield was against this.
Thus, Salmond and Winfield are contrary to each other.

Salmond ⇒ Torts
Winfield ⇒ Tort

Jurists have favoured the Winfield theory. This is because Salmond requires
judiciary to not recognise the new wrongs coming up.
DIfferent cases have come up with time- Nuisance, strict liability, absolute liability.
Pollock​, in Law of Tort, backs the idea put up by Winfield. He says that torts cannot
be restricted.
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Dr. Jenks​ supports Salmond. He says that Salmond did not mean that judiciary can
not come up with new tort. He says that judiciary cannot come up with a new tort
altogether​. They can interpret the new wrongs with regards to an existing tort.
Jenks has tried to come up with a defence for Salmond.
However, even this defence is not as feasible, since strict and absolute liability are
concepts were not recognised before.

Winfield modified his stance after a period. He said that both he and Salmond were
right. From a broader perspective, Winfield is correct, while Salmond is correct in
a narrow perspective. He says that, “From a narrow and practical point of view,
the second theory will suffice, but from a broader outlook, the first is valid. If we
concentrate attention on the law of tort for a moment, entirely excluding the
development of law past and future, then it corresponds to the second theory. If
we take the wider view that the law of tort has grown for centuries and is still
growing, then the first theory seems to be at the back of it.” WInfield thus tried to
do away with the conflict, and accommodate the theories. He gave the example
of tree, to emphasise on the importance of perspective. While the tree could be
perceived to be inanimate by some owing to being immovable, it could be
perceived animate by someone on the ground that the tree was continuously
growing.

ESSENTIALS OF TORT
● When a plaintiff moves to court, he has to prove, either ​an act or omission​,
before anything else. Act is doing something or acting in a manner in which we
were not supposed to do or act under law, while omission refers to omitting a
duty of care or not performing a particular duty imposed upon us by law.

Municipal Corporation of Delhi vs Subhavanti

In this case, a clock tower in Delhi was supposed to be maintained by MCD. But the
clock tower was not maintained, and it fell leading to a person’s death. The court
held that there was omission on part of the MCD, and it was liable to
compensate.

Another important case is eating a poisonous fruit from a public park.

In both these cases, there is omission on part of the authority, and thus that authority
is liable to compensate.
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● Also, both the ​act and omission have to be recognised by law​. There cannot be a
case for moral or social obligation.
○ If I don't save a person who is drowning, I am not supposed to save him. If
I don't, a case shall not be brought against me.
● Legal damage​ is necessary. Monetary or pecuniary damage is not.
If I have a right but do not have a remedy, or if I have a right but I am unable to
enforce it, that particular right is not of any use to me. This is regarding the act
and omission.

GENERAL DEFENCES
There are certain defences recognised by law. If the defendant is able to prove any
of these defences, he would not be held responsible.
When sued, the defendant can escape a liability by taking any available defence.
While some defences are general, there are some defences specific to a tort.
The general defences, like Act of God, are applicable to every tort.
Sir Frederick Pollock ​in the 15th edition of ​Law of Tort​, states that, “The rule of
immunity which limits the rule of liability. There are various conditions which,
when present, will prevent an act from being wrongful, which, in their absence,
would be a wrong. Under such conditions, the act is said to be justified or
excused and when an act is said in general terms to be wrongful, it is assumed
that no such qualifying condition exists.” Pollock has said that if particular
conditions are present, then that wrongful act will not be punished. However, if
not present, then it would be punished.

VOLENTI NON FIT INJURIA

A person cannot complain of an injury when he has voluntarily agreed to suffer some
harm.​ If a person has waived off his particular right, he cannot enforce that right
at a later time.
I cannot bring a case of trespass against some person whom I have invited to my
house.
I cannot bring a defamation case if the publication is with my consent.
Also, volenti non fit injuria is a​ complete defence​.

The consent in this case can be ​expressed or implied​.

However, this defence is limited to the extent of the consent given. The extent here
refers to the limit of my consent to sustain the harm.
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For instance, a hockey player consents to sustain injuries during normal course of
fair play. However, if deliberate harm, he is entitled to bring up a suit.
Or, if I invite a person to my house and ask him to stay in the living room but he
comes to the bedroom, I am entitled to bring up a suit for trespass.

Hall vs Brooklands Auto Racing Club

The plaintiff was an audience who had gone to an auto racing. Two cars met with an
accident, and he sustained injuries. The owner of the race course took the
defence of volenti non fit injuria. The court held that in an auto racing, the
audience impliedly consents to injury.

Padmawati vs Dugga Naika

In this case, the driver of a jeep gave a lift to two persons. However, due a technical
fault in the jeep of which the driver was unaware, an accident happened. One of
the two people in the jeep died. A suit was brought against the owner of the jeep.
The owner took two defences- First, that it was an accident, and secondly, of
volenti non fit injuria. He contended that the people had voluntarily consented to
any injuries or accidents by taking the lift. The court held that the defence was
allowed and ​no compensation given​.
In volenti non fit injuria, the consent has to be free, and not from any compulsion or
fraud or misrepresentation of facts. And only that act should be done for which
the consent has been given.

R vs Williams
The accused was a music teacher, teaching music to a 16 year old girl. He had
intercourse with the girl on the pretext that he was doing a surgical act to improve
voice of the girl. The girl gave the consent under misperception and fraud. The
accused took the defence that he had taken the consent. The court held that the
consent was by fraud, which is not a free consent under law.

Also, there should not be any compulsion or undue influence.

Mere having knowledge does not amount to application of the defence. Having
knowledge and giving consent to suffer harm is required.
Dan vs Hamilton
In this case, a lady had the knowledge that the driver of the car is drunk, and she still
took the car instead of the bus. They met with an accident, and the driver died
while the lady sustained injuries. She brought a suit for compensation. The legal
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representatives of the driver took the defence of volenti non fit injuria. The court
ruled that the degree of intoxication of the driver was not that high, that taking the
lift would be giving consent to an accident. Thus, the defence of volenti non fit
injuria was not given in this case.
Justice Asquith​, in this regard, has said, “There may be cases in which the
drunkenness of the driver at the material time is so extreme and so glary that to
expect a lift from him is so like engaging in an obviously dangerous occupation,
intermeding with an unexploded bomb, or walking on the edge of an unfenced
cliff. It is not necessary to decide whether in such a case the maxim volenti non
fit injuria would apply. For in the present case, I find as a fact that driver’s degree
of intoxication fell short of this degree. I therefore conclude that the defence fails
and the claim succeeds.”
While the lady in this case knew the driver was drunk, the degree of intoxication
wasn’t high enough for her to know or consent that she would meet with an
accident.

The above case has been criticized, on the basis that while not giving the defence of
volenti non fit injuria, the contributory negligence has been ignored. It has been
argued that the judge should have taken contributory negligence to lower the
compensation. The judge, in his defence, has said that he had not taken it into
consideration since the defence did not bring that up or contend.

EXCEPTIONS TO VOLENTI NON FIT INJURIA

● RESCUE CASES

CLASSES MISSED

30/1/2019

PRIVATE DEFENCE
When seeing private defence, the following has to be kept in mind-
1. Use of force is allowed to protect oneself.
2. It should be reasonable.
3. It should be used in defence.
4. There should be imminent danger or threat.
a. Using that force after the threat is over does not come under private
defence.
The above is done to prevent misuse of this right.
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Bird v. Holbrook
The defendant had put up a spring gun in his garden without a notice. A trespasser
sustained injuries from the bullet for the injuries suffered. The court allowed
compensation in this case, even though the plaintiff was a trespasser. The court
held that in this case, the defendant had exceeded his right of protecting his
property.
It is possible that the compensation is lesser since the plaintiff was wrong,
however, the defence of private defence would not be allowed here.

Ramanuj Mudali v. M. Gagan

The defendant was a landowner who left live electric wire over land after 10 p.m. No
notice of that sort, and a trespasser suffered electric shock. Court held that the
defendant had exceeded his right of private defence.

Morris vs Nugent
THe defendant was passing by the plaintiff’s house. The plaintiff’s dog hit the
defendant. When the defendant turned back, the dog was running away, but the
defendant nonetheless shot the dog. The court held that compensation shall be
allowed, as there was no imminent danger when the dog was running away.

Curswell v. Sirl
The defendant shot the plaintiff’s dog when the dog was attacking some animals
belonging to the defendant. The defendant took the plea of private defence,
which was allowed by the court, as there was imminent threat and danger to the
animals. As for reasonable force, the court observed that there was no other
means than shooting the dog to save his animals, and that when he shot the dog,
the dog was actually attacking the animals. The onus of proof is on the
defendant.

The difference between both the above cases is the imminent threat and danger.

PLAINTIFF IS THE WRONGDOER

The law of contracts has a similar provision, which includes Ex Turpi Causa Non
Oritur actio, i.e., There can be no action for an immoral cause.
In tort, we see that merely because the plaintiff has done wrong, does not mean the
plaintiff cannot get compensation. While the amount he gets as damages may
vary, it does not completely overrule his right to get compensation.
For example, in ​Bird v. Holbrook,​ the trespasser got the remedy nonetheless.
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Pollock ​has said, “A plaintiff is not disabled from recovery by reason of being
himself a wrongdoer, unless some unlawful act or conduct on his own part is
connected with the harms suffered by him as part of the same transaction.
We have to see the connection between these two things, and what is the
determining factor.
However, if directly related, the plaintiff may not get any compensation.

Saunders v. Edward
The defendant sold his flat to the plaintiff, and there was misrepresentation on part
of the defendant that there would also be a terrace with the flat, at 45000 pounds.
After purchase of property, when it came to stamp duty, they lowered the
purchase price so as to pay lower stamp duty, showing 40,000 pounds. When it
came to the knowledge of the plaintiff that he did not actually get a terrace, the
defendant held that the plaintiff himself had done a wrongful act in order to pay a
lesser stamp duty, and thus there shall not be an action against him. The court
held that both the things are different, and the harm suffered is completely
different than the wrong he has done. Lowering of the price for lower stamp duty
does not have any determining link between getting the terrace. Thus, no
compensation was paid to the defendant. The court held, “The defendant’s own
moral wrong greatly outweighed that of the plaintiff. The illegal share in the
contract was wholly unconnected with the plaintiff’s cause of action in tort, and
the loss suffered by him as a result of fraudulent misrepresentation.”

6/2/2019
STATUTORY AUTHORITY AS A DEFENCE
Statutory authority. If an act is there for the larger interest.
However, this does not mean that if there is some statutory authority, it can act in a
negligent manner. That authority has to take all precautions, otherwise, can be
held liable. The damage which has been caused in these cases, shall not
● An act for public interest of lesser importance than act for private interest.
● Lesser private interest shall give way to larger public interest.

Waughen vs Valde Rail Corporation

The defendant had a railway company established under statutory authority. From
spark of t
hese engines, some wood on plaintiff’s land burnt. Plaintiff asked for compensation.
The court held that the railways was functioning as a statutory authority.
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Moreover, no negligence on part of the company. Hence, no relief given to the

plaintiff. While deciding, ​Chief Justice​ ​Cockburn ​said, “When the legislation has
sanctioned the use of a particular thing, and it is used for the purpose for which it
was authorised, the sanction of the legislature carries with it this consequence
that if damage results from the use of such thing, the party using it is not
responsible.

Hammersmith Rail Corporation v. Brand

Due to the train tracks nearby, the rates of the property considerably reduced, and
asked for compensation. A suit was brought, wherein the court held that no relief
shall be granted, since the damage was incidental to act of the State.

Manchester Corporation vs Farnworth

A plaintiff’s farm was reduced due to poisonous gases from a chimney of an
electrical power station of the defendant. The defendant took the plea that this
was established under section 32 of the Manchester ___ Act. The Court of
Appeal allowed the injunction and gave damages. The House of Lords, however
dismissed the appeal of the corporation, but changed the decision, giving a
period of one year to the corporation to take all reasonable precautions to stop
the gases from escaping. Till that period of one year, damages shall have to be
paid. If not after one year, the plant shall be shut down. This was done, as the
defendant was unable to prove that he had taken all reasonable precautions.
Lord Dunedin ​said, “When the Parliament has authorised a certain thing to be
made or done in a certain place, there can be no action for nuisance caused by
the making or doing of that thing, if the nuisance is the inevitable result of the
making or doing so authorised. The onus of proving that the result is inevitable is
on those who wish to escape liability for nuisance, but the criteria for inevitability
is not what is theoretically possible, but what is possible according to the state of
scientific knowledge at the time.” Thus, Lord Dunedin stated that when there is
an inevitable nuisance, there would no liability. However, the onus of proving that
the nuisance is inevitable is on the government authority causing nuisance. He
also stated that this criteria for inevitability shall be scientific knowledge. On the
same ground, was the one year time given.

Allen vs. Gulf Oil Refinery Ltd.,​ 1981

The defendant had an oil company, and the plaintiff brought a case for damage
suffered. Act of Gulf Oil, 1965, was the defence taken by the defendant. The
court held that this was an inevitable result that could not be avoided. Also, the
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oil refinery had taken all possible precautions. The House of Lords laid down six
principles in this case to check statutory authority, which are still followed-
1. The extent of the statutory authority and immunity depends on the construction of
the relevant statute.
2. Where Parliament, by express direction or by necessary implication, has
authorised the construction and use of an undertaking or work that carries with it
an authority to do what is authorised with immunity from any action based on
nuisance.
3. The undertaker must as a condition of obtaining immunity from action carry out
the work and conduct the operation without negligence, i.e., without reasonable
regard and care for the interest of other persons.
4. Immunity from action is withheld where terms of the statute are permissive only,
in which case, the powers conferred must be exercised in strict conformity with
private rights.
5. The absence of compensation clause from an act confirming power affords an
indication that the Act was not intended to authorise interference with private
rights. But this indication is not conclusive.
6. Immunity extends to any nuisance which is the inevitable result of doing the act
authorised by the Act.

The first and fourth parts clearly state that the intention of the legislature is necessary to
be found while interpreting the words, in order to find as to what extent is the legislation
allowing the immunity. The text of the statute thus gives authority subjectively.

NECESSITY AS A DEFENCE
When an act is necessary to be done for a greater good, and if any harm is done to
some other person while preventing that greater harm, no liability would lie. However,
the harm done should be in the course of preventing that greater harm.
For instance, when one house is demolished to save all other houses from fire, or if the
luggage being carried in the ship is thrown in order to save people.
There can be three classes of necessity-
1. PUBLIC NECESSITY
○ This is based upon the maxim- ​Salus populis suprema lex​, meaning that
the welfare of the people is the supreme law.
○ Maxim based on the idea that every person in the society gives an implied
consent that s/he is ready to suffer personal losses, for the larger interest
of the society.
○ This necessity should be existent, urgent, and overwhelming.
2. PRIVATE NECESSITY
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○ An individual or group of individuals, whose interests are involved.

○ Olga Tellis vs Bombay Municipal Corporation,​ 1985
■ Some people living on footpath, and the Mumbai Municipal
Corporation stated that these people had committed trespass. The
Supreme Court ruled ,“Necessity is a possible defence under the
law of torts, enabling a person to escape liability on the ground that
the act complained of are necessary to prevent greater damage to
himself. Here, as elsewhere in law of torts, a balance has to be
struck between competing set of values.”
■ Thus, the court gave the defence of necessity to prevent the
greater harm, as to where would they go.
■ However, there is an opposite case in the House of Lords, wherein
it was stated that homelessness is no defence.
○ London Borough of Southwark v. Williams,​ 1971
■ Lord Denning said, “If homelessness were once admitted as a
defence of trespass, no one’s house could be safe. So the court
must, for the sake of law and order, take a firm stand. They must
refuse to admit the plea of necessity to hunger and homeless, and
trust that their distress will be relieved by the charitable and the
good.”
○ Article 39 states that the State shall ensure that there is no concentration
of wealth.
○ Sodan Singh v. New Delhi Municipal Committee
■ The committee claimed that the newspapers hawkers trespassed
property when they collected at one place for collecting
newspapers. The court, taking the help of 19(1)(g), stated that
these hawkers could not be punished for what they were doing,
although regulations could be made.
○ Ram Prasad Yadav v. Chairman, Mumbai Port Trust
■ A slum developed on a land belonging to the trust. The defendant
went to the court for removal of the slum. The court took a humane
perspective stating that those living there for two years shall not be
removed from that place.
○ Cope v. Sharpe
■ The defendant entered the plaintiff’s land where there was fire, and
the adjoining land belonged to the defendant’s master. A case was
brought up for trespass. The court held that this was necessary to
stop the fire, for his master, and thus not liable for trespass, owing
to the defence of necessity.
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○ Carter v. Thomson
■ The defendant entered the premises of the plaintiff to try to stop the
fire. While he went there, the fire brigade was already there. A case
for trespass was brought. It was held that the defendant was liable,
since the fire brigade was already there and there was no
necessity, despite his good faith. Thus, the definition of necessity
could not be taken.
3. WHEN ASSISTANCE IS GIVEN TO THIRD PERSON WITHOUT HER/HIS
CONSENT
○ This is different from rescue. This may involve performing of an operation
on someone unconscious, for instance, or medical treatment of an
unsound person, or pushing a person in order to avoid him/her from
getting hit by a bus.

NEGLIGENCE
Negligence is basically lack of care on part of the defendant. Omission to perform
something, due to which wrong has been done.
There has to be, not moral, but legal duty, the non-performance of which leads to
damage to the plaintiff.
Negligence shall be considered as an independent tort, as there is a special
reference to mental intention in this tort, which is not required.
In the Gingerbeer case, ​Donoghue v. Stevenson​, the House of Lords said, that treat
negligence where there is duty to take care as a separate tort, and not simply as
an element in some more complex relationship, or in some specialised breach of
duty. ​Winfield ​defines negligence- “​Negligence as a tort is the breach of a legal
duty to take care which results in damages undesired by the defendant to the
plaintiff.​”
Negligence can be civil or criminal. ​Section 304-A ​of IPC talks about death by
negligence. The difference between the civil and criminal negligence was
explained in the case of ​Jacob Matthew v. State of Punjab,​ the Supreme Court
differentiated between civil and criminal. For showing as an offence, the element
of mens rea must exist. For an act to amount to criminal negligence, the degree
of negligence should be much higher, i.e., gross, or of a very high degree.
Negligence which is neither gross nor of a higher degree, may provide a ground
for action in civil law, but cannot form the basis of prosecution. Thus, we see, that
a mental element or mens rea, and a very high degree of negligence is required.
Also, if acquittal in a criminal case, it doesn't mean that the act wasn’t there, it
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simply means that the threshold wasn’t enough for criminal offence, and can be
tried by civil courts. The standard of proof required in civil cases is lesser than
the standard of proof required in criminal cases, and thus criminal negligence.

ESSENTIAL ELEMENTS TO CRIMINAL NEGLIGENCE

1. DUTY OF CARE TOWARDS PLAINTIFF
○ This duty of care doesn't mean religious or moral, but legal duty. Whether
this duty exists or not, is dependent upon circumstances of the case. The
Landlord-tenant duty, partnership duty, etc. have been made, but not in
several others, which can be laid down later.
○ Lord Atkin ​in Gingerbeer case, ​Donoghue v. Stevenson,​ said, “It is
remarkable how difficult it is, to find in the English authorities statements
of general application defining the relations between parties that give rise
to the duty. The courts are concerned with the actual relations which come
before them in actual litigation, and it is sufficient to say whether the duty
exists in those circumstances. The result is that the courts have been
engaged upon an elaborate classification of duties as they exist in respect
of properties, manufacturer-salesman-customer, landlord tenant stranger
and so on. In this way, it can be ascertained at any time whether a law
recognises a duty but only where the case can be referred to some
particular species which has been examined and classified.
○ Donoghue v. Stevenson
i. A person bought a gingerbeer containing a snail, and there was no
way of getting to know what was inside since the bottle was
opaque. She drunk that beer and suffered medical issues. The
person who manufactured was sued, and he took the plea that ​he
didn't owe any duty of care to the plaintiff, and the only contract
which they have is with the shopkeeper​, and not with the consumer.
The court held that compensation had to be paid, and that it is not
possible for the consumer to see what was inside. In addition, that
was directly for consumption and no way to know whether the
product is right or wrong. Also, there is no need for a contract when
sued under tort. Thus, both the defences were not allowed, and
compensation had to be paid.​ Lord Atkin ​said, “A manufacturer of
product which he sells in such a form as to show that he intend
them to reach the ultimate consumer in the form in which they left
him with no reasonable possibility of intermediate examination and
with the knowledge that the absence of reasonable care in the
preparation or putting up of the product will result in an injury to the
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consumer’s life or property, owes a duty to the consumer to take

that reasonable care.” Thus, Lord Atkin meant that when the
manufacturer is selling something where there is no possibility of
intermediate examination, the duty of care exists then.
○ The degree of duty depends upon the foreseeability of that injury. All
remote and far-fetched consequences would not hold the person liable,
and would be held liable only on what a reasonable and prudent man
would feel.
○ Glasgow Corporation v. Muir
i. In this case, the manager of the corporation allowed 30-40 persons
stuck in rain to use their premise for the time being. Two of these
people went for tea, and had huge container in which to take tea.
While taking tea in the corridor, they slipped, and the tea fell on
children and a lady. They brought a case against manager of the
corporation. The manager took the defence that no reasonable way
to forsee that if I allow them to stay in one place, then tea will fall.
The court allowed the defence, and no compensation was paid.
ii. Lord Macmillan ​defined what is a reasonable man and what
standard of care is expected. “​The standard of foresight of a
reasonable man, is in one sense, and impersonal test. It eliminates
the person equation, and is independent of the 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, but there is a sense in which the standard of care
of the reasonable man involves, in its application, a subjective
element. It is still left to the judge to decide, what in the
circumstances of a particular case, the reasonable man would have
had in contemplation and what accordingly the party thought to be
made liable ought to have foreseen. Here, there is a room for
diversity of views- what to one judge may seem far-fetched may
seem to another both natural and probable.”
○ Dr. M Gowda v. State of Karnataka
i. The plaintiff and five children went for an elephant ride, and the
elephant panicked due to crowd. The elephant threw them on the
ground, and the plaintiff sustained injuries. The doctor sued for
around ₹9 lakhs, and stated that the owner was negligent. In
defence, it was stated that not only was the elephant well trained, it
had taken part in various movies and VVIP functions, and had been
doing this for 13 years. The court held that since nothing happened
 VANAJ VIDYAN

since 13 years, no one would presume that something would

happen now. No compensation was awarded.
○ Rural Transport Service v. Bezlum Bibi
i. In an overloaded bus, the conductor and driver allowed the person
to sit on top of the bus. While on the highway, a person was stuck
in a branch of a tree and died. The mother of deceased brought up
a case for negligence, and the court held that there was negligence
on part of the driver and conductor.
○ Sushma Mitra vs Madhya Pradesh State Transport Corporation
i. The lady was sitting on a window seat, and her hand was hanging
outside the bus, while on the highway. A truck coming from
opposite side, did not collide, but her hand got injured. She
sustained injuries and sued the company for negligence on the bus
driver and truck driver. The court allowed compensation stating that
it is common knowledge that hand can get outside while in the
window seat. Thus, the passenger may have a head or hand out.
The court allowed compensation, on the basis that this is very
common knowledge, and the drivers shouldn't be negligent. It is the
duty of both the drivers to see and care whether the hand or head
is outside. The corporation was held liable to be paid.
○ Municipal Corporation of Delhi v. Subhawanti
i. There was a clocktower in Delhi that fell due to negligence of the
MCD. The life of the structure was 30-40 years, while it stood for 80
years. The court held MCD liable.
○ Fardon v. Harcourt Rivington
i. The defendant had parked his car on the roadside in a marketplace
with a dog inside. The dog jumped and smashed the glass panel
hitting and injuring the plaintiff, who brought a case. The court held
that this was a very remote possibility, and could not be made to
pay compensation for something so remote. The defendant was
thus not liable.
ii. Lord Dunedin ​said, “If the possibility of danger emerging is only a
mere possibility which would never occur to the mind of a
reasonable man, then there is no negligence in not having taken
extraordinary precaution. ​People must guard against reasonable
probability, but they are not bound to guard against extraordinary
possibility.​”
2. DEFENDANT MADE A BREACH OF THAT DUTY
 VANAJ VIDYAN

○ Breach of duty means non-observance of due care required on part of the

defendant.​ The standard of due care is that required of a reasonable man.
○ The standard of care is decided by three conditions-
i. Importance of Object to be achieved
● Law does not require taking of the greatest possible care,
but reasonable care.
● In some particular cases, law permits the taking of chances,
keeping in mind the larger public interest. For instance,
trains are allowed to run at high speeds so that
communication is not hampered, despite more possibiliity of
accidents.
● Latimere v. A.E.C. Ltd.
○ There was a rain due to which oil leaked, making the
factory slippery. When factory reopened, the owner
spread dust over the factory so that no one slips, but
some portion left. One worker got injured by slipping,
beinging up a case, and said that factory should have
been closed for a longer period. The House of Lords
said that 4,000 people working in the factory were
daily wage labourers. Moreover, all reasonable
precautions were taken, closing the factory for some
days and also spreading dust. Moreover, the risk of
being slippery, was not that great of a risk.
ii. Magnitude of risk
● The degree of risk varies depending upon the facts and
circumstances. It depends upon the work being done.
Driving in rain vs Driving on a normal day enhances the care
required.
● Mysore State Road Transport Corporation vs. Albert Disa
○ This case went in appeal against decision of tribunal
in favour of plaintiff. The corporation went to HC in
appeal. A bus belonging to the State Corporation, in
which the plaintiff was travelling. Some animals in the
opposite side, to save them, the driver went off-track,
wherein due to slippery mud due to rain the previous
day, the wheel of the bus got stuck and toppled. The
plaintiff sued for injuries sustained.
○ In this Karnataka High Court judgement, ​Justice
Venkataramiya ​said, “Negligence is failure in the duty
 VANAJ VIDYAN

to take due care. The expression due connates that

degree of care which a reasonable man ought to take
in a given set of circumstances. What may amount to
negligent act in a particular place and occasion may
not be a negligent act in another place or occasion. In
deciding what care was called for by a particular
situation, one useful test is to enquire how obvious
the risk must have been to an ordinary prudent man.
The question in each case, therefore, depends upon
its own facts.”
○ The HC overturned the tribunal’s judgement, as there
was no negligence on part of the driver. The driver
had tried to save the animal as part of a natural
reaction. There wasn't something which the driver
could anticipate, and couldn’t have taken more
precaution. Moreover, the driver had been employed
in the corporation for a long time, and there was no
rash behaviour displayed previously as well.
iii. Amount of consideration to be paid
● The higher amount paid, more is the care required. If the
defendant is taking high charges, the amount of care
required is much higher. For instance, more duty of care is
required when taking Bisleri paying ₹20, than when paying
₹2 per glass on roadside.
● Klaus Mittel Bachert v. East India Hotels Ltd.
○ The plaintiff was staying in a Delhi hotel. He went for
a swim, but due to structure being weak, he sustained
injuries and went into coma for a few days, after
which he died. The HC held that in a five-star, duty of
care is very high, and thus, a compensation of ₹50
lakhs had to be paid.
3. PLAINTIFF SUFFERED DAMAGES AS A CONSEQUENCE OF THAT BREACH
○ The plaintiff has to show that the damage suffered isn't very remote, and
the damage suffered is related to the act done by the defendant.

PROOF OF NEGLIGENCE
It is for the plaintiff to prove that damage has been suffered. Those claiming for
compensation have to prove that wrong has been done. ​Res ipsa loquitur,​
meaning that things speak for themselves. When things are so obvious that only
 VANAJ VIDYAN

one inference can be drawn, the burden of proof is not on the plaintiff. Benefit is
given to the plaintiff, and onus of proof is on the defendant, who have to show
that it was an inevitable accident. The onus of proof in such cases shifts. If the
defendant has proof that there was no negligence on part of the defendant, and
whatever harm was caused was caused due to another reason, the onus is again
shited on the plaintiff.
The ​Hasberth Law of England​ defined ​res ipsa loquitur​, saying, “In exception to the
general rule that the burden of proof of the alleged negligence is in the first
instance on the plaintiff, occurs wherever the facts already established are such
that the proper and natural inference immediately arising from them is that the
injury complained of was caused by the defendant’s negligence, or where the
event charged as negligence tells its own own story of negligence on the part of
the defendant, the story so told bing clear and unambiguous, to these cases the
maxim ​res ipsa loquitur ​applies. Where the doctrine applies, a presumption of
fault is raised against the defendant which, if he is to succeed, in his defence
must be overthrown by contrary evidence. The burden on the defendant begins
to show how the act complained of could reasonably happen without negligence
on his part.”

Jasbir Kaur v. State of Punjab

A newly born child in a government hospital went missing. It was seen that a cat had
taken the child and tried to eat it, wherein one eye was also eaten. It was
contended that this wouldn't have happened if due care was taken. It look very
apparent that the hospital administration was at fault.

Nihal Kaur v. Director, PGI Chandigarh

Scissors was left inside the patient. Very apparent, and directed to pay
compensation.

A person engaged in a profession is supposed to have basic knowledge, and

reasonable care is required.
MEDICAL NEGLIGENCE
A doctor has three important duties of care-
1. The first is whether to take the case or not.
2. What kind of treatment is to be given.
3. The administration of that treatment.

Lakshman Balkrishna Joshi v. Trimbak Babu Godbole

 VANAJ VIDYAN

In this case, the plaintiff’s son was injured while on the beach, and was fractured in
the leg. The doctor, without giving anastheisa, tried giving him a cure. It was so
painful, that he died in shock. A case was brought up, and the court held that the
doctor was negligent, and should have first given an anaesthesia. The SC said,
“The doctor must bring to his task a reasonable degree of skill and knowledge,
and must exercise a reasonable degree of care. Neither the very highest, nor a
very low degree of care and competence just in the light of the particular
circumstances of each case is what the law requires.” ​The court thus
emphasised that reasonable skill shall be taken and is required, and not very
high.

Philips India Ltd. v. Kunju Punnu

In this case, the plaintiff’s son treated for illness by the defendant’s company doctor,
and died. THe complainant said that son died due to negligence. The doctor
held, that the complainants couldn’t prove that there was negligence. Moreover,
what is required is reasonable case, and not very high. An argument that some
different doctor would have saved and this one couldn’t and was thus negligent,
does not hold ground. What holds ground, is whether this doctor possessed this
qualification or not. The court thus ruled that the doctor was not liable.

Dr. TT Thomas vs. Elissar

In this case, the Kerala HC said that in case a doctor fails to perform an emergency
operation, he would be liable for negligence. In this case, the patient came with
acute pain, and found that it was due to appendix. Operation wasn’t performed
for two days, and patient died. Held, that the doctor was liable as he should have
performed the emergency operation, and the patient died due to negligence.

Tokugha v. Apollo Hospital Enterprises Ltd.

The plaintiff was himself a doctor and supposed to marry a lady. The doc suffered
from AIDS, and this information was given to the wife. The marriage was called
off. THe doc brought a suit against the hospital, and this right to privacy was
violated. The court held, that right to privacy was not an absolute right, and if
made public, would have led to right to life of that wife being infected. This
information can be made public in public interest.

Jacob Matthew v. State of Punjab,​ 2005

CMC Hospital, Ludhiana. The person had breathing problem, so the attendant of the
patient called for nurse and doctor, and tried to give oxygen. But oxygen cylinder
was empty, and no other cylinder available, due to which patient died. Case was
 VANAJ VIDYAN

brought for compensation. The SC said, “The negligence in the context of

medical profession necessarily calls for a treatment with a difference. To infer
rashness or negligence on the part of a professional, in particular a doctor,
additional consideration applies. A simple lack of care and error of judgement, or
an accident is not a proof of negligence on the part of a medical professional. ​So
long as a doctor follows a practice acceptable to the medical profession of that
day, he cannot be held liable for negligence merely because a better alternative
course or method of treatment was also available, or simply because a more
skilled doctor would not have chosen to follow or restore to that practice or
procedure which the accused followed. When it comes to the failure of taking
precautions, what has to be seen is whether those precautions were taken which
the ordinary experience of men has found to be sufficient. ​A failure to use a
special or extraordinary precaution which might have prevented the particular
happening cannot be the standard for judging the alleged negligent. When the
charge of negligence arises due to failure to use some particular equipment, the
charge would fail if the equipment was not generally available at that particular
time at which it is to be suggested that it should have been used.”​ The doctor is
not liable, but case can be brought against hospital administration, if cylinders not
available. The court stressed importance on two questions-​ 1. Whether the
person has the requisite skills or not? 2. If he has those skills, has he used those
skills with reasonable competence or not?​ This is how the person can be held
liable.

CONTRIBUTORY NEGLIGENCE
When the plaintiff does not take the reasonable care required of a prudent man, and
the ultimate harm suffered by the act of defendant has a contributory factor which
is negligence on part of the plaintiff.​ That negligence by plaintiff has led to the
ultimate harm suffered by the plaintiff. These are the cases of contributory
negligence.
Contributory negligence is not a defence, and is pleaded by the defendant, that there
has been contributory negligence on part of the plaintiff. The plaintiff now has to
show that he has taken the reasonable care required, and is thus not responsible
for contributory negligence.
The case of ​Sushma Mitra vs. Madhya Pradesh State Road Transportation​, wherein
the truck driver was held negligent when the plaintiff had her hand outside of the
bus. The defendants had taken the defence that there was contributory
negligence by keeping her hand out. The court stated that if there was a crowded
 VANAJ VIDYAN

city or town, then there might have been contributory negligence. However, the
bus was on a highway, and it is reasonable to keep the hand outside. It is more
like a normal practice, and there is nothing negligent about this act.

In cases of contributory negligence, there has to be a relationship between the

negligent act of the plaintiff and the harm suffered. The plaintiff’s act should be a
contributory factor in the harm suffered. If there is no relationship, cannot be held
liable.
Agya Kaur v. PEPSU Road Transport Corporation
(PEPSU is a union of Patiala and East Punjab Union.)
There was a rickshaw puller on the correct side of the road, and truck coming
from wrong side and in rash speed, and hit the rickshaw puller. This didn't stop
the driver, and he stopped only after hitting an electric pole. A case was brought
by the rickshaw puller. The defence taken by PEPSU was that the rickshaw was
overcrowded and thus there was contributory negligence. The court held that
there would have been the same consequences even if two people were sitting
instead of the four. The harm suffered is consequence of driver only. His
negligence is not contributing to the harm suffered. There is no relationship
between the harm suffered and the negligence on his part, and since this could
not be established here, thus, this defence was not allowed.

Earlier in the common law, contributory negligence was considered a proper

defence, and the defendant could escape liability completely by showing some
negligence. This was highly criticized. Thus, the courts came up with the Last
Opportunity rule. As per the Last Opportunity Rule, whoever has the last
opportunity to avoid the accident, would be liable to pay the compensation,
irrespective of whether he is the plaintiff or defendant. This doctrine has been
applied in many cases.
Ridley v. L&N WR Railways
In this case, the plaintiff was the owner of a coal mine, and a bridge. The truck of
the defendant that had come to take coal. The plaintiff overloaded the
defendant’s truck. It was so overloaded that the truck could not pass from the
bridge, and got stuck. The driver did not take any precaution, and with the help of
other drivers of the defendant, tried to get the truck passed. While the truck
passed successfully, the bridge collapsed. The plaintiff brought up a case of
negligence and rash driving against the defendant, and the defendant took the
plea that overloading was done by plaintiff, and thus contributory negligence. The
court held that the last opportunity to avoid this accident was with the truck driver.
But instead of unloading, he took help of other drivers. The last opportunity lied
 VANAJ VIDYAN

with the defendant’s driver. The court refused to give defence of contributory
negligence, and the defendants had to pay.

However, this rule of last opportunity was also very unsatisfactory, since the
contributory negligent party escapes all liability, and all responsibility is on the
shoulder of the person with last opportunity only. Criticized that not just and
equitable.
Thus, England came up with an act- ​Law Reform (Contributory Negligence) Act,
1945. ​Section 1 (1)​ ​of this Act states, “When any person suffers damage as the
result partly of his own fault and partly of the fault of any other person or persons,
a claim in respect of that damage shall not be defeated by reason of the fault of
the person suffering the damage but the damage recoverable in respect thereof
shall be reduced to such extent as the court thinks just and equitable, having
regard to the claimant’s share in the responsibility for the damage.” ​This section
states that the court, in accordance with facts and circumstances, would reduce
the damages.

In India, there is no central legislation like the 1945 act. The courts in India have
followed this practice, and the courts have reduced the amount keeping the
contributory negligence in consideration. In the case of ​Rural Transport
Corporation v. Belzum Beebee​, 50% compensation was given, as there was
negligence by agreeing to sit on the rooftop.

COMPOSITE NEGLIGENCE
These are those cases where two or more persons are negligent, resulting in some
damage. The person responsible for causing those damages, are called ​joint
tortfeasors​. Here, it is not necessary the negligence of the plaintiff. The
relationship between them.
The Chief Justice of MP HC, ​Shivdayal​, defined composite negligence. “When a
person is injured without any negligence on his part, but as a result of the
combined effort of the negligence of two other persons, it is not a case of
contributory negligence but it is a case of what has been stated by ​Pollock​ as
‘injury by composite negligence’​.”

● In these cases, there is no negligence on part of the plaintiff, but on part of two or
three defendants.
● The liability is ​joint and several​. The court decides the amount to be paid, but the
court doesn't fix the amount to be paid by defendant A, B, C individually.
Meaning, that the plaintiff can claim the whole amount from A, and A can later
 VANAJ VIDYAN

claim from B and C. If defendant B dies or becomes bankrupt, others would have
to pay. Overall, the court doesn't have to look into as to which particular
defendant would be paying.

TRESPASS
BATTERY
Section 350 of IPC​. Use of force without any lawful justification.
The amount of force used shows the mental element present.
Physical touch is not important. Use of stick or hot water without any lawful
justification is also battery.
If force is used to remove a person from property, it would not amount to battery.
However, that force should be reasonable.

Cole vs. Turner

The husband and wife brought a case of battery that someone touched them. The
issue before the court was whether a normal touch would amount to battery. The
court stated that a normal touch would not amount to battery, and a mental
element of intention or anger shall also be present. ​J. Hault​ said three things-
1. The least touching of another in anger is battery.
2. If two or more persons met in a narrow passage and without any violence or
design of harm, the one touches the other gently, it will be no battery.
3. If any of them uses violence against the other to force his way in a rude and
inordinate manner, it will be a battery.
Battery is criminal force, section 350.

ASSAULT
Assault is section 351.
A reasonable apprehension is created in the mind of the plaintiff. The reasonable
apprehension needs to be created, that some threat is there. Generally, assault
precedes battery.
Bavisetti Venkatasurya Rao​ ​v. Nandipati Muthaiya
 VANAJ VIDYAN

A farmer went to a munsif. The farmer was wearing a gold earring. The munsif asked for
the earring, and called the village goldsmith to take the earring. As soon as the
goldsmith came, a friend of the farmer paid the money. The goldsmith and munsif went
away right then. In a case for assault, the court held that there was no reasonable
apprehension, as they went aay soon after getting the money.

The courts have held that if the apprehension has been created in the mind of the
person, even if that person is stopped before making the damage, assault would be
there.
Stephens v. Myers
The plaintiff was chairperson of a council presiding over a meeting in church. In a series
of heated arguments, the defendant was asked to leave the room by the chairperson.
The defendant was coming towards the chairperson, but was stopped by the church
warden. In a suit for assault, the court held that apprehension was there, and thus,
assault was committed.

Assault and battery are thus a civil wrong, and a criminal wrong.

MALICIOUS PROSECUTION
Tort tries to bring people who have done wrong, to justice. It also has to ensure, that
there is no false accusation or harassment on/of anybody.
Malicious prosecution means institution of ​criminal proceeding​ against someone
without any reasonable cause.​ ​The remedy of malicious prosecution, is generally in
criminal cases.

FIVE ESSENTIAL CONDITIONS

1. Plaintiff should be prosecuted by the defendant.
2. The proceeding should have terminated in favour of the plaintiff.
3. The prosecution should have been started without any reasonable or probable
cause.
4. The prosecution was initiated with a malicious intention, and not with the mere
intention of carrying the law into effect.
5. The plaintiff suffered damage to his reputation, or the the safety of person, or to
the security of his property.

Abrath v. N.E. Railways

 VANAJ VIDYAN

Justice Bowen​, in this House of Lords case, said, “In an action for malicious
prosecution, the plaintiff has to prove, first, that he was innocent, and that his innocence
was pronounced by the court before which the accusation was made. Secondly, that
there was want of reasonable and probable cause for the prosecution. And lastly, that
the proceedings of which he complains were initiated with a malicious intention, i.e.,
from an indirect and improper motive, and not in furtherance of justice.”

CONDITION 1:​ PROSECUTION TO BE INITIATED BY DEFENDANT

Prosecution, is generally in criminal cases. And it can only be in front of a judicial
authority- judge, magistrate or tribunal. Going and complaining to a police officer would
not amount to malicious prosecution, since it is not prosecution.

Nagendra Nath Rai v. Basant Das

In this case, a theft was committed in the house of the defendant, and the defendant
complained to the police that theft was by plaintiff, who was arrested and questioned,
and then allowed to leave. He brought a case of malicious prosecution. The court held
that there was no prosecution.

Bolandanda Pemmayya v. Ayaradara

The defendant in whose house there was theft accused the plaintiff. The sub-inspector
arrested the plaintiff and searched the house. The plaintiff was let go. In a case for
malicious prosecution, the court ruled that this is not prosecution, and remedy cannot be
given for this.

The second aspect is, that the case shall be started by the defendant. Now, in criminal
cases, the plaintiff is the State. Thus, here, for malicious prosecution, active role of the
defendant shall be seen. Meaning, he should have brought false evidence, or been a
witness, help the police in getting evidence or otherwise. Meaning, active evidence to
ensure he is prosecuted, so that he can be termed the prosecution as well. Simply
complaining to the police would not be malicious prosecution.

Pannelal v. Srikrishna
The court in this case said, “The fact that a private person who merely makes a
statement of complaint to the police would not make him the prosecutor. To become
prosecutor, he must be actively instrumental in putting the criminal law in motion.”

Gaya Prasad v. Bhagat Singh

The Privy Council said, “In India, the police has special power in regard to investigation
of criminal charges, and it depends very much on the result of their investigation
 VANAJ VIDYAN

whether or not further proceedings are taken against the person accused. If therefore a
complainant does not go beyond giving what he believes to be correct information to the
police, and the police without further inference on his part thinks fit to prosecute, it
would be improper to make him responsible in damages for the failure of the
prosecution.” The second scenario which they talk about- “But if the charge is false to
the knowledge of the complainant, if he misled the police by bringing witnesses to
support, if he influences the police to assist him in sending an innocent man for trial
before the Magistrate, it would be equally improper to allow him to escape liability
because the prosecution has not technically been conducted by him. The question in all
cases of this kind must be, ‘who was the prosecutor?’, and the answer must depend
upon the whole circumstances of the case. The conduct of the complainant before and
after making the charges must also be taken into consideration.”

CONDITION 2: ​ABSENCE OF ANY REASONABLE OR PROBABLE CAUSE

The onus of proof of malicious prosecution lies on the plaintiff. He has to prove that
there was no reasonable or probable cause.
1. There has to be an honest belief of the accuser in guilt of the accused.
2. Such belief must be based on an honest conviction of the existence of
circumstances which led the accuser to that conclusion.
3. Belief must be based upon a reasonable ground.
4. Circumstances, so believed and relied on by the accuser, must be such as
amount to a reasonable ground for belief in the guilt of the accused.

CONDITION 3: ​MALICIOUS INTENTION

Malicious refers to improper and/or wrongful motive. The idea of bringing a malicious
case is not to get justice, but to injure the reputation of the person, or harm him or his
reputation. The plaintiff has to prove that malicious intent was present.

Bhogilal v. Saroj Bahen

An agreement regarding sale of house. A agreed to buy B’s property of ₹50,000/-, and
paid ₹2,000/-. He later came to know the house was mortgaged. And this fact was
concealed even after being asked. He brought up a case of cheating against B. B was
discharged by the court, who then brought up a case of malicious intention. The court
held that there was no malicious intent, since A had honest belief.
(Discharged is defined in ​section 227 of the CrPC​. When the charges have been
framed by the court based on the police’s chargesheet, there is trial or acquittal.
However, when the police is unable to get the court to admit the chargesheet, the
person is discharged.)
 VANAJ VIDYAN

CONDITION 4: ​VERDICT IN FAVOUR OF PLAINTIFF

The termination of proceedings in favor of plaintiff does not mean that there is
innocence of the plaintiff, and simply states the absence of guilt. For instance, on
technical grounds, the case can be discontinued or be taken back, which makes it in
favour of plaintiff.
Also, if in appeal has the plaintiff been acquitted, and not in lower court, he can bring up
a case of malicious prosecution.

CONDITION 5: ​DAMAGES
Reputation, damage to plaintiff’s person, and damage to property. (check) These are
the four grounds to determine quantum of damages-
1. Nature of the offence with which the plaintiff was charged.
2. Inconvenience to which the plaintiff was subjected.
3. Monetary losses.
4. Status and the position of the person prosecuted.
__
Normally, malicious prosecution is only in criminal cases, and not mostly in civil cases.
This is because-
1. In civil actions, when false suit, it is dismissed at hearing.
2. Secondly, when opponent brings up the case, the costs and court fee has to be
paid by that person.
3. Thirdly, the court does not generally pay mental agony into that much
consideration.
If we look at ​CPC, section 35A ​states that compensation can be given for false cases.
In some civil cases, malicious prosecution is allowed- bankruptcy, liquidation of
company in insolvency, etc. When these are found to be false, malicious prosecution is
allowed, since they affect the reputation in the society.

FALSE IMPRISONMENT
False imprisonment refers to a ​total​ restrain on the liberty or movement for some
period, ​without any lawful justification​.
In IPC, however, even partial restrainis punishable.​ Total restrain is called wrongful
confinement, ​section 340 of IPC​.
Section 339 of IPC​ gives wrongful restrain, which is partial in nature.
If allowed to go into a direction and not another direction, that is not false imprisonment,
but wrongful restrain. It is only punishable in criminal cases, and not civil.
 VANAJ VIDYAN

Suppose a person is standing armed outside the only door of my house. That would
also be total restraint.

Birds v. Jones
The defendant blocked a public footway. There was boat racing going on near the
footway. He was charging people for seeing the boat racing, on the public road. The
plaintiff was asked to pay to go through that road, and he refused to pay. He had to stay
there for half an hour. He brought up a case of false imprisonment
The court held, that the plaintiff was allowed to go back, and thus, there was no total
restraint, and thus no false imprisonment. The case was thus dismissed.

If not allowed to go through door, but there are windows, it would not be false
imprisonment. When there are no means at all, it is false imprisonment. However, these
means should be reasonable. Windows at 100 feet would not be considered reasonable
means.

The next question is, whether knowledge of being imprisoned is important.

Herring vs. Boyle
The court stated that knowledge is essential for being falsely imprisoned. There was a
boy who was not allowed to go since fee had not be paid. When the mother came to the
school, the administration told the same to the mother. The boy was however not
present there when this was told to the mother. In a case brought for false
imprisonment, the court stated the boy didn't have the knowledge, and would thus not
constitute false imprisonment.

Merring v. Grahame White Aviation Corporation

The plaintiff was an employee in the aviation company. It was suspected that he had
stolen certain property. He was asked to come to a waiting room for enquiry. While he
was sitting, the security staff was sitting outside the waiting room. After a while, the
police came and took him in custody. The person was later acquitted, and brought up a
case of false imprisonment. The court held that the police was not acting as an agent of
the company, and thus not responsible for unlawful restraint. However, the company
would be responsible. Even though the person did not have this knowledge of being
falsely imprisoned, the people outside may be communicating to the world that the
person is imprisoned. ​Lord Atkin ​said, “It appears to me that a person could be
imprisoned without his knowledge. I think that a person can be imprisoned while he is
asleep, while he is in a state of drunkenness, while he is unconscious, and while he is
lunatic. Those are the cases, where it seems to me that a person might probably
complain if he was imprisoned while the imprisonment began and ceased, while he was
 VANAJ VIDYAN

in that state. Of course, the damages might be diminished and would be affected by the
question whether he was conscious of it or not.”
The final standing now, is that knowledge is not required.

Another important ground is, that the detention is unlawful detention.

If a person has been acquitted by the court but has not been released by the jail
authorities, that would amount to false imprisonment.

Rudal Shah vs. State of Bihar

The accused was acquitted in 1968, but not released till 1982. He was in jail for 14
years. The reasoning given was that the jail was giving him medical facilities. The SC
gave him interim relief of ₹35,000/-.

When there is justification of detaining a person, it would not be false imprisonment.

Robinson vs. Balmain New Ferry Co. Ltd.
The plaintiff entered the defendant’s dock, to cross a river on a boat provided by the
defendant company. A certain amount of money had to be paid to cross the river, which
the plaintiff paid. But seeing one hour waiting, he wanted to return. As per a notice
board, the plaintiff had to pay when wanted to return. In a suit for false imprisonment,
the court stated that there was proper notice, and thus no false imprisonment.

Section 82 of the CrPC​ states that under a cognizable offence (arrest without warrant
permissible) or when the person is a proclaimed offender, even a private person can
arrest the accused. In this regard, if a private person arrests someone, without any
unneeded delay, should hand him over to the police. If not handed over to the police
within a reasonable time, that would constitute false imprisonment.

John Louis & Co. v. Times

The plaintiff and daughter went to a shop, where the daughter committed theft of some
calendars. They were detained and asked to wait till the MD came. The police came in
an hour, and arrested them. The mother and daughter were tried, where mother was
found not guilty and daughter found guilty. In a case of false imprisonment brought by
the mother, the court held that the shop could not determine whether the mother was
guilty or not since it was not their duty, and the police’s work. There was thus no false
imprisonment, as there was reasonable apprehension.